HIGH COURT OF ORISSA : CUTTACK CRLREV NO.713 OF 2005 From a judgment dated 20.09.2005 passed by Shri B.B.Patnaik Additional Sessions Judge (F.T.C.), Chhatrapur in Crl.Apepal No.23 of 2005 (GDC). G.Madhab Reddy ……. Petitioner. Versus. State of Orissa ……….. Opp.party For petitioner : Mr. N.C.Mishra For opp. party : Additional Standing Counsel PRESENT THE HON’BLE SHRI JUSTICE B.K.NAYAK -------------------------------------------------------------------------------------- Date of hearing : 26.03.2010 : Date of judgment: 26.03.2010 B.K.NAYAK, J. This revision is directed against the confirming judgment passed by the learned courts below convicting the petitioner under Section 47(a) of the Bihar and Orissa Excise Act and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for more six months. 2. The prosecution case, in 2 (a) C.C. Case No.15 of 2003 of the court of learned J.M.F.C., Chhatrapur in which the petitioner stood trial, is that on 22.07.2002 at about 8.30 P.M., the S.I. of Excise, Chhatrapur (P.W.3) along with his staff while performing patrol duty at village-Gedalapalli, on suspicion searched the betel shop of the petitioner in presence of witnesses and recovered one plastic Jerican containing 10 litres of I.D. liquor. The S.I. of Excise subjected the liquors to blue litmus paper and hydrometer tests and also smell test and by virtue of his specialised training and long experience in the department, he came to the conclusion that the seized liquor was I.D.liquor and accordingly he seized the liquor and prepared a seizure list and served a copy of the same to the accused-petitioner and after completion of investigation submitted prosecution report under section 47(a) of the Bihar and Orissa Excise Act. The defence plea is one of complete denial of the occurrence. During trial, the prosecution examined three witnesses. P.W.1 is said to be an independent witness to seizure, who turned hostile and did not support the prosecution case. P.W.2 is an Excise Constable and P.W. 3 is the S.I. of Excise, who conducted the search and seizure. Seizure list was proved as Ext.1 by the official witnesses. The accused also examined a co-villager as D.W.l 3. On consideration of the prosecution evidence and by discarding the evidence adduced from the side of the defence the learned trial Court found the accused-petitioner guilty and accordingly convicted and sentenced him as aforesaid. 4. The petitioner carried on appeal bearing Crl.Appeal No.23 of 2005(GDC) which was heard by the learned Additional Sessions Judge, Chhatrapur, who confirmed the trial court’s judgment of conviction and sentence and dismissed the appeal. 5. In assailing the impugned judgment, the learned counsel for the petitioner urges that in absence of chemical examination of the seized article the learned courts below come to a wrong conclusion that the material alleged to have been seized was I.D.liquor. He further submits that the officer concerned (P.W.3) had not successfully proved that he was having distillery training and long experience in testing liquor. It is his further submission that there is no evidence at all that the alleged seizure was made from the exclusive and conscious possession of the petitioner. 2 Learned Additional Government Advocate, on the other hand contends that the evidence of official witnesses is clear and cogent and unimpeachable, which is sufficient to prove search and seizure in absence of any independent witness. He further submits that the specialised training and experience of P.W.3 with regard to his ability to test liquor have not been specifically challenged by the defence while cross-examining the prosecution witnesses. The evidence of P.W.3 that he was trained and experienced given in examination-in-chief, therefore, should not be disbelieved. He further submits that both P.Ws.2 and 3 have stated to have searched the betel shop of the petitioner and found the I.D. liquor and as such conscious and exclusive possession of liquor by the petitioner stands proved. 6. It is well settled that a chemical test is the surest test of I.D.liquor and that where chemical test has not been done and other test like blue litmus paper and hydrometer test and smell test etc. has been done by an officer who is specialy trained and has long experience can be accepted as expert evidence as a substitute to chemical test. The cases of Subas Rout and another v. State of Orissa, (2000) 18 OCR 438 and Rama Chandra Mallik v. State of Orissa, 2010(1) OLR 506) may be referred to in this regard. 7. Coming to the evidence, it is found that P.W.3 who conducted search and seizure has stated that he conducted blue litmus paper test of the seized article which turned into red and also conducted hydrometer test and found the temperature of the liquor 650F with indication 80 under strength 420 U P. Besides he also conducted the smell test and has stated specifically that he has undergone distillery training and has sufficient service experience and from the aforesaid tests came to the conclusion that the seized liquid was nothing but I.D.liquor. It is found from the cross-examination of P.W.3 that only one question was put by the defence lawyer as to whether P.W.3 has produced any 3 certificate with regard to his training and experience. But nowhere any suggestion has been given that he was neither trained nor sufficiently experienced. Without there being any such suggestion from the side of the defence there is no reason to disbelieve the evidence of P.W.3 that he had undergone distillery training and gained sufficient experience in view of length of his service in the department, merely because he said that he had not produced the training certificate. In the circumstances, the contention of the learned counsel for the petitioner that there is no proof that the seized article was not I.D.liquor cannot be accepted. 8. With regard to the exclusive and conscious possession of the petitioner over the betel shop wherefrom the liquor in question was allegedly seized, there is only bald statements in the deposition of P.Ws.2 and 3 that in course of patrol duty on the date of occurrence, P.W.3 searched the betel shop of the petitioner at Gedalapalli. Apart from the fact that the ownership of the betel shop has not been proved by the prosecution, none of the prosecution witnesses has even stated that the accused-petitioner was present in the shop when it was searched. There is no evidence at all as to whether the shop was closed or open or who was present in the shop or who was transacting the business therein at the relevant time. In absence of evidence in this regard mere statement of official witness that they searched the betel shop of the accused is not sufficient to prove exclusive and conscious possession of the accused over the shop and the articles kept therein. Added to this, P.W.1 the only independent witness to the seizure has not supported the prosecution case and, on the contrary, has stated that some excise people came by a motorcycle and took his thumb impression on a paper at a place about 4 K.Ms away from the alleged place of occurrence. The prosecution has even not thought it proper to cross-examine P.W.1. It is, therefore, clear that the prosecution has failed to prove that seizure was made 4 from exclusive and conscious possession of the petitioner. It is settled law that in the absence of proof of conscious and exclusive possession of the contraband article by the accused there can be no conviction of the accused. Reference in this regard be made to the case of Rama Chandra Mallik (supra). 9. In the result, the order of conviction and sentence passed by the learned Courts below cannot be sustained which are accordingly set aside and the accused-petitioner is acquitted. 10. The Revision application is accordingly allowed. ………………………. B.K.Nayak,J. Orissa High Court, Cuttack The 26 th . March, 2010/Rks. 5