CRIMINAL APPEAL NO. 125/2008

20th February 2020

Petitioner Counsel: Mr. A. J. Dhoble
Respondent Counsel: Mr. Amit Chutke
Act Name: Bombay Prohibition Act, 1949

HeadLine : Bombay Prohibition Act (1949), S.65(f) – Evidence Act (1872), S.3 – Manufacturing of illicit liquor – Proof – Accused allegedly found in possession of intoxicant materials for mixing purpose, at place of incident.
Corroborative testimony of witnesses with seizure panchnama - Presence of accused, at place of incident, proved by prosecution- Conviction, proper.

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

JUDGEMENT

1. This Appeal has been directed against the judgment and order dated 30.01.2008 delivered by the learned Ad-hoc Additional Sessions Judge-2 in Sessions Trial No.181/2006, convicting the appellant/ accused for offence punishable under Section 65(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 seven days.

2. The prosecution case in brief can be summarized as under :-
Head Constable PW3-Digambar Bhankhede of Police Station, Wadner, received a secret information on 21.8.2006 about manufacturing illicit liquor by the accused. He along with his staff and two panchas went to Selu-Shivar and found the accused by the side of nullah in bushes, moving his hands in a pot. The accused was found in possession of 30 tin pots having mahuwa wash. Besides, he was also found in possession of Navsagar, Turti, Gud, battery cells powder, leaves of beshram etc. for the purpose of mixing. PW3 seized all the articles and prepared seizure panchnama. It is the case of the prosecution that after collecting 180 ML sample from mahuwa wash, he destroyed rest of the articles. PW3 then registered FIR No. 3056/2006 against the accused for the offence punishable u/s 65(f) of the Bombay Prohibition Act. PW3 arrested the accused and recorded the statements of the witnesses, referred the sample to CA for examination. After completion of formal investigation, the charge- sheet was filed before the Court of JMFC, Hinganghat who in turn, committed the case of 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. I have heard Mr A.J.Dhoble, learned counsel for the accused and Mr. Amit Chutke, learned APP for the respondent-State. With their able assistance, I have gone through the record and proceedings of the case. Mr.Dhoble, learned Advocate for the accused vehemently argued that the learned trial Judge has not assessed the evidence led by the prosecution witnesses in its proper perspective and has erroneously convicted the accused. He submitted that the witnesses, i.e. PW1-Gajanan, PW2 Vinod and PW6 Devidas are the police witnesses and, as such, no credibility to their testimony can be attached. Per contra, learned APP supported the judgment passed by the trial Court and submitted that the trial Judge has properly assessed the evidence and has rightly convicted the accused.

4. At the outset, it may be mentioned here that the testimony of police witnesses can be relied upon if it is found to be trustworthy. In the case of Girja Prasad (Dead) by LRs vs. State of M.P. reported in 2007 AIR SCW 5589, the Hon’ble Apex Court in Paragraph No.24 observed thus:-
“It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. The rule of prudence may require more careful scrutiny of their evidence. But if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.”

5. In the case of Baldev Singh vs. State of Haryana reported in 2015 ALL MR(Cri) 4967(SC), the Hon’ble Apex Court observed thus,
“10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.”

6. Keeping in mind the aforesaid guidelines the testimony of the police witnesses is to be scrutinized carefully. The prosecution mainly relied upon the testimony of PW1-Gajanan Koparkar, PW2- Vinod Wankhede, PW3-Digambar and PW6-Devidas Kodape, who are all working as Head Constables in the Police Department. PW4- Ashok Shivankar and PW5-Rameshwar Bawane are the panch witnesses who have not supported the case of the prosecution. In view of this, the testimony of police witnesses is to be scrutinized carefully.

7. The evidence of PW3-Digambar Bhankhede, Head Constable shows that on 21.8.2006 at about 10.00 am, he a received secret information about manufacturing illicit liquor by accused at Selu-Shivar. He took entry in station diary, called two panchas and proceeded along with his staff and panchas to the said village. They all went towards the nullah and behind the side of bushes found 30 tin pots containing mahuwa wash, powder of battery cells etc. The accused disclosed to him that it belongs to him. PW3 then took sample of in one bottle which was sealed and labelled. Rest of the articles were destroyed by the police on the spot itself. Seizure panchnmma in that regard was recorded at Exh.22. An Offence came to be registered vide CR. No. 3059/2006 vide Exh.23. The accused was arrested. Statements of the witnesses were recorded and the sample was sent to CA office on 21.8.2006. The testimony of this witness was not challenged by the defence in the cross-examination and his evidence is well supported by the testimony of PW1-Gajanan Koparkar and PW2-Vinod and PW6- Devidas Kodape. The testimony of PW1, PW2 and PW6 is on the same lines. Their testimony has been corroborated on all material aspect. The prosecution has failed to elicit any adverse thing in the testimony of these witnesses in their cross-examination.

8. The seizure panchnama (Exh.22) shows that the 30 containers of mahuwa wash was mixed with poisonous chemical, Nausagar, Turti (alum), Mahuwa, jaggery, powder of battery cells and leave of besharam plants, totalling 450 litres each. The same was taken charge and seized from the place of incident. Thus, the seizure panchnama supports the overall testimony of the witnesses. The CA report at Exh.28 discloses that it does not contain any poisonous substance except ethyl alcohol. The learned trial Judge held that the prosecution has proved it case beyond reasonable doubt. Although the poisonous substance was not found the intoxicant material was found at the place of incident. The presence of the accused at the place of incident is proved by the prosecution and it is not disputed by the defence. Thus, no interference is called for in the impugned judgment.

9. At this stage, the learned advocate submits that the accused has already undergone one month imprisonment and he is the sole bread earner. Hence leniency be shown to him. Considering the nature of offence and also considering the age of the accused, in my view, the following order would meet the ends of justice. Hence the following order :-
ORDER
(i) Criminal Appeal No. 125/2008 is partly allowed.
(ii) The impugned judgment of conviction dated 30.1.2008 passed by learned Ad-hoc Addl.Sessions Judge-2, Wardha in Sessions Trial No.181/2006 is maintained. However, the appellant/ accused is sentenced to suffer the period already undergone by him.
(iii) The fine amount is increased to Rs. 2,000/-, instead of Rs. 500/-, which shall be deposited within a period of four weeks from the date of receipt of this order.

Decision : Order accordingly