K.P. Mohapatra, J.
1. This revision is directed against the order passed by the learned Sessions Judge, Balasore upholding the conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act (for short 'the Act), but reducing the sentence.
2. The prosecution case in short is that on 23. 4. 1980 the officers of the Excise Department (P. Ws. 2 and 3) searched the house of the appellant in the presence of an Executive Magistrate (P. W. 1) and two other independent witnesses and seizsd 9 quintals and 15 K. Gs. of Mohua flower kept in 24 bags, as well as, some weighing implements by seizure-list (Ext. 1. Mohua flower being an intoxicating drug could not be possessed without a valid licence in excess of the permissible limit. There-fore, after investigation was over P, W. 3 submitted a prosecution report against the petitioner for contravention of Section 47(a)of the Act.
3. In his statement under Section 313 of the Code of Criminal Procedure the petitioner completely denied the allegations of search of his house and recovery of 9 quintals and 15 K. Gs. of Mohua flower. But it appears from para 3 of the judgment of the trial Court that it was pleaded by the petitioner that the house from where the contraband article was seized was in joint occupation of his father and other brothers and so he was not in conscious possession thereof.
4. The trial Court rejected the petitioner's contention and convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- in default to undergo simple imprisonment for three months The appellate Court while maintaining the conviction in a cryptic judgment reduced the sentence to rigorous imprisenment for six months and fine of Rs. 500/- in default to undergo, rigorous imprisonment for three weeks more.
5. Mr. G. N. Mohapatra, learned counsel appearing for the petitioner contended that the house from where the contraband article was seized was in joint possession of the petitioners father and brothers which is borne from the evidence of P. W. 3 and D. W. 1, The independent witnesses who could have stated above this fact were withheld and not examined. Therefore, on the evidence on record and preponderance of probabilities, conclusion will be inescapable that the prosecution failed to prove conscious and exclusive possession of the contraband article by the petitioner. The contention is well founded.
6. The independent witnesses who were residents of the locality were not examined by the prosecution as witnesses Had they been examined, they could have stated that the house from where the contraband article was seized was in joint possession of the father and brothers of the petitioner. P. W. 3 who was the Investigating Officer stated in cross-examination that the appellant had his father, but was separate. He was not a local man and it was not possible on his part to see if the further had been separated item the petitioner. He obtained information from one Sanyasi Behera who was however not examined. D. W. 1 a local man stated that the house contained two rooms, one kitchen and one Bangala room. The petitioner, his parents and four other brothers live in the house in jointness. The petitioner was the juniormost member of the family and unmarried. P. Ws. 1 and 2 stated nothing about this aspect of the case. It would thus be apparent that the house from which the contraband article was seized was in joint possession of the parents and four elder brothers of the petitioner.
7. In a case of this nature, it is the duty of the prosecution to prove that seizure of the contraband article was made from the exclusive and conscious possession of the accused. This is a well-known proposition or law and is supported by authorities of this Court, such as, XXXI 1965 C. L.T. 990, State of Orissa v. Nilamantna Sahu and Anr., and XL 1974 C. L. T. 1040, State v. Traimbaklala Meheta and Anr. As the prosecution in this case has failed to establish that the contraband article was seized from the exclusive and conscious possession of the petitioner, his conviction is not sustainable according to law.
8. Mr. G. N. Mohapatra further contended that Section 74 of the Act having not been complied with, the search and seizure was illegal and so the conviction based on illegal search and seizure cannot be sustained. This contention is also well-founded.
9. Section 74 of the Act envisages that whenever an Excise Officer of the appropriate rank has reason to believe that an offence punishable under Section 47, 49, 55 or 56 has been, is being, or is likely to be, committed or abetted, and that a search-warrant cannot be obtained without affording the offender and opportunity of escaping or of concealing evidence of the offence, he may, after recording the grounds of his belief, at any time by day or night enter and search any place, and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and may also detain and search and arrest any person found in such place whom he has reason to believe to have committed or abetted any such offence. The essence of the section is, therefore, recording the grounds of belief before conducting search and seizure without a search-warrant. In order to satisfy the Court that the provisions of the section were strictly complied with, evidence should be placed before the Court that the appropriate Excise Officer recorded grounds of his belief If no such evidence is produced, it will not be possible for the Court to uphold the search and seizure in accordance with the provisions of the section. Consequently such search and seizure must have to be declared illegal. This view is supported by authorities, such as, 1979 Crl. L. J. 651, K L. Subhayya v. State of Karnataka and A. I. R. 1958 Raj. 296, State v. Rehman, which were followed by this Court in 58(1984 CLT 201, Krushna Chandra Behera v. State.
10. There is no evidence in this case that P. W. 3 had obtained a search-warrant before the search of the house of the petitioner. There is also no evidence that in the absence of a search-warrant he had recorded grounds of his belief that the petitioner had committed an offence under Sec. 47(a) of the Act in respect of illegal possession of Mohua flowers beyond the permissible limit (in this case the permissible limit according to the evidence was one quintal). Therefore, for non-compliance of the provisions of Section 74 of the Act the search and seizure must be held to be illegal.
11. On both the grounds discussed above, the conviction and sentence of the petitioner cannot be sustained. Accordingly, the revision is allowed and the order of conviction and sentence is set aside. The notice of enhancement of sentence is discharged, the bail bond is cancelled. Fine, if realised, should be refunded. The seized articles are confiscated.