JUDGMENT : AVITRI RATHO, J. 1. Ulaka Raisulu has filed this Criminal Revision challenging the judgment and order dated 17.08.2005 passed by the learned Additional Sessions Judge, Rayagada in Criminal Appeal No. 39 of 2004 confirming the judgment passed by learned S.D.J.M., Gunupur in 2(a) C.C. Case No. 36 of 2001/ T.R. Case No. 125 of 2001, convicting him for commission of the offence under Section 47 (a) of the Bihar and Orissa Excise Act and sentencing him to undergo R.I. for two years and to pay a fine of Rs.5000/- in default to undergo R.I. for six months, subject to set off. 2. The prosecution case in short is that on 09.11.2000 at 8 A.M., the S.I. of Excise Gunupur along with his staff had been to Ramanaguda on patrol duty. At Parikhiti chhaka, they noticed that the accused was holding a plastic jerrican. On suspicion, they detained him and recovered the plastic jerrican from the exclusive possession of accused and found it contained 7 litres of liquor in presence of available witnesses. The S.I. tested the liquor by means of blue litmus paper and hydrometer and ascertained that the said liquor was I.D. liquor. Since the accused did not possess any licence or authority for such possession, the S.I. seized the plastic jerrican with the I.D. liquor and prepared the seizure list at the spot and served a copy of it on the accused. After completion of investigation, he submitted prosecution report. 3. In order to prove its case, prosecution has examined three witnesses. P.W.1 Santosh Kumar Sethi is the Excise Constable, P.W.2 Narayana Bisoi is the S.I. of Excise and P.W.3 Padmanava Behera is an independent witness. The defence did not examine any witness. 4. P.W. 1 has stated that on 09.11.2000 at about 8.00 A.M., he along with P.W.2 had been to village Ramanaguda for performing patrol duty. At Parikhiti junction, they found the accused was coming with a plastic jerrican containing 7 litres of I.D. liquor. So the S.I. of Excise seized the same from the possession of the accused in his presence as per the seizure list, Ext. 1. He proved his signature Ext.1/1. The S.I. of Excise tested the seized liquor by means of blue litmus paper and hydrometer and arrested the accused and released him on bail. So the S.I. of Excise seized the same from the possession of the accused in his presence as per the seizure list, Ext. 1. He proved his signature Ext.1/1. The S.I. of Excise tested the seized liquor by means of blue litmus paper and hydrometer and arrested the accused and released him on bail. P.W. 2-Narayana Bisoi, who is the S.I. of Excise and the complainant and I.O. has stated that on 09.11.2000, while he along with his staff had been to village Ramanaguda for performing patrol duty, they found the accused was standing at Parikhiti junction near Ramanaguda village. He detained the accused on suspicion and on search, he recovered one plastic jerrican containing 7 litres of I.D. liquor from his possession. Since the accused failed to produce any licence or authority to support such possession, he seized the same from the possession of the accused in presence of the witnesses as per the seizure list Ext.1. He proved his signature Ext.1/2. He stated that he tested the seized liquid by means of blue litmas paper which turned into red colour. By hydrometer test, he determined its strength as 79.6 degree U.P. From the above tests, smell, colour and his departmental service experience and as he had undergone training in distilley, he came to know it to be I.D. liquor. He handed over a copy of the seizure list to the accused. He arrested the accused and released him on bail. After completion of enquiry, he submitted P.R. against the accused. M.O.I. is the seized plastic jerrican which contained the I.D. liquor. P.W.3-Padmanava Behera, who is an independent witness who has not supported the prosecution case and has stated that the Excise babu seized nothing in his presence. But on the direction of the Excise babu, he put his signature on the seizure list. He has admitted his signature in the seizure list, which is marked as Ext.1/3. 5. The learned trial court held there was no reason to disbelieve the official witnesses as it found no inconsistency in their evidence and as they had no hostility with the accused so as to falsely implicate him and the seized jerrican had been produced in Court. 5. The learned trial court held there was no reason to disbelieve the official witnesses as it found no inconsistency in their evidence and as they had no hostility with the accused so as to falsely implicate him and the seized jerrican had been produced in Court. The learned Court accepted the claim of the P.W.2 that he had undergone distilling training as he has stated that on oath and held that his opinion was final as he had conducted litmus paper test and hydrometer test and smell test and convicted the accused under Section 47 (a) of the Bihar and Orissa Excise Act and sentenced him to undergo R.I. for two years and to pay a fine of Rs.5,000/- in default to undergo R.I. for six months holding that he is not entitled to the benefit under the P.O. Act. 6. Criminal Appeal No.39 of 2004 was filed by the petitioner in the Court of Session challenging his conviction and sentence. The learned Addl. Sessions Judge, Rayagada vide judgment and order dated 17.08.2005 dismissed the appeal and confirmed the judgment and order of the learned trial court. 7. Mr. J.R. Dash, learned counsel for the petitioner has challenged the impugned judgements and orders on the following grounds: (a) P.W 2 is the complainant as well as the investigating officer in the case for which prejudice has been caused to the petitioner. (b) The seized liquor has not been chemically examined . P.W 2 has assumed the role of an expert. By conducting litmus paper and hydrometer test, he has decided that the seized liquid was I.D. liquor. He has claimed that he has undergone distillery training, but no materials have been produced in the court to support such claim. In the absence of chemical examination and production of documents in support of distillery training by P.W 2 the I.O, his opinion that it was I.D. liquor is not acceptable . He relies on the decisions of this Court in the cases of S. Dasarathi Reddy vs. State, 1998 (II) OLR 315 : 2000 (19) OCR SC 688 and Simanchal Choudhury vs. State of Orissa, 2005 (II) OLR 401 , in support of such submission. (c) The seizure should be disbelieved as P.W.3 the sole independent witness did not support the prosecution case. (c) The seizure should be disbelieved as P.W.3 the sole independent witness did not support the prosecution case. As he has not been declared hostile nor cross-examined by the prosecution, his evidence can be taken into consideration. (d) In case, this Court thinks it proper to confirm the conviction, in view of the fact that about 22 years have elapsed since the date of occurrence, a lenient view be taken and the petitioner may not be sent back to custody after so many years and the sentence may be confined to the period undergone and/or fine . He relies on the decisions of the Apex Court and this court in the cases of Kantaru Sethy vs. State of Orissa, (2002) 22 OCR (SC) 778, Subash Ch Sahu vs. State of Orissa, 2002 (I) OLR (NOC) 68. 8. This Court in the case of S .Dasarathi Reddy ( supra) has held as follows : “5..... Here in this case, it is not disputed that no chemical analysis was done. What was done by the Excise Sub- Inspector was litmus paper test and hydrometer test. It is not explained as to why the seized liquor was not sent to the Chemical Examiner for examination. He, however, claims that he had training in distillery and he had 11 years experience at his credit in the Department. Besides this bald statement there is nothing to show that he had actually received training in a Branch of the Excise Department which is directly connected with the testing of liquor. Such a bald statement without any particulars of training or type of service does not make him an expert witness. It may be observed that in case of this nature, where substantive sentence of imprisonment is compulsory after conviction, a heavy duty is cast upon the prosecution to establish beyond any reasonable doubt that what was recovered from the accused was illicit liquor. Here in this case, the evidence is lacking with regard to it. This being the position, it seems that the order of conviction and sentence passed by the trial Court and affirmed by the superior Court cannot be sustained.....” In the case of Simanchal Choudhury ( supra), this Court has held as follows:- “5..... I have perused the judgments of both the Courts below and the evidence adduced by the prosecution witnesses. This being the position, it seems that the order of conviction and sentence passed by the trial Court and affirmed by the superior Court cannot be sustained.....” In the case of Simanchal Choudhury ( supra), this Court has held as follows:- “5..... I have perused the judgments of both the Courts below and the evidence adduced by the prosecution witnesses. I find that even though the prosecution has alleged that the petitioner was selling I.D. liquor when the seizure was effected, strangely, no independent witnesses to the search and seizure have been produced by the prosecution. If the allegation of the prosecution regarding the act of selling I.D. liquor is accepted, the same would presuppose that some person or persons was/were either purchasing or purchasing and consuming the liquor sold by the accused. But, neither statement of any such person has been recorded nor any such person has been produced as prosecution witness. It is no doubt true that the evidence of official witness can be relied upon in a given case. As because P.W.1 was working as a constable in the Excise Department, the same is not a ground to disbelieve his testimony. It is revealed from the record that the liquid seized was never subjected to chemical test. Except the bare statement of P.W.2 that he tested the seized liquid by litmus paper which turned red and also measured the density of the said liquid by hydrometer test, that does not prove conclusively that the liquid seized was I.D. liquor. Blue litmus turning red on being introduced to a liquid only goes to show that the nature of liquid is acidic and no more. So far as the hydrometer test is concerned, it is a test to measure the density of liquid and possibility of any other liquid (solution) having the same density cannot be ruled out. The evidence of P.W.2 that by his experience of long twenty years of service in the department, he has acquired an expert knowledge in identifying liquor, is of no help to the prosecution. As already held by this Court in various decisions, an Excise Officer bearing some experience due to his long service cannot be termed as an expert in terms of Section 45 of the Evidence Act. As already held by this Court in various decisions, an Excise Officer bearing some experience due to his long service cannot be termed as an expert in terms of Section 45 of the Evidence Act. Further, in the instant case, identification of the liquid seized by P.W.2 as I.D. liquor does not confirm to the test as required to be proved to bring a case under Section 47 (a) of the Bihar and Orissa Excise Act, 1915. (See Suma Das v. State of Orissa, 1993 (II) OLR 392 : 1993 (6) OCR 612, Bisam Harijan v. State of Orissa, 1994 (I) OLR 516 : 77 (1994) CLT 944 and Biswanath Sahoo v. State, 2002 (I) OLR 316 : 93 (2002) CLT 327 ), I find, in the present case that the seized liquor was never produced before the trial Court which is another aspect, which goes against the case of the prosecution....” 9. Contention of the learned counsel that his conviction is liable to be set aside as the sole independent witness did not support the prosecution is not acceptable as P.W. 1 the Excise Constable has supported the prosecution case and P.W 3, the independent witness has only stated that nothing has been seized in his presence which by itself is not fatal to the case of the prosecution. Similarly, the contention of the learned counsel that the prosecution case is vitiated as because P.W 2, the S.I of Excise who had lodged the complaint has himself investigated into the case, has no force as he has not shown what prejudice and as why he would falsely implicate the petitioner . Moreover, this point has been set at rest by larger (5 Judges) Bench of the Supreme Court in the case of Mukesh Singh vs State ( NCT of Delhi) reported in ( 2020 ) 1 SCC 120 which has decided the reference holding that: “.....In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like 61 factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.” . But after careful perusal of the deposition of the three prosecution witnesses, I find force in the submission of the learned counsel, that the seized liquor has not been chemically examined and even though P.W. 2 the S.I. of Excise has stated that he has undergone distillery training, in the absence of supporting documents it would be unsafe to convict the petitioner by relying on his opinion which is on the basis of blue litmis paper, hydrometer tests, smell and colour of the liquid that it was I.D. liquor . The conviction of the petitioner under Section 47 (A) of the Bihar and Orissa Excise Act by the learned S.D.J.M., Gunupur and learned Additional Sessions Judge, Rayagada is therefore set aside. 10. The Criminal Revision is accordingly allowed. As the petitioner is stated to be on bail, his bail bonds stand discharged. 11. The Lower Court records be returned forthwith.