CRIMINAL APPEAL NO. 402/2007

16th December 2019

Petitioner Counsel: Ms. Radha Mishra
Respondent Counsel: Mr. I. J. Damle
Act Name: Bombay Prohibition Act, 1949

Section :
Section 65(b) Bombay Prohibition Act, 1949 Section 65(c) Bombay Prohibition Act, 1949 Section 65(f) Bombay Prohibition Act, 1949

Cases Cited :

JUDGEMENT

1. This Appeal has been directed against the judgment and order dated 22nd June, 2007 delivered by the learned Ad-hoc Additional Sessions Judge-2 in Sessions Trial No.136/2006, convicting the appellant/accused for offence punishable under Section 65(b), (c) and (f) of the Bombay Prohibition Act, and sentencing him to suffer S.I.for six months and to pay a fine of Rs. 500/-, in default, to suffer SI for fifteen days.

2. The prosecution case in brief can be summarized as under :-
On 07.07.2006 a secret information about manufacturing of illicit liquor by the accused was received by Police Station, Arvi. Therefore, a raid was conducted in the embankment along the field of Nandu Madik R/o Talegaon-shivar. The police found that in the said field, accused was brewing impure liquor, possessing it, manufacturing implements along with Mahua wash and liquor in which some poisonous substance like leaves of ‘Beshram” were mixed. The police seized those articles in the presence of panchas and recorded the seizure panchnama (Exh.18). The police took samples from Mahua wash and the liquor and destroyed remaining Mahua liquor in the presence of panchas. The police then brought the accused to Police Station along with utensils and recorded the complaint and on the basis of it, registered the offence vide Cr. No. 6457/2006. The samples were sent to CA office for examination. After completion of investigation charge-sheet was filed in the court of learned JMFC Arvi. The case was committed the court of Sessions. The learned Ad-hoc Addl. Sessions Judge after recording the evidence and hearing both sides, convicted the accused as aforesaid.

3. The prosecution has examined in all two witnesses. PW1-Darasingh Rajput is the PSI, whereas PW2-Panjab Tokse, is the panch witness. The evidence of PW1 shows that on 7.7.2006 at about 15.20 hours, he received a secret information about manufacturing of illicit liquor is Talegaon-Shivar. Hence PW1 proceeded along with his staff and panchas to Talegaon. They went near the field of Nandu Madik and found that he was running illegal distillery and manufacturing liquor illegally. There was a Mahua wash in the drum. PW1 also found that in Mahua wash leaves of ‘Beshram’ were mixed and found some liquor in the bladder. PW1 seized those articles, took the samples of those articles i.e. Mahua liquor and Mahua wash and sealed it before the Panchas. He stated that rest of the liquor and mahua wash was destroyed on the spot. He then prepared the seizure panchnama vide Exh.18. PW1 then proceeded to the Police Station registered the offence against the accused and arrested him vide Exh.20. After completion of formal investigation, he filed charge sheet.

4. The testimony of PW2-Panjab Tokse, shows that he went with the police to the field at Talegaon-shivar. The accused was found in the field. There was Mahua wash in which some leaves were mixed. There was also liquor in one can. There were liquor manufacturing implements/utensils at the place of incident. He contended that the police took charge of all those articles as well as mahuwa wash. The police prepared the spot panchnama (Exh.18). The testimony of PW2 shows that he is studied upto 4th standard and he was knowing the accused even prior to the incident. The testimony of PW2 shows that the accused was present at the place of incident, however, his testimony does not show that accused was preparing or manufacturing the liquor.

5. I have heard Smt.Radha Mishra, learned Advocate (appointed) for the State and Mr. I.J. Damle, learned APP for respondent-State. With their assistance, I have gone through the record and proceedings of the case. Learned counsel for the accused submits that there is an inordinate delay of seven months in sending the sample which was taken by the police on 7.7.2006 to the CA office for its analysis. She submitted that the said delay goes to the root of the prosecution case and creates a serious doubt whether it was sample which was taken charge by the police on 7.7.2006 and whether till that time the sample was in a condition of analysis. It was also argued that there is every possibility of tampering with the samples in the Police station itself.

6. I am convinced by the arguments advanced by learned counsel for the accused. Significantly, Mahua liquor and the articles were seized by the police on 7.7.2006. The requisition letter at Exh.21 dated 7.7.2006 shows that those samples along with the requisition letter dated 7.7.2006 were received by the CA office on 5.2.2007 and the analysis of the sample was done on 21.2.2007. The CA report (Exh.26) shows that sample no.1 contains 28.93% v/v of ethyl alcohol in water. It is not medicinal/antiseptic toilet preparation, nor a flavouring material; whereas Sample No.2 contains 5% v/v of ethyl alcohol. The same also contains sugar yeast and alum and it can be used for the distillation of intoxicating liquor. No doubt, the CA report has detected so, however, the fact remains that although the requisition letter was written by the police on 7.7.2006 i.e. seizure of sample itself, however, those samples were sent to the CA office on 5.2.2007. It is therefore doubtful whether those samples were in a proper state in the Police Station, till they were analysed by the Chemical Analyser.

7. In the instant case, PW2 has categorically stated that he had seen the accused preparing or manufacturing the liquor. He was not seen actually preparing the liquor from the mahua leaves. The accused was simply seen standing in the field. No overt act has been attributed to the accused.

8. In view of the facts and circumstances, to my mind, the learned Judge of the Court below has not assessed the evidence led by the prosecution witnesses in it proper perspective and as such, an interference at the hands of this Court in the impugned judgment, is warranted. Hence, the order.
ORDER:
(i) Criminal Appeal No.402/2007 is allowed.
(ii) The judgment and order passed by learned Ad-hoc Additional Sessions Judge, Wardha in Sessions Trial No. 136/2006 on 22nd June, 2007 convicting the appellant/accused, is set aside and he is acquitted of the offences for which he was convicted.
(iii) The bail bonds of the appellant shall stand cancelled.
(iv) Fine amount if paid by the appellant/accused, be returned to him.
(v) The professional fees of Ms.Radha Mishra, Advocate (appointed) for the appellant, be paid as per Rules.