Bidika Kama vs State Of Orissa

V. Narasingh, J. Heard learned counsel for the Petitioner and learned counsel for the State.

This Criminal Revision has been filed assailing the judgment dated 25.05.2005 passed by the learned Addl. Sessions Judge, Rayagada in Criminal Appeal No. 08 of 2005, thereby affirming the judgment of conviction and sentence dated 01.02.2005 passed by the learned S.D.J.M., Rayagada in 2(a) C.C. No.50/2003 (T.R. No.584/2003) qua the Petitioner for the commission of offence punishable under Section 47(a) of the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as ‘Act, 1915’), sentencing him to undergo R.I. for a period of two years and to pay a fine of Rs.5000/- (Rupees Five Thousand), in default, to undergo R.I. for a period of six months.

The case of the prosecution, in brief, is that on 01.01.2003 at about 5:30 A.M., the S.I. of Excise, R.P. Patra (P.W.1), during patrolling, detected the accused-Petitioner carrying 10 litres of liquid substance in a motor tube on a cycle without authority.

Accordingly, he detained the accused and tested the suspected liquor by blue litmus paper and hydrometer test and, by virtue of his experience and training, he confirmed the liquid was I.D. liquor. After which, the motor tube containing the liquor was seized and the accused was arrested and later released on bail.

Thereafter, upon completion of the investigation, a prosecution report was submitted against the accused under Section 47(a) of the Act, 1915.

To drive home the charge, the prosecution examined 3 witnesses, of whom P.W.1 is the Excise S.I., P.W.2 is the Excise Constable and also a seizure witness, and P.W.3 is a non-official witness examined on behalf of the prosecution.

Three documents were also exhibited and marked as Exts.1 to 1/2 on behalf of the prosecution.

Neither oral nor documentary evidence was adduced on behalf of the defence. The plea of the defence was one of false implication.

On consideration of the materials on record and negating the defence plea, the Trial Court convicted the Petitioner under Section 47(a) of the Act, 1915 and sentenced him to undergo R.I. for a period of two years and to pay a fine of Rs.5000/-(Rupees Five Thousand), in default, to undergo R.I. for a period of six months.

On appeal being preferred, the Appellate Court did not find any infirmity in the appreciation of evidence and accordingly affirmed the conviction as well as the sentence imposed. Assailing the same, the Petitioner is before this Court.

It is the submission of the learned counsel for the Petitioner that the appreciation of evidence by the Courts below is ex facie perverse so as to warrant interference by this Court in exercise of revisional jurisdiction.

Learned counsel for the State opposes such prayer.

On consideration of the materials on record and the appreciation thereof, this Court is not persuaded to accede to the submission of the learned counsel for the Petitioner that the analysis and reasoning of the learned Courts below is patently perverse, so as to warrant interference in exercise of revisional jurisdiction. Hence, this Court is not persuaded to interfere with the order of conviction, which is upheld.

On a bare scrutiny of the judgments passed by the Trial Court as well as the Appellate Court on the question of sentence, it is to be noted that notwithstanding that there is no embargo in terms of application of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘P.O. Act’) taking into account the punishment prescribed in respect of the offence, for commission on which, the petitioner was found guilty, no attempt has ever been made even to mention as to why the Petitioner, who is stated to be a first offender, should not be released by application of the P.O. Act.

In its recent dictum in the case of Chellammal and Anr. V. State represented by the Inspector of Police, 2025 SCC OnLine SC 870, , the Apex Court has extensively dealt with the background in which the Act was enacted and virtually a duty is now cast upon the Courts to justify as to why they are not extending the P.O. Act.

Considering the letter and spirit of the judgment of the Apex Court in the case of Chellammal (Supra) and since ex facie the punishment prescribed for the offence under Section 47(a) of the Act, 1951 does not suffer from the disqualification as envisaged under Section 4(1) of the P.O. Act, this Court is persuaded to hold that directing the Petitioner to be released under the P.O. Act would sub-serve the ends of justice. Hence, this Court directs that the Petitioner be released on probation under Section 4 of the P.O. Act, on conditions to be settled by the learned Trial Court.

The imposition of fine is set-aside keeping in view the submission at the bar that over the last two decades the Petitioner has not indulged himself in commission of any offence.

The CRLREV is accordingly disposed of.

In view of the disposal of the CRLREV, all the pending I.A.(s) stand disposed of.