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. --------- 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 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 2 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. 3