KHETRAMOHAN NAYAK Vs. STATE OF ORISSA
HIGH COURT OF ORISSA
STATE OF ORISSA
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J.K.Mohanty, J. -
(1.) PETITIONER Khetramohan Nayak was tried under Section 47(a) of the Bihar and Orissa Excise Act (hereinafter called the Act) for being in possession of 14 liters of out still liquor (O. S. Liquor) on 6 -1 -1977 at about 8.45 A.M. by the road side of Uditnagar Kutchery road. He was tried before the Magistrate, 2nd Class, Uditnagar and was convicted under Section 47(a) of the Act and sentenced to undergo R.I. for 6 months and to pay a fine of Rs. 500/ -, in default to undergo R.I. for another one month. Against the aforesaid order of conviction and sentence, Petitioner preferred an appeal before the Additional Sessions Judge, Sundargarh which was also dismissed. Against that, the Petitioner has come up to this Court with the present revision.
(2.) IT is alleged by the prosecution that on 6.1 -1977 at about 8 45 A. M. the Sub -Inspector of Excise (P.W. 1) who was (in duty along with a constable (P.W. 3) found that the accused Petitioner was holding a bag and talking with a rickshaw puller (who has not been examined) in a suspicious manner. P.W. 1 detained the accused and made a search in presence of witnesses and on opening the bag, he found a rubber blander containing 14 litters of O.S. liquor which was seized in presence of P.W. 2, the rickshaw puller and another person. After completing investigation, he submitted prosecution report.
The plea of the accused Petitioner is a denial of the entire facts including the seizure of liquor from his custody.
On behalf of the prosecution three witnesses have been examined. P.W. 1 is the Sub -Inspector of Excise, P.W. 3 is the constable and P.W. 2 is a hotel keeper, who is a witness to the seizure of the liquor.
Mr. B.B. Ratho, learned Counsel appearing for the Petitioner, submits that there is no proof that O. S. liquor was seized from the Petitioner; that no scientific test has been conducted to find out whether the liquor seized was O.S. liquor; that the hydrometer test alleged to have been done by P.W. 1 is not a safe and conclusive method and in any view of the matter, the evidence adduced on behalf of the prosecution cannot be believed and the Petitioner is entitled to acquittal.
(3.) P .W. 1 is the Excise S.I. who has stated:
I examined the liquor by means of hydrometer and found it to be 75.5 UP.
Exception this, there is no other evidence to establish that the liquid in the bladder contained O.S. liquor. P.W. 1 does not claim himself to be an expert in testing liquor. He has not stated that he has undergone any training in a distillery nor does he state whether he was associated with the distillation of liquor, the chemical analysis of this commodity or any method of testing liquor. In the absence of such assertion by P.W. 1 it is difficult to accept that he had sufficient proficiency to examine liquor and declare it to be so with definiteness.
The hydrometer test is not an accurate test as the hydrometer set tells only the specific gravity or density of the liquid in which that instrument is put. This test is also not accepted by the Indian Standard Institution (I.S.I.) as a sure test. In a Division Bench decision of Punjab and Haryana High Court State of Haryana v. Radhey Shyam, 1977 Cri.L.J. 328 the learned Judges, after examining the matter thoroughly, have held that hydrometer test is neither safe nor conclusive to determine whether the commodity is liquor or not. The most common test for determining whether it is outstill liquor or distillery liquor is the litmus test. This was also not done in this case. In a decision Dhobai Charan Meher v. State, 26 (1960) C.L.T. 620, it has been held by Narasimham, C.J. (as he then was) that there are various methods of testing liquor, with a view to find out whether it is outstill liquor or distillery liquor, the most common test being the litmus test. In another decision reported in the same volume at page 307 Sainta Putani v. The State : 26 (1960) C.L.T. 307, it has been held that -
When the various methods of testing liquor as prescribed in the Excise Manual are not applied and there is no evidence except the evidence of the Excise S.I. who also says that except smell there was no other data on which he could say it was outstill liquor no conviction can be passed.
In the present case except the evidence of P.W. 1 that the bladder contained O.S. liquor and that he examined the liquor by means of hydrometer and found it to be 75.5 UP, there is no other evidence whatsoever to establish that the liquor seized from the Petitioner was O.S. liquor. Further, the sample from the contents of the bladder was also not sent to the chemical examiner which is always the surer test to determine as to what the commodity actually recovered from the accused is.;
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