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CR.A/80/1987 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 80 of 1987
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
STATE
OF GUJARAT
Versus
DHIRUBHAI
G PATEL AND ANOTHER
==========================================Appearance
:
MR MAULIK NANAVATI, ADDL PUBLIC
PROSECUTOR for the Appellant
MR JM PANCHAL for
the Opponents
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 08/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
1. The
present appeal has been preferred by the State of Gujarat
challenging the order dated 11.09.1996 passed by the learned
Sessions Judge, Valsad at Navsari in Criminal Appeal No.33 of 1986,
whereby the learned Appellate Judge has set aside the judgment and
order of conviction dated 07.06.1996 passed by the learned J.M.F.C.,
Valsad in Summary Case No.2897 of 1995.
2. The
prosecution case, in short, is that Shri Manoj Antani (PW-1) received
secret information that liquor was going to be transported into
the State from Bombay in two cars. A raiding party was constituted
and on the basis of the information, a black ambassador car bearing
registration No.MRZ-8257 was intercepted. Accused No.1 was driving
the car and accused No.2 was sitting on the passenger seat. On
conducting search of the car, 24 bags and 3 cartons were found
containing 907 bottles of whiskey, brandy, etc. valuing about
Rs.55,900/-. Samples from bottles were sent for chemical
analysis and on receipt of report, charge sheet was filed. The
accused did not plead guilty and sought trial. On conclusion of
the trial, the learned Magistrate convicted both the accused
persons for offences punishable under Sections 65(A), 11(1)(b) read
with Section 81 of the Bombay Prohibition Act and sentenced each
accused to imprisonment for two years and fine of Rs.3,000/-. No
separate sentence was passed for the offence under Section 81 of the
Act.
3. An
appeal was preferred before the Sessions Court. The learned
Sessions Judge allowed the said appeal on three grounds; (i)
offence was committed on 4.8.1984 and chargesheet was submitted in
Court on 23.8.1985, i.e. Beyond a period of six months and the trial
being a summary trial, bar contained in Section 167(5) would be
attracted and, therefore, the Magistrate could not have taken
cognizance of the offence, (ii) panch witnesses had turned
hostile and there being no independent evidence, conviction was
bad, and (iii) no evidence was led by prosecution to show that
liquor was imported from outside State.
4. Aggrieved
by the reversal of conviction order by the learned Sessions Judge,
the State has preferred the present appeal. Heard Mr. Maulik
Nanavati, Additional Public Prosecution and Mr. J.M. Panchal for the
accused- respondents.
5. Mr.
Nanavati, learned counsel for the State, has submitted that the
reasoning given by the Appellate Judge is erroneous and, therefore,
the judgment of acquittal deserves to be set aside and the order of
conviction passed by the learned Magistrate be confirmed. As
regards application under Section 167(5) of the Criminal Procedure
Code, the learned Prosecutor relying on a decision of the Supreme
Court reported in (1996) 1 SCC 341
has submitted that the language of Section clearly indicates
that the provisions of Section 167(5) will be made applicable
only where the investigation is pending and not where the
investigation is completed and the cahrgesheet has been filed. He
has submitted that in the present case, the investigation had already
been completed and, therefore, there was no occasion to stop the
investigation. Though the chargesheet has been submitted after
expiry of six months, no application for discharge was ever moved
by the accused nor any objection was taken before the learned
Magistrate when he took cognizance of the offence on presentation
of the chargesheet. He has further submitted that assuming that it
is an irregularity, such is curable by virtue of provision
contained in Section 460 of the Code and, therefore, the Appellate
Court was wrong in holding that the learned Magistrate could not
have taken cognizance of the offence. Mr. Nanavati has further
argued that there is no rule of law that conviction cannot be
based on the sole testimony of police witnesses. He has submitted
that the corroboration is only a rule of prudence and not a rule
of law. Lastly, he has submitted that in view of the presumption
contained in Section 103 of the Bombay Prohibition Act, 1949, the
burden was on the accused to explain their possession. In absence
of any such explanation and the fact that the accused were traveling
from Bombay in a car bearing Maharashtra licence registration, the
Sessions Judge has erred in recording a finding that the
prosecution has failed to establish import of liquor by the accused
persons.
6. Per contra,
Mr. J.M. Panchal, learned advocate appearing for the accused persons
has submitted that apart from the fact that the offence is very
old, i.e. of the year 1984, the prosecution has not been able to
establish sufficiently and conclusively that the accused persons had
actually imported liquor from outside State. The raid conducted by
the police is suspect and in absence of any independent
corroboration, the learned Appellate Judge has rightly set aside the
order of conviction. He has further submitted that even if this
Court comes to the conclusion that the bar contained in Section
167(5) of the Code is not made applicable to the facts of the present
case, then also, there is no credible evidence on record to
establish guilt of the accused. He has also submitted that the
testimony of police witnesses, who are interested witnesses, does
not inspire confidence and no reliance can be placed upon their
evidence. He has supported the reasons given by the learned
Appellate Judge and submitted that there is no infirmity or
perversity with the said findings. The conclusion recorded by the
learned Sessions Judge are in consonance with the material on
record and in any case, view taken by the learned Appellate Judge
on the facts of the case is a possible view and, therefore, this
Court should not interfere with the order of acquittal, more so
after lapse of 24 years.
7. Having
considered the rival submissions, we are of the opinion that the
conscious possession of the driver and cleaner is not correctly
established because both of them were driver and cleaner and it is
not always possible to attribute that driver and cleaner had
knowledge of the fact that what was loaded in the truck. Sometime,
it happens that they are only asked to carry truck. Conscious
possession of the accused having been not established, we feel
that for an offence which had allegedly taken place in 1984 and
the first Appellate Court has recorded acquittal, then change in
law should not be pressed against the accused persons because they
believe that the law stood on the date when the conviction took
place, would govern their case. In the background of facts, the
present appeal deserves no consideration and, therefore, the same is
dismissed. Bail bond, if any, stands cancelled.
Office
is directed to send record and proceedings to the Trial Court
concerned forthwith.
(BHAGWATI
PRASAD, J.)
(S.R.BRAHMBHATT,
J.)
omkar
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