Judgment:
B. Panigrahi, J.
1. This revision is directed against an order passed by the J.M.F.C., Purushottampur in 2{a) CC No. 244/1031 of 1986/92 on 2.2.95 and confirmed by the appellate Court in Crl. Appeal No. 36/77 of 1995 (GDC) on 3.1.96 convicting the petitioner under Section 47(a) of the Bihar and Orissa Excise Act and sentencing him to undergo R.I. for a period of six months and to pay a fine of Rs. 500/-, in default to undergo R.I. for a further period of one month.
2. The case of the prosecution as narrated in the order of the trial Court is as follows :
That on 13.9.86 around 7.30 A.M. the S.I. of Excise, Striking Force, Chatrapur (P.W. 4) searched the house of the petitioner in presence of independent witnesses, recovered and seized a plastic jerrycan containing 20 litres of I.D. liquor. On test by blue litmus paper and hydrometer and from the experience gathered by P.W. 4 he found the contents of the jerrycan to be I.D. liquor.
3. Petitioner's plea was one of the complete denial.
4. Petitioner in his statement Under Section 313, Cr.P.C. has disowned the prosecution case and denied any knowledge with regard to recovery of I.D. liquor.
5. In order to sustain the conviction against the petitioner prosecution had examined 4 witnesses of whom two are said to be independent witnesses, but they did not support the prosecution case. So naturally the prosecution was left with the evidence of the official witnesses. But the learned Magistrate relying on the testimony of the official witnesses convicted the petitioner as aforesaid.
6. Both the Courts below have observed that even after cross-examination nothing could be brought out so as to discredit the testimony of the official witnesses Thus recovery of I.D. liquor from the possession of the petitioner can hardly be disputed.
7. Learned Advocate appearing for the petitioner has made a feeble attempt by questioning that the petitioner was not in conscious possession of the I.D. liquor. On perusal of the seizure list along with the evidence of the official witnesses it is noticed that 20 litres of I.D, liquor contained in a jerrycan was recovered from the possession of the petitioner. Therefore, in this background it would be futile for the petitioner to take a stand that it was not recovered from his conscious possession.
8. Learned counsel for the petitioner advanced a serious contention that since no chemical test has been carried out to determine that the contents of the jerrycan was I.D. liquor only, on the basis of the testimony of official witnesses any positive finding can be arrived at that it contained I.D. liquor, it is noticed from the evidence of P.W. 4 that he is an experienced Excise officer having put in 9 years of service in the Department. It is further found that P.W. 4 has gone for special training. Thus it can be safely regarded that P.W. 4 is an expert and competent to give an opinion with regard to the nature of the substance recovered from the possession of the petitioner. In this background it can be safely concluded that the jerrycan contained 20 litres of I.D. liquor.
9. Learned counsel for the petitioner has fervently pleaded that the case has already suffered for 16 years and at this stage if the petitioner is directed to suffer the imprisonment it would cause severe hardship since he is the only bread earner in his family. Mr. Nanda appearing for the petitioner has relied upon the judgment reported in 78 (1994) CLT 1070 in the case Pramod Kumar Swain v. State of Orissa and contended that in this case the occurrence took place before more than 16 years. There is no further evidence to suggest that the petitioner was involved in similar type of offence previously.
10. In the aforesaid circumstances, keeping in view the principle enunciated in the above case and in order to meet the ends of justice, the sentence of 6 months R.I. is reduced to the sentence already undergone, but, however, the fine amount of Rs. 500/- is enhanced to Rs. 1,000/-, in default to undergo R.I, for 2 months.
11. With the aforesaid modification in sentence the revisional application is dismissed.