Judgment:
A.S. Naidu, J.
1. The petitioner faced trial in the Court of learned J.M.F.C, Rampur for commission of offence punishable under Section 47(a) of the Bihar and Orissa Excise Act in 2(a) C.C. No.8 of 1992/Tr. No. 872 of 1992. It was alleged by the prosecution that on 24.9.1992 at about 1.15 P.M. the Sub-Inspector of Excise, P.W.2, along with his staff conducted a search of the residential house of the accused after observing all the formalities of search and seizure and recovered 25 litres of I.D. liquor kept in one motor tube and two jerricans. The seizure was made in presence of witnesses. The contents were tested at the spot by blue litmus paper and also by hydrometer. After being satisfied on tests that the liquid was nothing but I.D. liquor, the same was seized and seizure list was prepared vide Ext. 1/1. After completion of inquiry, prosecution report was submitted against the petitioner.
2. The plea of the defence was one of denial.
3. In order to substantiate the case, the prosecution examined three witnesses and exhibited the seizure list as. Ext. 1. The prosecution also produced two plastic jerricans containing 4 litres and 3 litres of I.D. liquor respectively, which were marked as M. Os. 1 and II. The sample of I.D. liquor seized was marked as M.O.III. The defence neither adduced any oral evidence nor exhibited any document in its support. After evaluating the evidence, both oral and documentary, the trial Court held the petitioner guilty, convicted him for commission of offence under Section 47(a) of Bihar and Orissa Excise Act and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 1000/- in default to undergo R.I. for another one month. The said order was challenged by the petitioner before the learned Sessions Judge, Bolangir-Sonepur, Bolangir in Criminal Appeal No. 104 of 1994. The appellate Court after a vivid discussion of the evidence confirmed the conviction, but then reduced the substantive sentence from 6 months R.I. to one month's R.I., and fine from Rs. 1000/- to Rs. 200/- The appellate Court also directed that in default of payment of fine, the petitioner shall undergo R.I. for one month. Hence, the present appeal.
4. Mr. D.P. Dhal, learned counsel for the petitioner, forcefully submitted that the Courts below have not properly appreciated the evidence inasmuch as the mandatory requirements of search and seizure as contemplated in the Bihar and Orissa Excise Act were not followed by the prosecuting agency and as such, the seizure should be disbelieved. He also submitted that the evidence of P.Ws.2 and 3, who were official witnesses and interested in the prosecution case, is not sufficient to arrive at a conclusion that the petitioner committed any crime. According to him, the judgment of conviction and sentence is based on extraneous reasons and should be set aside.
5. Mr. M.R. Dhal, learned Addl. Standing Counsel, on the other hand submitted that the Courts below properlyappreciated the evidence and the findings arrived at were in consonance with the evidence on record. He also submitted that all the paraphernalia required before seizure of the article were sacrosanctly followed by the Sub-Inspector of Excise, P.W.2, who has also proved the seizure. The evidence of P.Ws.l, 2 and 3 clearly reveals that the petitioner was an unauthorized vendor of I.D. liquor and there is no reason to disbelieve such evidence. According to Mr. Dhal only because the witnesses were official witnesses, their evidence, if otherwise inspires confidence, should not be ignored.
6. After hearing the learned counsel for the parties and after perusing the materials available on record, I am of the view that the Courts below have rightly come to the conclusion that the petitioner committed the alleged offence. I do not find any illegalities or irregularities in the said finding. However, the incident took place as long back as on 24.9.1992 and 13 years have passed in the meanwhile. The petitioner has become very old. He must be aged about 85 years by now. At this stage, it would not be just and proper to send him to jail.
7. For the foregoing discussions, though I confirm the conviction of the petitioner, in view of the peculiar facts and circumstances of the case and taking into consideration the age of the petitioner, I am inclined to take a lenient view in the matter. I, therefore, set aside the substantive sentence passed and confirmed by the Courts below against the petitioner and direct the petitioner to pay a fine of Rs. 1500/- in default; to undergo R.I. for a period of three months.
8. With the aforesaid modification of sentence, the revision is dismissed.