1. Possession of foreign liquor and tobacco in a motor-car — Prosecution under Sections 65(a), 66(b), 81, and 83 of the Bombay Prohibition Act. (Para 2 )
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1962 Supreme(SC) 242
SUPREME COURT OF INDIA
B. P. SINHA, C.J.I., K. N. WANCHOO, AND J. C. SHAH, JJ.
Bhagwanbhai Dulabhai Jadhav and another, Appellants
Versus
State of Maharashtra, Respondent.
A motor vehicle is not a "place" under Sections 102 and 103 of the Code of Criminal Procedure, 1898; therefore, the statutory requirement to have local witnesses present during a search does not apply to the search of a motor vehicle.
Headnote:(A) Bombay Prohibition Act, 1949 - Sections 65(a), 66(b), 81 and 83 - Code of Criminal Procedure, 1898 - Sections 102 and 103 - Search of motor vehicle - Whether the requirements of Section 103 of the Code of Criminal Procedure regarding the presence of local witnesses apply to the search of a motor vehicle - A motor-car is not a "place" within the meaning of Sections 102 and 103 of the Code of Criminal Procedure; therefore, it is not obligatory for a police officer to comply with the requirements of Section 103 when searching a motor vehicle. (Para 6)
(B) Appeal against acquittal - Scope of High Court's power - The High Court is entrusted with the power to review evidence and arrive at its own conclusion - While the presumption of innocence applies with force in an appeal against acquittal, the High Court is justified in disturbing findings if the trial court discarded evidence in its entirety due to minor discrepancies without evaluating the inherent quality of the evidence. (Para 4)
(C) Bombay Prohibition Act, 1949 - Section 65(a) - Import - To convict for "import," there must be evidence that the intoxicants were brought into the State; mere possession of foreign liquor by persons residing in or near a neighboring territory is insufficient to prove import. (Para 9)
(D) Bombay Prohibition Act, 1949 - Section 83 - Conspiracy - An inference of conspiracy cannot be made solely on the basis that several persons were found in a vehicle containing contraband, even if some are blood relations. (Para 9)
Facts of the case:
Police stopped a motor vehicle based on a wireless message alerting them to the transport of contraband. A search of the luggage compartment revealed 43 bottles of foreign liquor and tobacco. The trial court acquitted the occupants, citing minor discrepancies in the prosecution's evidence. The High Court reversed the acquittal, convicting three of the occupants for import, possession, abetment, and conspiracy under the relevant Act.
Findings of Court:
The High Court was correct in reversing the acquittal as the trial court's approach to evidence was fallacious. However, the convictions under sections relating to import, abetment, and conspiracy were not supported by the evidence on record. The accused were only liable for the substantive offence of possession.
Issues: 1. Whether the search of a motor vehicle must comply with the local witness requirements of Section 103 of the Code of Criminal Procedure. 2. Whether the evidence supported convictions for import, conspiracy, and abetment under the Act. 3. The extent to which an appellate court can disturb a finding of acquittal based on the trial court's appreciation of evidence.
Ratio Decidendi: A motor vehicle is not a "place" under Sections 102 and 103 of the Code of Criminal Procedure, 1898, making the presence of local witnesses a healthy practice but not a statutory obligation. Conviction for import requires proof of bringing goods into the state, and conspiracy requires evidence of agreement beyond mere joint presence in a vehicle.
Result: Appeal dismissed; sentences modified. Conviction maintained only under Section 66(b) of the Act.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Legality of search without local witnesses under Section 103, CrPC — Credibility of prosecution evidence regarding the discovery of contraband and keys. (Para 6 , 7 )
3. Trial court erred by discarding evidence over minor discrepancies — Evidence established possession of liquor — Motor-car is not a place under Section 103, CrPC. (Para 4 , 5 , 6 , 8 )
4. A motor-car is not a place within the meaning of Sections 102 and 103 of the Code of Criminal Procedure for search requirements. (Para 6 )
5. Convictions under Sections 65(a), 81, and 83 set aside — Conviction under Section 66(b) maintained with modified sentence. (Para 9 , 10 )
6. Does the requirement to call local witnesses for a search under Section 103 of the Code of Criminal Procedure apply to motor vehicles?
No. A motor-car is not considered a place within the meaning of Sections 102 and 103 of the Code of Criminal Procedure; therefore, it is not obligatory for police officers to comply with the requirements of Section 103 when searching a motor vehicle. (Para 6 )
7. How should a High Court approach the appreciation of evidence when hearing an appeal against an order of acquittal?
While the presumption of innocence applies and the court should be slow to disturb findings based on oral evidence, it must not discard all evidence due to minor discrepancies without evaluating the inherent quality of the evidence. (Para 4 )
8. Does the possession of foreign liquor by residents of a nearby territory automatically establish the offence of import under Section 65(a) of the Bombay Prohibition Act?
No. Mere possession of foreign liquor and residency in a nearby territory are insufficient to prove that the accused imported the bottles into the State. (Para 9 )
9. Can a person be convicted of both abetting an offence and committing the substantive offence under the Bombay Prohibition Act?
No. If the accused are proved to have committed the substantive offence, they cannot also be convicted of abetting the commission of that same offence. (Para 9 )
SHAH, J.:
With special leave, the two appellants Bhagwanbhai, Dulabhai Jadhav and Haribhai Maganbhai Bhandare. hereinafter referred to as accused Nos. 1 and 5 respectively. have appealed against the order passed by the High Court of Judicature at Bombay setting aside the order of the Judicial Magistrate, First Class, Thana, acquitting them and three others of offences punishable under Sections 65 (a), 66 (b), 81 and 83 of the Bombay Prohibition Act, 25 of 1949. hereinafter called the Act.
(2) The case of the prosecution may briefly be stated: On August 25, 1957, a "wireless message" alerting the officers posted on "watch duty" at Kasheli Naka, District Thana that a motor-car bearing No. BMY 1068 belonging to the first appellant was carrying "contraband goods", was received. This motor-car reached the Kasheli Naka at about 2-30 p.m. on AUGUST 28. The first accused was then driving the car, the second accused was sitting by his side and accused 3 to 5 were sitting in the rear seats. Panchas were called by the Sub-Inspector of Police Deshpande from a village nearby and in their presence the vehicle was searched and from the luggage compartment (which was opened with the key found on search on the person of the 5th accused), 43 sealed bottles of foreign liquor and a large number of packets of tobacco were found. A search list was prepared and the five occupants of the vehicles were arrested. The vehicle and the articles found therein were attached. The vehicle was handed over to the Central Excise Authorities together with the ignition key and the key of the luggage compartment for taking proceedings in respect of packets of tobacco which were attached. A charge sheet was then filed in the Court of the Judicial Magistrate, First Class, Thana, against the five accused charging them with offences punishable under Ss. 65 (a), 66 (b), 81 and 83 of the Act. The accused pleaded not guilty to the charge : they stated that the case was "false and entirely got up", that no "liquor or other contraband" was found in the motor-car and "the whole plot was engineered by the enemies of the 1st accused". They denied that the motor-car was searched in their presence. The fifth accused denied that the key of the luggage compartment was found on his person. The trial Magistrate held that the prosecution evidence was insufficient to establish that the persons accused before him were acting in conspiracy or were abetting each other in transporting contraband articles in the car and acquitted them.
(3) Against the order of acquittal, the State of Bombay appealed to the High Court of Bombay. The High Court observed that the trial court treated the case as "a mathematical problem", and examined the evidence giving undue importance to minor discrepancies. In the view of the High Court the evidence established that in consequence of information received from police station Vapi, motor-car No. BMY 1068 was stopped at 2-30 p.m. on August 28, 1957, near Kasheli Naka, that at that time the 1st accused was driving the motor-car which belonged to him, that accused No. 2 was sitting near him and accused Nos. 3 to 5 were sitting in the rear seats, that the key of the luggage compartment was found on the person of the 5th accused, that on opening that compartment in the presence of the Panchas, 43 bottles of foreign liquor and a large number of packets of tobacco were found, and that the evidence warranted the conviction of all the accused for offences punishable under Ss. 65 (a), 66 (b), 81 and 83 of the Bombay Prohibition Act. The High Court accordingly allowed the appeal against accused Nos. 1, 2 and 5 of all the offences and directed each of them to undergo rigorous imprisonment for one year and pay-a fine or Es, 500/- for each of the offences, and in default of payment of fine to rigorous imprisonment for 3 months in respect of each offence, and directed that the substantive sentences do run concurrently. The appeal against accused Nos. 3 and 4 was dismissed beca
