Date : 28/06/2012 1. The appellant – State of Gujarat, has filed this Appeal under Section 378(1)(3) of the Code of Criminal Procedure, against the Judgment and order of acquittal dated 18.6.2005 passed by the learned Judicial Magistrate, First Class, Pardi, in Criminal Case No.3850 of 2004, whereby the learned Magistrate has acquitted the respondent – original accused of the charges alleged against him.
2. The short facts of the prosecution case are that on 2.4.2004 at about 23.15 hours on Vapi Over Bridge, near Bhavsar Petroleum, the respondent – accused was found in conscious possession of 210 bottles of English Liquor, valued at Rs.22,050/- in their Bollero Jeep and other illegal articles, like Cartridge, Blank Cheque, Rivolver, etc., valued at Rs.23,180/-. Therefore, the complaint has been filed against the respondent and, after drawing the panchnama, the offence under Sections 66(1)(b), 65(a)(e) and 81 of the Bombay Prohibition Act was registered against the respondents – accused. The said case was registered as Criminal Case No.3850 of 2004 in the Court of learned Judicial Magistrate, First Class, Pardi.
3. Thereafter, the trial was conducted before the learned Magistrate. The prosecution has examined the witnesses and also relied upon the documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate, vide Judgment and order dated 18.6.2005, acquitted the respondent – accused from the charges alleged against him.
4. Being aggrieved and dissatisfied with the said Judgment and order dated 18.6.2005, passed by the learned J.M.F.C., Pardi, in Criminal Case No. 3850 of 2004, the appellant – State of Gujarat, has preferred the above mentioned Criminal Appeal.
5. Heard learned A.P.P. Mr. K.P. Raval, appearing on behalf of the appellant - State and the learned Advocate Mr. Harnish Darji, appearing on behalf of the respondent – original accused.
6. Learned A.P.P. has contended that the learned Magistrate has committed grave error in not properly considering the provisions of law and the Rules. He has contended that the huge quantity of liquor is recovered from the possession of the accused. He has contended that the complaint (Exh.16) gets corroboration from the evidence of the complainant. He has contended that the respondent was found in conscious possession of muddamal liquor and no proper explanation has been given, but, no proper explanation is given by the respondent. It is the duty of respondent to give proper explanation as per Section 106 and 114 of the Evidence Act. He contended that looking to the over all evidence, the prosecution has proved its case beyond reasonable doubt and the learned Magistrate has committed grave error in not believing the case of the prosecution and, therefore, the judgment of the trial Court may be quashed and set aside.
7. I have also heard learned Advocate Mr. Darji, appearing on behalf of the respondent – original accused. Mr. Darji has contended that the ownership of Bollero Jeep is not established and even the identity of the respondent and the contents of recovery panchnama is also not proved. He has contended that Panchas are hostile and they have not supported the case of the prosecution. He has contended that in further statement recorded under Section 313 Cr. P.C., proper explanation is also given by the respondent – accused. He has contended that the learned Magistrate has not committed any mistake in not believing the case of the prosecution and, therefore, no interference may be called for. I have also perused the papers produced before me and the Judgment of the trial Court.
8. From the Judgment of the trial Court, it appears that the both the Panchas have not supported the case of the prosecution and they have been declared as hostile. The learned Magistrate has also observed that when the panchas have not supported the case of prosecution, the prosecution has failed to prove the conscious possession of the muddamal. The prosecution has also not produced any evidence or the order as to how the investigation was carried out by the witness (Exh.20) and, therefore, it can be presumed that the Investigating Officer was not having power to investigate into the matter. The trial Court has also observed that the witnesses, who are examined by the prosecution, are interested witness and the prosecution has not examined any independent witness to support its case. From the deposition of the complainant, it appears that he has narrated the fact of 210 bottles of liquor. However, as per the allegations made in the complaint Revolver, cartridges, cheqeue- book, mobile, etc. were also found in possession of the respondent – accused, but, in the deposition of this witness before the Court, he has not narrated anything that the accused was in possession of cartridges, revolver, etc. The trial Court has observed that looking to the facts and evidence on the record, the prosecution has not proved its case beyond reasonable doubt.
9. In view of the above, I am of the considered opinion that the trial Court has not committed any error in not believing the case of the prosecution and the trial Court was completely justified in acquitting the respondent of the charges levelled against him. I find that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
10. It is also settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasoning when the reasons assigned by the Court below are found to be just and proper. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence find no reason to interfere with the same. Hence, the Appeal is hereby dismissed.
11. In view of above, the Appeal is dismissed. The Judgment and order dated 18.06.2005 passed by the learned J.M.F.C., Pardi in Criminal Case No. 3850 of 2004 in acquitting the respondent – accused is hereby confirmed. Bail Bond, if any, shall stands discharged. R & P to be sent back to the trial Court forthwith.
(Z.K.SAIYED, J.) sas