1. Applicant has filed this Revision Application challenging the Judgment and order dated 27.1.2000 passed by the learned Judicial Magistrate, First Class, Botad, in Criminal Case No. 692 of 1997, whereby the learned Magistrate has held the applicant – accused guilty of the offences under Sections 66(A) and 116 of the Bombay Prohibition Act and sentenced him to suffer imprisonment for 3 months and to pay a fine of Rs.1000/- i/d to further undergo imprisonment for one month, which has been confirmed in Appeal, being Criminal Appeal No.4 of 2000, by the learned Additional Sessions Judge, Bhavnagar, vide Judgment and order dated 28.8.2003. Against the said Judgment and order of conviction, the applicant has preferred this Revision Application.
2. Heard learned Advocate Mr. Y.V. Brahmbhatt, appearing for the applicant and learned APP Mr. Jani, appearing on behalf of the respondent – State.
3. Mr. Brahmbhatt has first read the evidence of the complainant – PSI Narsibhai Govindbhai Vaghasiya – P.W. 3 (Exh.28) and contended that from the oral evidence of this witness it clearly appears that there are material contradictions in the evidence of this witness. He has contended that the panch witness has only admitted his signature in the panchnama, but, the contents of the panchnama is not proved. He has contended that it clearly appears that the panchnama was prepared later on and thereafter the signature of the panch was taken. The panch has not supported the case of the prosecution and, therefore, the contents of panchnama is not proved. He has contended that from the evidence of witness, it is not clearly established that the labels on the bottles are the original one. He has contended that the Police has not recorded the statement of any of the independent witnesses or the statement of manufacturer of liquor. He has contended that to draw the presumption under Section 116-B, the prosecution has to establish that the label found on the sealed bottles indicating the names of the known brand and the name of the manufacturer are the original one. He has contended that when the requirements of Section 116-B are not satisfied, presumption there-under cannot be drawn. He has contended that when the relevant ingredient is not proved beyond reasonable doubt then the presumption cannot be considered regarding recovery of liquor from the petitioner. He has contended that considering the facts and circumstances of the case and the evidence produced on the record, it is clearly established that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, the Court below have committed grave error in holding the applicant guilty of the offence alleged against him. Learned Advocate for the applicant has also relied upon the decision of this Court, viz. (i) in the case of GULABBHAI RANCHHODBHAI & ORS. v/s STATE OF GUJARAT, reported in 1992 (2) G.L.H. (U.J.) 11 and (ii) in the case of DHIRAJLAL GANDABHAI & ORS. v/s STATE OF GUJARAT, reported in 1991 (1) GLR 433.
4. Learned APP Mr. Jani has read the oral evidence of witnesses and the observation of the learned Magistrate and contended that the learned Magistrate has considered all the aspects of the matter and rightly held the applicant – accused guilty of the offence alleged against him. He has further contended that the recovery of muddamal is proved beyond reasonable doubt. In the panchnama the name of brand of liquor is also shown and the applicant has never made any attempt to establish that whether the label recovered from the bottle is original or not and when the said fact is not mentioned before the trial Court then at the stage of final hearing of this Revision Application, it cannot be challenged. Therefore, the learned Magistrate has not committed any error in holding the applicant – accused guilty of the offence alleged against him and has rightly convicted the accused and, therefore, no interference may be called for.
5. I have gone through the Judgments of both the Courts below. I have also considered the arguments advanced by both the learned Advocates and also the papers produced before me. I have also considered the decisions of this Court, relied upon by the learned Advocate for the applicant.
6. From the record it clearly appears that the Panchas have not supported the case of prosecution. It also appears that, except the Panch witness and Police witnesses, the prosecution has not examined any independent witness to support the case of the prosecution and there is no mentioned either in the panchnama or in the complaint or in the deposition of witnesses that the bottle was sealed and intact and there was label indicating the name of its manufacturer. Section 116B of the Bombay Prohibition Act would read as under :
“SECTION – 116B – Where in any trial for any offence of unlawful possession of liquor under this Act, it is provided that the accused person was in the possession of any sealed bottle bearing the original label indicating the name of any known brand of spirits, such as whisky, brandy, rum, gin, club-cup, liquors, milk phunch or of wines such as champagne etc...... and the name of its manufacturer it shall be presumed that the accused person was in possession of liquor.”
As per the said Section, before a presumption can be raised there-under, it is necessary to establish in evidence that the sealed bottle was bearing the original label indicating the name of any known brand of spirits and also the name of the manufacturer. From the record, It clearly appears that at least the condition regarding the manufacturer of the bottles in question has not been fulfilled in the present case.
7. In the present case, it is clearly appeared that the Panchas have not supported the case of the prosecution and there is no mention in the panchnama regarding the seal and slip rapped on the bottle and the recovery of muddamal from the applicant – accused is also doubtful. No independent witness is examined to support the case of prosecution. There are also number of material contradictions in the evidence of witnesses. Therefore, in my opinion both the Courts below have committed error in holding the applicant – accused guilty of the offence charged against him.
8. Accordingly, this Revision Application is allowed. The Judgment and order dated 27.1.2000 passed by the learned J.M.F.C., Botad in Criminal Case No. 692 of 1997, holding the applicant guilty of the offence under Section 66(A) and 116 of the Bombay Prohibition Act and sentencing him to suffer imprisonment for 3 months with fine of Rs.1000/-, confirmed by the learned Additional Sessions Judge, Bhavnagar, in Criminal Appeal No.4 of 2000, vide Judgment and order dated 28.8.2003, is hereby quashed and set aside. The applicant is acquitted from the charges alleged against him. Bail Bond shall stand discharged. Fine, if paid, be refunded to the applicant. R & P, if any, be sent back to the trial Court. Rule is made absolute.
(Z.K.SAIYED, J.) sas