Dilip Suresh Sansi vs State of Gujarat

Honourable Mr. Justice S.G. Shah

The petitioner has challenged his conviction for the alleged offences punishable u/ss.65AE, 66B and 116B of the Bombay Prohibition Act vide judgment and order dated 15.1.2004 by the learned JMFC, Dahod in Criminal Case No. 779 of 2001, which was confirmed by Additional Sessions Judge and Presiding Officer, Fast Track Court No. 3, Dahod in Criminal Appeal No. 72 of 2004 (new) having original Criminal Appeal No. 2 of 2004 (old) by judgment and order dated 16.1.2006. The applicant was on bail during the trial and at present also, in view of the order dated 3.2.2006. Heard Mr. M.I. Mansuri, learned advocate for the applicant and Ms. Jirga Jhaveri, learned A.P.P. for the State.

Though the learned A.P.P. has supported both the judgments i.e. of trial Court and appellate Court, except endorsing the view taken in such judgments, State has nothing further to add on merits - either on facts or on law point. In view of such fact, we have to scrutinize both the judgments with reference to the submissions by the petitioner, which are as under;

(1) Panch witnesses have not supported the prosecution and thereby recovery from the given place is not proved.

(2) There is no independent witness except complainant, who is Police Officer stating that liquor was seized from the given place during raid.

(3) Presumption u/s.116B is not proper inasmuch as there is no proof and evidence on record either regarding actual possession of seized liquor from the applicant or quality and quantity of liquor alleged to be seized and even there is no confirmation about the ownership of the place by the applicant, so as to connect the applicant with the place and seizure itself.

Learned advocate Mr. Mansuri has pointed out relevant discussion from the judgments whereby both the Courts have confirmed conviction of the applicant, submitted that, there is no proper appreciation of evidence and conviction is based solely upon the presumption on every count. He, therefore, submitted, relying upon few judgments, which may be discussed hereinafter that conviction of the applicant cannot sustain and, therefore, requested to allow the petition by acquitting the applicant.

I have carefully examined the impugned judgments. It becomes clear from such judgments that say of the applicant is correct so far as the history on the date of raid is concerned as well as details of witnesses and their depositions. That on 5.3.2001, upon specific information, Prohibition Inspector had initiated raid at the house of the applicant. However, at that time, applicant had run away from the place and raiding party has found one place with some digging wherein after removing some sand, total 120 bottles of liquor was found. Therefore, the investigating agency has registered a case by recording complaint, which is at Exh.9 before the trial Court and after investigation, chargesheet was filed before the trial Court. However, before the trial Court, Panch witnesses have not admitted about their presence at the time of recovery of muddamal articles from the given place and even refused to accept that they were members of the raiding party at the time and place. The only witness, who confirms the prosecution case is Police Officer, namely, Ramsinh Gulabsinh. However, he has no option but to support the case of the prosecution, which is recorded in complaint and submitted before the Court. There is no other evidence on record either in the form of independent witness to confirm that actual raid was taken place or that muddamal liquor was seized from the given place or that given place was owned, possessed or controlled by the applicant or that in fact 120 bottles were in sealed condition with brand name or that all such bottles were also having liquor so as to constitute the offences as alleged.

Though there was no such evidence on record, the trial Court has proceeded further to confirm the conviction stating that appellant - accused has failed to bring on record that house where the raid was laid, was not owned by him or that there was any enmity with the police, so as to lodge false complaint against him. The trial Court has observed that since the applicant - accused has run away from the place and since the applicant has failed to take defence regarding ownership of the house, there is no need of independent witness or corroboration of Panch witness and thereby the trial Court has taken help of Section 116, though it is not referred as such, regarding presumption that everything stated by the Investigating Officer is correct and that seized bottles were of liquor only and thereby the convicted the applicant of imprisonment of six months with penalty of Rs. 1000/- and in default of payment, additional imprisonment of three months. Such order of conviction was confirmed by the appellate Court more or less on the same ground that the applicant has failed to prove that he is not the owner of the house where raid was conducted.

Considering the above evidence and discussion of the trial Court as well as appellate Court, the only issue requires to be considered at present is whether the prosecuting agency has proved the commission of offence without reasonable doubt or not and that whether conviction can be confirmed by taking help of the provision of Section 116B regarding presumption even in absence of minimum evidence to that effect.

I have gone through the judgment of both the trial Courts in detail and considered the rival submissions. However, before discussing the observation and findings in the judgment of both trial Court and appellate Court, it would be appropriate to recollect the settled legal position so far as such cases are concerned. For the purpose we have to refer decisions of this Hon''ble Court in following cases (1) State of Gujarat Vs. Bhimabhai Kalidas Patel, (2) Dhirajlal Gandabhai and Others Vs. State of Gujarat, and (3) Dhirajlal Gandabhai and Others Vs. State of Gujarat, . The sum and substance of all above judgments are such that though law provides for presumption u/s. 116B of the Bombay Prohibition Act, proper facts must first be established before a presumption can be raised and thereby it is not necessary to establish any evidence that the sealed bottle was bearing the original label indicating the name of any known brands of spirits and also the name of its manufacturer.

It would be appropriate to reproduce the relevant text from the judgment of Dhirajlal Gandabhai (supra)-

panchas have not supported the prosecution case. P.S.I. complainant has admitted in his cross-examination that the seal bearing signatures of the panchas were not affixed on the bottles and that he had not made inquiry regarding the companies whose labels were found on the bottles. P.S.I. has further admitted that he had not made any enquiry whether the seals of the bottles were original or not. Further, there is no independent cogent evidence connecting the petitioners accused with the offences alleged against them. Prosecution has failed to prove that the car belonged to accused persons and that they were in possession of that car. On the contrary, panchas have deposed that the accused persons were standing near the car when they were called at the Police Station. The bottles were also lying in the Police Chowky. Neither the signatures of the circumstances, the learned Magistrate has erred in raising presumption under Sec.116B of the Bombay Prohibition Act.

The above view was also confirmed in the later judgment of Gulabbhai Ranchhodbhai (supra). Whereas in the case of Maharaj Prithvisinghji Bhimsinghji Vs. State of Bombay (now Rajasthan), , it is confirmed that based upon circumstantial evidence only, there cannot be inference that the accused has knowledge of the contents of intoxicant item in the muddamal articles. In such reported case, though such muddamal articles were recovered from the luggage of the accused, Supreme Court has given benefit to him whereas in our case, even possession from the accused is not proved. In the case of Patel Jethabhai Chatur Vs. State of Gujarat, , the Apex Court has given benefit of doubt to the accused even when liquor was found in hands of the person in a liquor party, because the Investigating Agency needs to prove the nature of the contents. In the case of State of Gujarat Vs. Chinubhai Gopaldas, , the Apex Court has held that even in case of labeled and branded liquor, few bottles at random should be analysed and if contraband material was found the whole stock should be considered as contraband, but not otherwise.

If we carefully read the above decisions and apply the legal position to the present case, then, it is clear that in the present case also the trial Court as well as the appellate Court has erred in taking resources of legal provision of presumption against the applicant while convicting him, more particularly, when there is no evidence on record either regarding quality or quantity and existence of seal and label on seized muddamal. It is certain that except the counting of the bottles with name of the brand, there is nothing in the investigation and evidence that such muddamal was ever examined for its contents or to prove that they are in fact intact and sealed and having original label of original manufacturer. Therefore, in absence of specific evidence from technical expert, say, FSL, and in absence of specific evidence regarding quality and quantity of muddamal, and in absence of proper "evidence by the witness confirming the seizure from the given place, and in absence of recovering the muddamal from the person of the accused, and in absence of proving the link and connection of prohibited articles directly with the applicant, it is difficult to confirm the conviction of a person. Both the trial Court and appellate Court have also committed error in stating that because the accused has failed to prove his innocence, they are convicting him because the fact remains that the primary duty to prove the case beyond reasonable doubt rests upon the prosecution and if prosecution has not led cogent evidence to connect the accused with the crime, the accused cannot be blamed by stating that he has not come forward to prove his innocence beyond reasonable doubt.

In view of the above facts and circumstances and discussions, this revision application deserves to be allowed.

For the foregoing reasons, the criminal revision application is allowed. The conviction of the applicant by judgment and order dated 15.1.2004 passed in Criminal Case No. 779 of 2001 as well as the judgment and order dated 16.1.2006 passed in Criminal Appeal No. 72 of 2004 (new) having original Criminal Appeal No. 2 of 2004 (old) is set-aside. Since the applicant is on bail, his bail bond shall stand cancelled. Rule is made absolute accordingly.