STATE OF ORISSA Vs. PHULCHAND AGARWALLA AND ANR.

JUDGEMENT

(1.) THIS is an appeal by the State of Orissa against an order dated 29 -6 -1963 passed by Sri P.K. Jena, Magistrate, II Class, Nuapara, acquitting the Respondents of an offence under Section 47(a) of the Bihar & Orissa Excise Act.

(2.) THE Respondent Phulchand Agarwalla and Kunjalal Agarwalla were duly appointed salesmen of a foreign liquor licensee M. K. Deo of Khariar Road. On 28 -2 -1962, P.W. 6, the sub -inspector of excise went to the shop of the licensee and asked Respondent Phulchand if they had brought any stock of foreign liquor to the shop. The Respondent denied saying that since January 1962 they had no such stock. P.W. 6 then went to the Khariar Railway Station to serve a notice on the Station Master not to give delivery of any consignment of foreign liquor without the presence of an excise official. There he learnt that Respondent Kunjalal Agarwalla (Respondent No. 2) had already taken delivery of some foreign liquor on 23 -2 -1962 which was received from chorws Company. P.W. 6 immediately returned to the aforesaid shop and asked Phulchand to produce the foreign liquor account books. In the said book, he found that on 23 -2 -1962 there was an entry showing receipt of some pints of brandy, whisky and rum and some sales had also been shown on subsequent dates, leaving some balance of each of the above items of liquor. When he asked Phulchand to produce the stock as it stood on that date, the latter denied any knowledge of the stock or sale. Subsequently, however, he disclosed that they had been kept in room No. 11 adjacent to room No. 8 which was the prescribed premises for foreign liquor shop. It was further disclosed by Respondent Phulchand that the rest of the stock had been taken away to Kantabanji by accused Kunjalal. Then P.W. 6 seized the available stock from room No. 11 under seizure list (ext. 1/b). Thereafter he proceeded to Kantabanji and on 1 -3 -1962 he searched the house of Kunjalal and recovered some pints of brandy, whisky under seizure list, (ext. 2). Then he submitted a prosecution report against both the Respondents for an offence under Section 47(a) of the Bihar & Orissa Excise Act as the accused persons were found in possession of liquor in excess of the permissible quantity, and the accused persons were summoned to stand their trial. Both the accused persons admitted the position of stock seized by P.W. 6 to be in their possession. The learned Magistrate, however, without examining the evidence recorded an order of acquittal on the following grounds:

(3.) THE learned Magistrate in coming to the aforesaid conclusion, has not discussed the evidence at all much less the essential point whether the accused persons were found to be in illegal possession of the stock seized and whether such possession would amount to an offence under Section 47(a) of the Bihar & Orissa Excise Act.