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1977 Supreme(Bom) 238
IN THE HIGH COURT OF BOMBAY
C.T. Dighe, J.
Amritlal Motilal Pathak.... Petitioner.
Versus
State of Maharashtra.... Respondent.
Criminal Revision Application No. 183 of 1977, decided on 30-11-1977.
Advocates appeared :
P.Y. Kulkarni, for petitioner.
B.Y. Deshmukh, P.P., for State.
In order to secure a conviction under section 65(e) of the Bombay Prohibition Act, the prosecution must establish a satisfactory link between the seized article and the analysed article, and must also prove the sale transaction beyond reasonable doubt.
Headnote:
BOMBAY PROHIBITION ACT - SECTION 65(E) - SEIZURE OF CONTRABAND LIQUOR - DELAY IN SENDING SAMPLE TO CHEMICAL ANALYSER - FAILURE TO ESTABLISH LINK BETWEEN SEIZED ARTICLE AND ANALYSED ARTICLE - SALE TRANSACTION NOT ESTABLISHED - CONVICTION QUASHED.
Fact of the Case:
The accused was convicted under section 65(e) of the Bombay Prohibition Act for selling liquor without a permit. The prosecution alleged that the accused sold a bottle of whisky to a punter who was part of a trap laid by the police. The seized bottle was sent to the Chemical Analyser for testing, but there was a delay of two months between the seizure and the sending of the sample.
Finding of the Court:
The court found that there was no satisfactory proof that the bottle analysed by the Chemical Analyser was the same bottle that was seized from the accused. The court also found that the sale transaction was not established beyond reasonable doubt.
Issues: 1. Whether the prosecution had established that the bottle analysed by the Chemical Analyser was the same bottle that was seized from the accused? 2. Whether the prosecution had established the sale transaction beyond reasonable doubt?
Ratio Decidendi: 1. The court held that the prosecution had failed to establish a satisfactory link between the seized article and the analysed article. The delay of two months in sending the sample to the Chemical Analyser, coupled with the lack of evidence as to who had custody of the bottle during that time, raised doubts as to whether the bottle analysed was the same bottle that was seized. 2. The court held that the evidence of the sale transaction was dubious. The panch who testified was not an independent witness and there were discrepancies in his testimony. The court also noted that a copy of the seizure memo was not given to the accused, which further weakened the prosecution's case.
Final Decision: The court allowed the revision petition and acquitted the accused of the offence under section 65(e) of the Bombay Prohibition Act.
2. As the prosecution version proceeds, a bottle of whisky was purchased by the punter on payment of Rs. 6/-. He gave the marked currency note of Rs. 10/- and got back Rs. 4/-. After coming out he gave the necessary signal. In the raid subsequently carried out the returned amount of Rs. 4/- remaining with the punter and the bottle in his hand came to be attached. Similarly, in the premises of the hotel, in the cash box the marked currency note as well as another amount of Rs. 4/- came to be traced. A number of bottles similar to the bottle of whisky sold to punter and others of different varieties were found nearby. They were seized.
3. The accused pleaded not guilty. According to him the whole thing was false. He did not elaborate whether anybody had come to his hotel and whether the Articles as noted in the panchnama Exh. 11 were found in the premises. In the cross-examination of the Investigating Officer, P.W. 3, Head-Constable Vasant Padgal, it is suggested that the raiding party had not at all gone to the hotel nor any incriminating was attached from the possession of the accused but only a false case was filed. According to the statement made by the accused he had refused to give free refreshment to the Police and that is why he was involved in a false case.
4. The seized contraband was sent to the Chemical Analyser. His report Exh. 13 shows that the bottle was received with seals intact. It contained brown liquid. It was marked I.G.N. whisky. The report of the Chemical Analyser shows that the sample contained 43% v/v ethyl alcohol in water and no recognisable medicinal ingredient was detected in it.
5. Besides, the Investigating Officer, the panch Suka and punter Kakad came to be examined at the time of the trial. On the evidence before him, the learned Magistrate convicted the accused.
6. In the revision petition, two main points are made by Mr. Kulkarni for the revision petitioner. In the first place, it is said that there is no satisfactory proof that what was found with the accused was contraband liquor. Secondly, it is said that the sale transaction, which is absolutely necessary for proving any offence under section 65(e) of the Bombay Prohibition Act, 1949, is not established.
7. Both these contentions are to be understood on the material elucidated at the time of the trial. The attached Articles were not before the Court. The marked currency note as well as the other amount in the sum of Rs. 4/- taken from punter and another sum of Rs. 4/- found with the accused are said to have been sent to treasury. The mistake in that connection seems to have been admitted but the fact remains that when the trial proceeded, the learned Magistrate was not having before him the muddemal Articles. Similarly, the bottle which was attached as the bottle purchased by the punter was also not available. The judgment of the Appellate Judge would show that this was also treated as an infirmity conceded by the pros
