Lambodhar Nath Vs. State of Orissa - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - he could have well corroborated this version of p. therefore, it would be unsafe to rely on the evidence of p. law is well settled that if the evidence of such official witnesses do not suffer from any infirmity and is found to be truthful and, therefore, can be relied upon, in such a case no corroboration from any independent source would be necessary.orderd.m. patnaik, j.1. in this revision, the petitioner challenges the legality of the confirming order of conviction and the sentence to undergo simple imprisonment for two months and to pay a fine of rs. 150/-, in default to undergo s.i. for one week more for the offence under section 47(a) of the bihar and orissa excise act (hereinafter to as the 'act').2. prosecution case is, on 29-9-1985 at about 2 p.m., p.w. 1, the sub-inspector of excise along with p.w. 2, the excise constable, on suspicion detained the petitioner who was found carrying on his cycle 20 litres of illicit distilled liquor. he could not account for such possession. the liquid and the containers were seized and p.w. 1 carried on both hydrometer and litmus paper tests. on smelling the liquid he found that the same was illicit distilled liquor. after completing the inquiry he submitted prosecution report. the petitioner denied the prosecution case.3. mrs. p. mohanty, learned counsel for the petitioner, submitted that the courts below committed an error in holding the petitioner guilty of the offence alleged on the basis of the uncorroborated testimony of the two witnesses for prosecution who were the excise staff and thus, interested in the prosecution of the petitioner. the second limb of argument of mrs. mohanty was that, in the absence of any notification either by the board of revenue or by the state government prescribing the minimum quantity of liquor, the possession of which beyond that limit would amount to an offence, the courts below should have held that the petitioner did not commit any offence. in other words, according to the learned counsel, in the absence of any such notification, mere possession of any quantity of liquor would not be punishable.mr. s. das, learned additional standing counsel, on the other hand, supported the findings of the courts below.4. mrs. mohanty, on the point of absence of notification, referred to a decision of this court reported in (1987) 64 clt 144, paramanada jena v. state, a case under section 47(a) of the act.i have gone through the decision carefully. the attention of the court was drawn to sections 8, 12 and 19 of the act but not to section 18 of the act. section 18 of the act reads as follows:18. possession of intoxicant not obtained from a licensed vendor:-- (1) no person shall have in his possession any intoxicant which has not been obtained from a licensed vendor of the same.sub-section (2) of section 18 prescribes certain exceptions in regard to which the provisions under sub-section (1) would not be applicable. in other words, so far as sub-section (2) is concerned, the person in possession of any intoxicant shall have to justify his possession under the circumstance enumerated under sub-section (2). a reading of section 18 makes it clear that, a person is prohibited to possess any intoxicant whatsoever irrespective of quantity. quantity is immaterial for the purpose of this section. 'intoxicant' has been defined under section 2(12-a) of the act which means, any liquor or intoxicating drug and includes mohua flower. sub-section (14) of section 2 defines 'liquor' which includes, all liquids consisting of or containing alcohol, such as spirits of wine, spirit, wine fermented tari, pachwai and beer, and also unfermented tari and also any other substance which the state government may by notification, declare to be liquor for the purpose of this act. thus section 18 of the act prohibits the possession of any intoxicant irrespective of quantity which includes also liquor. section 47 predicates that a person will be liable for conviction if he contravenes the provisions of the act. since the possession of any intoxicant which we have seen, includes also liquor has been prohibited under section 18 of the act, in my view, possession itself to be considered as illegal, and, therefore, punishable under section 47(a) of the act.for the above reasons, the decision cited by mrs. mohanty is of no assistance since it is not the question of the present petitioner possessing any quantity of liquor beyond the limit prescribed for a retail sale.5. next to see whether the fact of seizure itself has been proved beyond reasonable doubt, as submitted by mrs. mohanty.p.ws. 1 and 2 are respectively the sub-inspector and the excise constable of the excise department and they are the only witnesses for the prosecution. p.w. 1 stated in his evidence that the seizure took place in a 'populated area'. he further stated that to witness the seizure he called some 'passers-by but they refused to become witnesses.p.w. 2, the excise constable in his cross-examination stated that no 'passers-by' gathered at the spot. he also admitted that the seizure took place on the 'busy road'.the evidence of these two witnesses who were the only witnesses for the prosecution is found to be inconsistent with regard to the fact of seizure. if, as stated by p.w. 1, some people in fact refused to be witnesses, p.w. 2 would have also testified this fact. he could have well corroborated this version of p.w. 1 that in fact, persons were called to be witnesses but they refused. surprisingly, p.w. 2 did not state anything about any person refusing to become a witness. this amply proves that p.w. 2 either was not present with p. w. 1 when the latter called the witnesses and thus he was stating falsehood. therefore, it would be unsafe to rely on the evidence of p.w. 1 alone with regard to the fact of seizure, without any corroboration by any independent witness as has been held by this court in the case of bhajan sahu v. state of orissa, reported in (1989) 67 clt 620 : (1989 cri lj (noc) 156).it may be clarified that it is not in each and every case that such an independent corroboration shall be necessary. nor it can be laid down as an inflexible rule that in each and every case the fact of seizure at the instance of the excise staff shall always need an independent corroboration. law is well settled that if the evidence of such official witnesses do not suffer from any infirmity and is found to be truthful and, therefore, can be relied upon, in such a case no corroboration from any independent source would be necessary. in the present case, since i entertain a doubt as to the presence of p.w. 2, the excise constable, with p.w. 1 at the point of time, for the reasons already mentioned above, i hold that in such a situation p.w. 1's evidence as to the fact of seizure should have been corroborated by some independent witnesses and since no such corroboration is there, it would not be proper to maintain the conviction on the basis of the sole evidence of p. w. 1. the prosecution case being doubtful, the petitioner is entitled to the benefit of doubt (vide decision reported in 1976 clr (criminal) 81, krushna chandra sahu v. state).6. in the result, the criminal revision is allowed. the orders of conviction and sentence of the petitioner are set aside. he is set at liberty. bail bonds executed stand discharged.

Judgment:
ORDER

D.M. Patnaik, J.

1. In this revision, the petitioner challenges the legality of the confirming order of conviction and the sentence to undergo simple imprisonment for two months and to pay a fine of Rs. 150/-, in default to undergo S.I. for one week more for the offence under Section 47(a) of the Bihar and Orissa Excise Act (hereinafter to as the 'Act').

2. Prosecution case is, on 29-9-1985 at about 2 p.m., P.W. 1, the Sub-Inspector of Excise along with P.W. 2, the Excise Constable, on suspicion detained the petitioner who was found carrying on his cycle 20 litres of illicit distilled liquor. He could not account for such possession. The liquid and the containers were seized and P.W. 1 carried on both hydrometer and litmus paper tests. On smelling the liquid he found that the same was illicit distilled liquor. After completing the inquiry he submitted prosecution report. The petitioner denied the prosecution case.

3. Mrs. P. Mohanty, learned Counsel for the petitioner, submitted that the courts below committed an error in holding the petitioner guilty of the offence alleged on the basis of the uncorroborated testimony of the two witnesses for prosecution who were the excise staff and thus, interested in the prosecution of the petitioner. The second limb of argument of Mrs. Mohanty was that, in the absence of any notification either by the Board of Revenue or by the State Government prescribing the minimum quantity of liquor, the possession of which beyond that limit would amount to an offence, the courts below should have held that the petitioner did not commit any offence. In other words, according to the learned Counsel, in the absence of any such notification, mere possession of any quantity of liquor would not be punishable.

Mr. S. Das, learned Additional Standing Counsel, on the other hand, supported the findings of the courts below.

4. Mrs. Mohanty, on the point of absence of notification, referred to a decision of this Court reported in (1987) 64 CLT 144, Paramanada Jena v. State, a case under Section 47(a) of the Act.

I have gone through the decision carefully. The attention of the court was drawn to Sections 8, 12 and 19 of the Act but not to Section 18 of the Act. Section 18 of the Act reads as follows:

18. Possession of intoxicant not obtained from a licensed vendor:-- (1) No person shall have in his possession any intoxicant which has not been obtained from a licensed vendor of the same.

Sub-section (2) of Section 18 prescribes certain exceptions in regard to which the provisions under Sub-section (1) would not be applicable. In other words, so far as Sub-section (2) is concerned, the person in possession of any intoxicant shall have to justify his possession under the circumstance enumerated under Sub-section (2). A reading of Section 18 makes it clear that, a person is prohibited to possess any intoxicant whatsoever irrespective of quantity. Quantity is immaterial for the purpose of this section. 'Intoxicant' has been defined under Section 2(12-a) of the Act which means, any liquor or intoxicating drug and includes mohua flower. Sub-section (14) of Section 2 defines 'liquor' which includes, all liquids consisting of or containing alcohol, such as spirits of wine, spirit, wine fermented tari, pachwai and beer, and also unfermented tari and also any other substance which the State Government may by notification, declare to be liquor for the purpose of this Act. Thus Section 18 of the Act prohibits the possession of any intoxicant irrespective of quantity which includes also liquor. Section 47 predicates that a person will be liable for conviction if he contravenes the provisions of the Act. Since the possession of any intoxicant which we have seen, includes also liquor has been prohibited under Section 18 of the Act, in my view, possession itself to be considered as illegal, and, therefore, punishable under Section 47(a) of the Act.

For the above reasons, the decision cited by Mrs. Mohanty is of no assistance since it is not the question of the present petitioner possessing any quantity of liquor beyond the limit prescribed for a retail sale.

5. Next to see whether the fact of seizure itself has been proved beyond reasonable doubt, as submitted by Mrs. Mohanty.

P.Ws. 1 and 2 are respectively the Sub-Inspector and the Excise Constable of the Excise Department and they are the only witnesses for the prosecution. P.W. 1 stated in his evidence that the seizure took place in a 'populated area'. He further stated that to witness the seizure he called some 'passers-by but they refused to become witnesses.

P.W. 2, the Excise Constable in his cross-examination stated that no 'passers-by' gathered at the spot. He also admitted that the seizure took place on the 'busy road'.

The evidence of these two witnesses who were the only witnesses for the prosecution is found to be inconsistent with regard to the fact of seizure. If, as stated by P.W. 1, some people in fact refused to be witnesses, P.W. 2 would have also testified this fact. He could have well corroborated this version of P.W. 1 that in fact, persons were called to be witnesses but they refused. Surprisingly, P.W. 2 did not state anything about any person refusing to become a witness. This amply proves that P.W. 2 either was not present with P. W. 1 when the latter called the witnesses and thus he was stating falsehood. Therefore, it would be unsafe to rely on the evidence of P.W. 1 alone with regard to the fact of seizure, without any corroboration by any independent witness as has been held by this Court in the case of Bhajan Sahu v. State of Orissa, reported in (1989) 67 CLT 620 : (1989 Cri LJ (NOC) 156).

It may be clarified that it is not in each and every case that such an independent corroboration shall be necessary. Nor it can be laid down as an inflexible rule that in each and every case the fact of seizure at the instance of the excise staff shall always need an independent corroboration. Law is well settled that if the evidence of such official witnesses do not suffer from any infirmity and is found to be truthful and, therefore, can be relied upon, in such a case no corroboration from any independent source would be necessary. In the present case, since I entertain a doubt as to the presence of P.W. 2, the Excise Constable, with P.W. 1 at the point of time, for the reasons already mentioned above, I hold that in such a situation P.W. 1's evidence as to the fact of seizure should have been corroborated by some independent witnesses and since no such corroboration is there, it would not be proper to maintain the conviction on the basis of the sole evidence of P. W. 1. The prosecution case being doubtful, the petitioner is entitled to the benefit of doubt (vide decision reported in 1976 CLR (Criminal) 81, Krushna Chandra Sahu v. State).

6. In the result, the Criminal Revision is allowed. The orders of conviction and sentence of the petitioner are set aside. He is set at liberty. Bail bonds executed stand discharged.