Abhimanyu Behera vs State of Orissa

L. Rath, J.—This revision arises Out of an appellate order confirming the conviction and sentence of the Petitioner in a prosecution u/s 47 (a). Bihar & Orissa Excise Act (for brevity,,the Act) sentencing him to simple imprisonment of six months in addition to a fine of Rs. 50/-. in default to a further simple imprisonment of ten days.

The prosecution case is that the Petitioner having been found in possession of two earthern pot each containing 3 litres of tari and one, katari for use, was seized from him on 23-4-1981 at 4 a. m. by the Excise Sub-Inspector. p.w. 1 the prosecution report was submitted against him.

The defence was of a complete denial.

Challenging the conviction, it has been submitted by Mrs. Padhi that since admittedly the seizure was made at 4 a. m. in the morning which is before the sunrise the Petitioner could not be said to be possessing any tari since the juice of date-palm tree becomes tari only after sunrise by a process of fermentation. The juice of the date-palm tree obtained before sunrise is even publicly sold by Government as �Nira� and hence no offence could be sa id to have been committed by merely possessing such stuff. It is next contended by her that possession of tari up to the .extent of four seers is exempted under the Bihar & Orissa Excise Act. 1915 and hence no prosecution therefor can lie. The further contention raised is that there is no proof of the fact of any seizure made from the Petitioner or that he was in possession of the seized goods.

So far as the first submission is concerned, there does not appear to be any substance in the same since �tari� has been defined in Section 2 (20) of the Act as meaning either formented or unformented juice drawn from any cocoanut, palmyra, date or other kind of pal m tree and hence it cannot be said that unformented form of juice of date-palm tree is not tari within the scope of the Act. �Tari� under that Act, does not have the same meaning as at common parlance but has a statutory definition as even meaning the unformented juice and hence the seizure though was made at 4 a. m. before the sunrise, yet the charge of possession of tari cannot be avoided.

So far as the second submission of Mrs. Padhi is concerned, it requires careful examination. Section 13, so far as relevant for this case, stipulates that no intoxicant shall be manufactured and no person shall use keep or have in his possession any materials still untensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari, except under the authority and subject to the terms and conditions of a licence granted in that behalf, by the Collector. Exceptions are provided in the proviso to the Section in respect of tari of which Sub-clause (Hi) is to the effect that a person in possession of tree. producing tad may inter alia tap the tree to draw tari upto a limit of four seers for his domestic consumption. The learned Sessions Judge considering this question has rightly held that exception of four seers is not available to the Petitioner since u/s 48 of the Act a presumption of guilt arises when a prosecution is launched u/s 47 (a) of the Act in respect of any liquor or intoxicating drink. Tari, either formented or not is undoubtedly liquor as defined u/s 2 (14). Since because of the presumption, it would be for the Petitioner to prove that he has drawn tari for his domestic consumption from a tree in his possession. Such fact is also within the special knowledge of the Petitioner but however no such fact has been established by him. Mrs. Padhi submits that since no such question was directed to the Petitioner when his statement was recorded, he could not have made out the defence. The submission is not correct. When the burden of proof is on the accused it is not avoided merely because leading questions are not put to the accused during his examination. It has been often held that when the fact is within the special knowledge of the accused the onus is upon him to prove such fact in accordance with the provisions of Section 106 of the Indian Evidence Act, but how..; ever the onus is not as heavy as that of the prosecution to establish the case beyond reasonable doubt but is one similar to that in a civil case, to establish a preponderance of probability. Since however even such onus had not been discharged by the Petitioner it cannot be said that the benefit of exemption under the proviso to Section 13 is available to him.

It also cannot be said that tapping of a tree and collection of tari is not a process of manufacture since �manufacture� is defined in Section 2 (15) as including every process, whether natural or artificial by which intoxicant can be produced and prepared including tapping of tari-producing trees and the drawing of tari from trees.

For the very same reason reliance placed on Section 18 (2) (h) of the Act is of no help since to get the benefit of the Section, the same facts as are necessary u/s 13 proviso (iii) are to be proved by the accused.

It has been concurrently found by both the Courts below that the seizure had been made from the Petitioner. The reversal of such finding is urged on the ground that the Seizure witness p.w. 2 did not depose regarding the seizure having been made from the person of the Petitioner and merely stated that �the Excise S. I. called me to stop. While I was waiting I saw the accused. Then I saw two pots (earthen), one sickle and a palangu (all are M. Os)�, It is submitted that the evidence does not amount to his having witnessed the seizure from the person of the Petitioner. P. W. 1, the Excise S. I. had stated regarding seizure of liquor from the person of the Petitioner. P. W. 2 identified his signature on the seizure list as Ext. 114. The seizure list has been exhibited as Ext. 1. From such facts it cannot be stated that the seizure has not been proved and that the Petitioner was not in possession of the articles of seizure.

Even though all the contentions raised by Mrs. Padhi fails, yet as has been contended by her, the sentence seems to be excessive. The fact that juice of date-palm tree in unformented stage is sold by the State agencies themselves as �Nira� and the seizure was also made of such unformented juice, and regard being had to the quantity of seizure, I would consider a sentence of two months simple imprisonment to be adequate to meet the requirements of justice.

In the result, while maintaining the conviction of the Petitioner the revision is allowed only to the extent of reducing the sentence to two months simple imprisonment.