B. Panigrahi, J.
1. Criminal Revision No. 108 of 1995 is directed against the judgment and order of the learned Sessions Judge, Koraput-Jeypore dated 23.11.1994 in Criminal Appeal No. 64/94 and Criminal Revision No. 61/96 is directed against the judgment and order of the learned Addl. Sessions Judge, Khurda in Criminal Appeal No. 139/122/27 of 1995/92 dated 5.2.96. The aforesaid Criminal Appeals have been dismissed by the learned Appellate Courts under Section 47(a) and (f) of the Bihar and Orissa Excise Act. Hence these revisions.
2. In Criminal Revision No. 108/95 the factual matrix leading to filing of this revision is as follows :
The petitioner was prosecuted under Section 47(a) & (f) of the Bihar and Orissa Excise Act in the Court of Judicial Magistrate, 1st Class, Kashipur at Rayagada. After completion of trial the learned Magistrate convicted the petitioner and sentenced him to undergo R.I. for 6 months and to pay a fine of Rs. 500/- in default to undergo further R.I. for one month on each count. Questioning the validity of the order of conviction passed by the learned Magistrate, the petitioner had moved before the learned Sessions Judge, Koraput-Jeypore and the learned Sessions Judge by order dated 23.11.94 dismissed the appeal by modifying the sentence to undergo R.I. for one month on each count but the imposition of fine remained unaltered.
It is stated in the judgment that on 20.12.1991 at about 2.00 P.M. the S.I. of Excise, Kasipur (P.W.3) conducted a search of the house of the petitioner situated at village Tikiri and recovered one jerricane containing five litres of illicit distilled liquor and two earthen pots each containing ten litres of hot Gur wash. The further case of the prosecution is that after observing all the formalities the S.I. of Excise (P.W.3) seized the contraband articles and took up investigation. After completion of investigation prosecution report was submitted against the present petitioner under Section 47(a) and (f) of the Bihar and Orissa Excise Act.
3. The stand taken by the petitioner was that the articles seized had not been taken from his actual conscious possession nor was it in his domain or control. A further stand was taken that even assuming such seizure was effected, but there was no positive proof that the articles seized was illicit distilled liquor inasmuch as there was no attempt by the prosecution to send the sample of the seized articles for chemical analysis. By mere smell of the contraband articles one could not render any opinion that it was illicit distilled liquor. There has been no evidence that P.W.3, the Excise S.I., had special training or past experience by which he could have positively opined that the seized articles were illicit distilled liquor.
4. In Criminal Revision No. 61 of 1996 the petitioner was prosecuted for commission of an offence under Section 47(a) and (f) of the Bihar and Orissa Excise Act, on the allegation that on 21.5.1991 the Sub-Inspector of Excise Mobile Squad (P.W.4) had gone to village Gudum on patrol duty, he eventually searched the house of the petitioner after observing all formalities and found the petitioner in possession of 12 litres of fermented hot Gur wash kept in an Alluminium Dekchi (M.O.I.), 10 litres of I.D. liquor kept in a Plastic Jerricane and 40 numbers of earthen pots each containing 20 litres of fermented Gur wash. Such seizure was effected in presence of the witnesses and prosecution report was submitted against the petitioner. The petitioner has challenged the legality of the prosecution report on the ground that the seizure was not properly proved to be I.D. liquor by the Excise Sub-Inspector (P.W.4), as he too did not have sufficient expertise knowledge to opine about the seized articles.
5. The facts of both the cases lie within short compass as to whether or not the seized articles from the possession of the petitioners was illicit distilled liquor. So far as seizure of those articles is concerned a faint attempt was made by the learned counsel appearing for the petitioners that the prosecution has not proved beyond reasonable doubt the seizure from the possession of the petitioners except relying on the official witnesses. In this case the evidence of the official witnesses is explicit which has revealed that the I.D. liquor and Gur Wash were recovered from their possession. Nothing was suggested to the official witnesses that out of their inimical relationship with the petitioners they were trying to falsely implicate them in this case and therefore, such cases had been initiated. Therefore, in the above background, the position of law has been well settled that while proving the seizure of I.D. liquor even if the independent witnesses turn hostile, the evidence of the official witnesses as regards seizure can definitely be relied upon.
6. Learned Addl. Government Advocate has relied upon a judgment of this Court reported in 1991 (4) OCR 409 in the case of Sri Buduram Singh v. State of Orissa wherein the learned Single Judge relying on the judgment reported in (1989) 2 OCR 375 in the case of Sukuru Behera v. State held that since there was no perversity in the conclusion arrived at by both the Courts below and there was no procedural irregularity committed by them while effecting seizure, there was little scope for interference by this Court while exercising revisional jurisdiction. Therefore, so far recovery of the material is concerned, the petitioners shall not be permitted to challenge the seizure from their conscious possession.
7. The main thrust of contention raised by Mr. Mishra, learned counsel appearing for the petitioner is that even assuming that some articles had been recovered from the possession of the petitioners, the prosecution has significantly failed to establish by unimpeachable evidence that the recovered articles were I.D. Liquor. The only text that was conducted by the Excise Staff was hydrometer and blue litmus paper test. The evidence led by the prosecution also showed that when the Excise Officer put a piece of litmus paper into the liquid contents of the same had turned red. But it has been held by catena of decisions of this Court that the litmus paper test and also hydrometer test are not surer test to come to a positive conclusion that the seized liquid was I.D. liquor. Without proliferating various judgments of this Court the latest judgment if cited would suffice the purpose. In the case of Minaketan Muduli v. State of Orissa reported in 2000 (II) OLR 647 the learned Single Judge of this Court relied on previous judgments of this Court reported in 1999 (I) OLR 79, (1999) 16 OCR 185 (Laxmidhar Behera v. State of Orissa) and 1993 (II) OLR 392 (Suma Das v. State of Orissa) and held that the prosecution should make all endeavour to get the seized materials tested by Chemical Analysis. That may be regarded as one of the surest test to establish that the seized material was I.D. liquor. Even otherwise the seized materials can be proved to be I.D. liquor on the basis of an opinion of an experienced and specially trained officer, whose evidence will come within the fold of the evidence of an Expert witness as contemplated under Section 45 of the Evidence Act. The question is as to whether can an officer recently join in service, claim as an experienced and specially trained officer. In this regard no guideline has been prescribed by the State Government as to who should be accepted as a specially trained officer so as to rely on their evidence to determine the character of the seized material. Thus, it is high time for the Government to lay down a criteria as to who shall be treated as experienced and specially trained officer for determining the character of the liquid seized from the possession of the accused persons. In the absence of such guidelines it would be risky to rely upon an evidence of a newly recruited officer who would claim as an experienced and specially trained officer for determining the I.D. liquor.
8. In case such question as to whether an officer has taken special training or has past experience to determine the illicit distilled liquor is conferned, it is to be further noted as to upon whom the burden shall lie. It goes without saying that it is open to the prosecution to lead unequivocal evidence that the officer who has seized the liquid has got special training and past experience so that his opinion can be regarded as an opinion of an Expert. In this regard reliance can be placed upon a judgment of Supreme Court reported In AIR 1999 SC 3318 (State of Himachal Pradesh v. Jai Lal and Ors.) where their Lordships have held:
'In order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. In the instant case the expert who was examined as an expert for assessing the fruit bearing capacity of the apple orchards in question stated nothing in his testimony to show that he had made any scientific study or research in assessing the productivity of apple trees in the State of Himachal Pradesh. He does not even state whether he bad undertaken any such work prior to the present case. No doubt as an officer of the Horticulture Department of the State Government he might have acquired some experience in the matter but that is not sufficient to make him an expert in the field and to give the label of 'expert evidence' to his testimony.'
Thus from the aforesaid judgment an indelible impression has been created that the burden lies on the prosecution to prove through clear, cogent and unimpeachable character of evidence that the Excise Officer who intends to prove the seized articles to be I.D. liquor must have past experience as well as special training so as to bring his evidence within the fold of 'expert evidence'. To obviate such anomaly it would be better for the Government to issue a guideline as to who can be regarded as an 'expert' so that his evidence will go a long way in proving the seized articles to be I.D. liquor.
9. In the above two revisions there has been no clear, cogent and convincing evidence that the Excise Officers had either past experience or special training so as to rely on their testimony.
10. Accordingly, the conviction and sentence recorded in the aforesaid appeals by the learned Sessions Judge are hereby set aside.
The revision applications are allowed.