JUDGMENT - (1) This is an appeal by the State challenging the acquittal of Madhukar Gopinath Lolge, a tonga driver, of Ahmednagar, under S. 66(1)(b) of the Bombay Prohibition Act, by the Judicial Magistrate, First class, III Court, Ahmednagar.

(2) The Respondent, Madhukar, was charg-sheeted before the Judicial magistrate, First Clss, Ahmednagar, on the accusation that on 13th September 1962, early in the morning, at about 2-30 Oclock, the respondent, Madhukar, and his co-accused, Khandu, were found going on a bicycle, carrying illicitly distilled country liquor in two bladderws having a total quantity of 24 bottles. They were thus charged with having committed offences under Ss. 66(1)(b) and 83 of the Bombay Prohibition Act.

(3) Both the accused pleaded not guilty. The respondent Madhukar stated in his examination under section 342 of the Code of Criminal Procedure, that he had been falsely implicated in this case by the Police Inspector Pawar, that he was in the service of one Vithal Hari Lagade as a tonga driver who owned a tonga, that on the night in question, at about 1-30 a.m.,. he had returned to the Sarjepura locality in the tonga from the railway station, that he kept the tonga and its horse behind the Police Head Quarters and started going home on foot. When he came near the chowk in the Sarjepura locality, a policeman came near him in a jeep car and told the respondent that he was called by the Home Inspector Pawar. He was taken in the jeep car near the petrol pump. He was beaten by the Home Inspector. At that time two rubber bladders and one bicycle were found lying near the Police Inspector Pawar. He denied that he had ridden the bicycle or that he had borrowed it from anyone. He also denied that he was trasporting liquor on that bicycle. He further alleged that he was implicated on a mere suspicion and that the witness Shankar Kadekar who was examined as a Panchi, had given false evidence as he had not given him a free lift in his tonga.

(4) At the trial the prosecution examined one Shankar Kadekar, who in his examination-in-chief supported the prosecution case to a substantial extent, but admitted in cross-examination that his elder brother Gulab was a policeman and that since the last 2 or 3 years Gulab was serving as an orderly constable under the Police Inspector Pawar who had challaned this case. He also admitted that this Gulab occupies quarters in the Police Head Quarters and that the witness was also residing, with Gulab. To further questions by the Court, the witness also admitted that he had made certain statements before the Court because he was told to say so by the Inspector Pawar and that he had made a false statement in his examination-in-chief that he had seen accused Nos. 1 and 2 throwing down in bicycle and running away. It is onvious, therefore that this witness did not inspire the confidence of the Magistrate and not much reliance has been placed on the testimony of this witness in this Court either.

(5) The Second witness examined by the prosecution was one Rabha Hari, who apparently supported the prosecution case in his examination-in-chief, but gave it up altogether when he stated that he failed to disclose during investigation that the respondent was then driving the bicycle or that the other accused was on the bar of that bicycle. he admitted that he had seen accused No. 2 for the first time in Court after he saw him on that night and that he could see the face of accused No. 2 that night for a second. Even the testimony of this witness was not therefore of much assistance to the prosecution.

(6) The third witness is one Shaikh Shabir Hussain Rajabali. Possibly he was examined to show that the bicycle, which was seized at the spot, was hired or borrowed by the respondent, Madhukar, but the witness did not support this part of the prosecution case. In fact, hestated that he had given this bicycle to one Moti Mohomed, that Moti Mahomed did not return the bicycle to him and that it was Moti Mohome

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