The judgment emphasizes the importance of fair investigation, credibility of evidence, and the prosecution's burden to prove conscious possession in cases of alleged offenses.

JUDGMENT :

G.A. SANAP, J.

1. Heard.

2. In this revision application, challenge is to the judgment and order dated 11.09.2015, passed by the learned Additional Sessions Judge, Gondia, whereby the learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate First Class, Tiroda, for the offence punishable under Section 65(e) of the Maharashtra Prohibition Act, 1949 (for short ‘the Prohibition Act’) (Earlier it was Bombay Prohibition act). Learned Judicial Magistrate First Class on conviction sentenced the accused to suffer rigorous imprisonment for three years.

3. The facts are as follows:

PW-4 Police Head Constable Sunil Lakhanprasad Yadav is the informant as well as investigating officer. It is the case of the prosecution that on 06.05.2012 PW-4 received secret information that one person by name Gajanan S/o. Vikram Gose, R/o. Garada was illegally selling the liquor at his house. PW-4, alongwith Police Constable Sanjay Ambule, went to village Garada at about 9:50 p.m. They called panch witnesses for the purpose of raid from the said village. They apprised the panchas about the purpose of raid. They went to the house of the accused. The accused was present in his house. They apprised the accused of the information received by PW-4 and informed him that for the said purpose they have to take a search of his house.

4. It is the case of the prosecution that in presence of panchas, PW-4 and constable Sanjay Ambule took the search of the wadi abutting to the house of the accused. In the said wadi, they found one plastic can containing three liters illicit liquor. It was seized in presence of panchas. PW-4 drew the sample of liquor in one bottle. It was packed, labeled and sealed. The panchanama of the event, occurred on the spot, was drawn. The accused was arrested. In due course, the investigating officer received the Chemical Analyzer (For short ‘CA’) report. CA opined that the sample contained 14.40 % of ethyl alcohol in water. It was not a medicinal/antiseptic/toilet preparation nor a flavoring material. Thereafter, the chargesheet was filed. Prosecution examined four witnesses. Learned Magistrate on consideration of the evidence held the accused guilty and sentenced him, as above. The appeal filed by the accused in the sessions Court was dismissed by the Sessions Judge. The accused is therefore before this Court.

5. I have heard the learned Advocate Ms Sneha Dhote, appointed to represent the accused and the learned APP Ms Mayuri Deshmukh for the State. I have gone through the record and proceedings.

6. Learned Advocate for the accused submitted that the panch witness PW-1 and 2 were on inimical terms with the accused and therefore they have deposed against the accused. Learned Advocate pointed out that the PW-1 was the chairman of the Tanta Mukti Committee and as such, had close contacts with the police. Learned Advocate further submitted that the report was lodged by PW-4. PW-4 conducted the investigation. Learned Advocate submitted that as a matter of law informant and the investigator must not be the same person. It definitely causes prejudice to the accused. In such cases, there is no question of the accused having to show prejudice from such an investigation or to establish bias or a real likelihood of bias on the part of such an investigator. In order to seek support to this submission learned Advocate has relied upon decision in the case of Mohanlal vs. State of Punjab, (2018) 17 SCC 627. Learned Advocate further submitted that there is no evidence on record to show the mode and manner of the storage and preservation of the sample. Learned Advocate submitted that the description of the sample was not recorded in Malkhana Register. Learned Advocate further pointed out that the sample drawn on 06.05.2012 was forwarded to Forensic Science Laboratory (For short ‘FSL’), Nagpur on 16.11.2012. Learned Advocate submitted that there was