Criminal Revision Application No.48 of 2014

27th November, 2018.

Petitioner Counsel: Shri V.N. MORANDE
Respondent Counsel: Shri C.A. LOKHANDE

JUDGMENT

Judgment :- Heard Shri Morande, learned counsel for the applicant and Shri Lokhande, learned Additional Public Prosecutor for the State/ respondent.

2. The present revision is against the judgment of conviction passed by the Chief Judicial Magistrate, Gadchiroli in Summary Criminal Case No. 1214/2009 convicting the accused/applicant for the offence punishable under Section 65(e) of Bombay Prohibition Act and sentencing him to undergo R.I. for three years and to pay fine of Rs. 3,000/- i/ d to undergo further R.I. for three months. The said judgment was challenged before the Sessions Judge, Gadchrioli in Criminal Appeal No. 55/2009. The appeal came to be dismissed on 12-12-2013. Both the judgments are challenged in this revision.

3. Proceeding under Section 65(e) of Bombay Prohibition Act was tried by the Chief Judicial Magistrate, Gadchiroli as a summary criminal case. Punishment provided under Section 65(e) [after amendment] is three years. Accused/applicant is convicted for the offence punishable under Section 65(e) and sentenced to suffer rigorous imprisonment for three years. Learned counsel for the applicant has pointed out procedure and submitted that in a summary criminal case, Judicial Magistrate First Class/Chief Judicial Magistrate cannot convict the accused for more than three months. Learned counsel has submitted that both the panch witnesses have not supported the case of prosecution. Prosecution has not filed Chemical Analyser report on record to prove that liquid which was seized was the liquor and nothing else.

4. Learned Additional Public Prosecutor has supported the impugned judgment.

5. From the perusal of evidence, it appears that material witnesses i.e. P.W. 2 and P.W. 3 have not supported to the case of prosecution. Prosecution has to prove that accused was found in possession of illicit liquor. Prosecution has not filed Chemical Analyser report to prove that seized liquor was the liquor and nothing else. In these circumstances, Court cannot come to the conclusion that accused was found in possession of liquor. Hence, impugned judgments passed by the Court below are liable to be quashed and set aside. In the result, following order is passed.

ORDER

(i) Revision is allowed.

(ii) Impugned judgment passed by the Chief Judicial Magistrate, Gadchiroli in Summary Criminal Case No. 1214/2009 and the judgment of Sessions Judge, Gadchiroli dismissing the appeal are hereby quashed and set aside.

(iii) Applicant/accused is acquitted for the offence under Section 65(e) of the Bombay Prohibition Act.

(iv) Fine amount, if paid, be refunded to the applicant/accused.

(v) R & P be sent back to the trial Court.

Revision allowed.