Babaji Behera vs Unknown on 2 March, 2010

                         HIGH COURT OF ORISSA: CUTTACK.
                         CRIMINAL REVISION NO. 498 OF 1996

       From the judgment and order dated 28.10.1996 passed by Shri P.B.
       Patnaik, Ist Additional Sessions Judge, Cuttack in Criminal Appeal No. 131
       of 1993 confirming the judgment and order dated 11.2.1993 passed by
       Miss. D. Das, J.M.F.C., Cuttack in 2(a)cc Case No.575 of 1989.

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       Babaji Behera                                    ......           Petitioner

                             -   Versus-

       State of Orissa                                  ......           Opp. Party.


                   For Petitioner     : M/s. B.S. Mishra, U.N. Patnaik,
                                             M.R. Mishra, P.K. Mohanty,
                                             A.K. Mohanty, P.U. Rath,
                                             R.N. Panda and P.R. Mishra

                   For Opp. Party     :      Addl. Standing Counsel.

       PRESENT:

                      THE HONOURABLE SHRI JUSTICE B.K. PATEL
       Date of hearing - 2.3.2010 :  Date of judgment - 2.3.2010

B.K. PATEL, J.      This revision is directed against judgment dated 28.10.1996

       passed by learned Ist Additional Sessions Judge, Cuttack in Criminal

       Appeal No.131 of 1993 confirming the judgment and order dated 11.2.1993

       passed by the learned J.M.F.C., Cuttack in 2(a)cc Case No.575 of 1989

       convicting the petitioner under Section 47(a) of the Bihar and Orissa Excise

       Act and sentencing him to undergo S.I. for six months and to pay fine of

       Rs.500/-, in default, to undergo S.I. for one month.

       2.          Prosecution case is that on 25.10.1989, P.Ws.1 and 2, who are

       Sub-Inspectors of Excise, conducted search of petitioner's house and

       recovered plastic jerrycan (M.O.I) containing 10 liters of I.D. liquor. P.W.2

       took measurement and tested the liquor with blue litmus paper and
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hydrometer.      Thereafter M.O.I was seized under seizure list Ext.1. On

completion of enquiry, prosecution report was submitted         against   the

petitioner. In order to substantiate the allegations, prosecution examined

two witnesses P.Ws.1 and 2 and also relied upon seizure list Ext.I only. No

defence evidence was adduced.

3.            In support of the revision it is contended by the learned

counsel for the petitioner that there is absolutely no evidence on record to

conclude that any intoxicant was seized from petitioner's possession. Both

the learned courts below failed to consider glaring inconsistencies in the

evidence of two official witnesses on the basis of which order of conviction

has been based. Learned counsel for the State supports the impugned

judgments.

4.            In this case, allegation relates to seizure of liquor from the

house stated to be belonging to petitioner. P.W.2 did not depose regarding

presence of any independent witness at the time of search, recovery and

seizure. However, P.W.1 deposed that petitioner's house was searched in

presence of witnesses none of whom has been examined. P.W.1 deposed

that a plastic jar containing 10 liters of liquor was recovered whereas P.W.2

testified that plastic jerrycan M.O.I containing 10 liters of liquor was

recovered.    According to P.W.1, the house consisted of one room only.

However, P.W.2 deposed that the house in question consisted of three

rooms. Neither of the witnesses testified that the petitioner was the sole

occupant of the house. Thus, not only P.Ws.1 and 2 contradict each other

with regard to number of rooms the spot house consists of but also their

evidence does not indicate that M.O.I was recovered from the exclusive

possession of the petitioner. In the absence of any basis to maintain the
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finding that M.O.I was recovered from petitioner's possession, there is no

scope     to    hold     that     the   prosecution   has established commission

of offence under Section 47 (a) of the Bihar and Orissa Excise Act. The

petitioner is entitled to be acquitted.

5.             Accordingly, the revision is allowed.      Judgments in Criminal

Appeal No. 131 of 1993 passed by the learned Ist Additional Sessions

Judge, Cuttack and 2(a)cc Case No.575 of 1989 passed by the learned

J.M.F.C., Cuttack are set aside.


                                                   ...........................
                                                    B.K. Patel, J.

Orissa High Court, Cuttack,
Dated the 2nd March, 2010/B. Jhankar.