PETITIONER: BHAGWANBHAI DULABHAI JADHAV Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 24/07/1962 BENCH: ACT: Prohibition--Transport of contraband articles by motor vehicle--Witnesses to search, if must belong to the locality--Appeal against acquittal--Presumption of innocence--Power of High Court--Bombay Prohibition Act, 1949 (Bom, 25 of 1949), ss. 65 (b) 81, 83, 117--Code of Criminal Procedure 1898 (Act V of 1898) ss. 102,103. HEADNOTE: The two appellants, who were tried along with there others, were acquitted by the Judicial Magistrate of charges under ss. 65(a),66(b),81 and 83 of the Bombay Prohibition Act, 1949, but were convicted by the High Court in appeal by the State. The Magistrate found that the prosecution evidence was insufficient to establish conspiracy or abetment in transporting the contraband liquor and tobacco found in the car on search. The High Court took a different view of the evidence and allowed the appeal so far as the appellants and another were concerned. It was urged on behalf of the appellants that the search was in contravention of s. 103 of the Code of Criminal Procedure and the finding of the contraband articles had not been proved. Held, that a motor car was not a 'place' within the meaning of ss. 102 and 103 of the Code of Criminal Procedure or the Bombay Prohibition Act, 1949, and S. 103 of the Code had therefore no application to a search of a motor vehicle. Consequently, it was not obligatory upon the Police Officer to comply with the formalities prescribed by that section nor upon the Court to discard the Panchnama or the evidence of the finding of the articles where no witnesses of the locality could be called. Although the High Court in the convicting the appellants under s. 66 (b) of the Prohibitiuontion Act, conviction under ss. Act was not sustainable and must rate was in error in discarding the entire evidence because discrepancies therein without appraising its intrinsic value. 387 Held, further that the Code of Criminal Procedure places no special limitation on the powers of the High Court in deal- ing with an appeal against acquittal, It can review the evi- dence and arrive at its own conclusion. The presumption of innocence applies with equal, if not greater force in such an appeal and the burden of proving its own case lying as always on the prosecution. The High Court would not therefore lightly disturb findings arrived at by the trial court on appreciation of the oral evidences JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.56 ’61.
Appeal by special leave from the judgment and order dated
August 16, 1960, of the Bombay High Court in Cr. A. No. 225
of 59.
B. B. Tawakley and A. G. Ratnaparkhi, for the appellants.
M. S. K. Sastri and P. D. Menon, for the respondent.
1962. July 24. The judgment of the Court was delivered by
SHAH, J.-With special leave, the two appellants Bhagwanbhai
Dulabai Jadav and Haribhai Maganbhai Bhandare–hereinafter
referred to as accused Nos. 1 and 5 respectively-have
appealed against the order passed by the High Court of
Judicature at Bombay setting aside the order of the Judicial
Magistrate, First Class, Thana acquitting them and three
others of offences punishable under ss. 65(a), 66 (b), 81
and 83 of the- Bombay Prohibition Act, 25 of 1949-
hereinafter called the Act.
The case of the prosecution may briefly be stated: On August
25, 1957, a “wireless message” alerting the officers posted
on “watch duty” at Kasheli Naka, District Thana that a
motor-car bearing No BMY 1068 belonging to the first appeal-
lant was carrying “contraband goods”, was received. This
motor car reached,the Kasheli Naka at about
388
2-30 p.m. on August 28. The first accused was then driving
the car the second accused was sitting by his side and
accused 3 to 5 were sitting in the rear seats. Panchas were
called by the Sub-Inspector of police Deshpande from a
village nearby and in their presence the vehicle was
searched and from the luggage compartment (which was opened
with the key found on search on the person of the 5th
accused), 43 sealed bottles of foreign liquor and a large
number of packets of tobacco were found. A search list was
prepared and the five occupants of the vehicle were
arrested. The vehicle and the articles found therein were
attached. The vehicle was handed over to the Central Excise
Authorities together with the ignition key and the key of
the luggage compartment for taking proceedings in respect of
packets of tobacco which were attached. A charge sheet was
then filed in the Court of the Judicial Magistrate, First
Class, Thana against the five accused charging them with
offences punishable under so. 65 (a), 66 (b), 81 and 83 of
the Act. The accused pleaded not guilty to the charge: they
stated that the case was “false and entirely got up”, that
no “liquor or other contreband” was found in the motor. car
and ,,the whole plot was engineered by the enemies of the
1st accused”. They denied that the motor-car was searched
in their presence. The fifth accused denied that the key of
the luggage compartment was found on his person. The trial
Magistrate held that the brosecution evidence was
insufficient to establish that the persons accused before
him were acting in conspiracy or were abetting each other in
transporting contraband articles in the car and acquitted
them.
Against the order of aquittal, the State of Bombay appealed
to the High Court of Bombay. The High Court observed that
the trial court treated the case as “a mathematical
problem”, and
389
examined the evidence giving undue importance to minor
discrepanies. In the view of the High Court the evidence
established that in consequence of information received from
police-station Vapi, motor oar No. BMY 1068 was stopped at
2-30 p.m. on August 28, 1957, near Kasheli Naka, that at
that time the 1st accused was driving the motor car which
belonged to him, that accused No. 2 was sitting near him and
accused Nos. 3 to 5 were sitting in the rear seats, that the
key of the luggage compartment was found on the person of
the 5th accused, that on opening that compartment in the
presence of the Panchas, 43 bottles of foreign liquor and a
large number of packets of tobacco were found, and that the
evidence warranted the conviction of all the accused for
offences punishable under as. 65(a), 66(b), 81 and 83 of the
Bombay Prohibition Act. The High Court accordingly allowed
the appeal against accused Nos. 1, 2 and 5 of all the
offences and directed each of them to undergo rigorous
imprisonment for one year and pay a fine of Rs. 500/- for
each of the offences; and in default of payment of fine to
rigorous imprisonment for 3 months in respect of each
offence, and directed that the substantive sentences do run
concurrently. The appeal against accused Nos. 3 and 4 was
dismissed because they could not be served with the notice
of appeal.
The High Court was undoubtedly dealing with an appeal
against an order of a quittal but the Code of Criminal
Procedure placed no special limitation upon the powers of
the High Court in dealing with an appeal against an order of
aquittal. The High Court is entrusted with power to review
evidence and to arrive at its own conclusion on the
evidence. There are certainly restrictions inherent in the
exercise of the power, but those restrictions arise from the
nature of the jurisdiction which the High Court exercises.
In a Criminal trial the burden
390
always lies on the prosecution to establish the case against
the accused and the accused is presumed to be innocent of
the offence charged till the contrary is established. The
burden lies upon the prosecution, and the presumption of
innocence applies with equal, if not greater, force in an
appeal to the High Court against an order of acquittal. In
applying the presumption of innocence the High Court is
undoubtedly slow to disturb findings based on appreciation
of oral evidence for the court which has the opportunity of
seeing the witnesses is always in a better position to
evaluate their evidence than the court which merely persued
the record. In the present case, the High Court in our
judgment, was right in holding that the trial court ignored
the broad features of the prosecution case, and restricted
itself to a consideration of minor discrepancies. The
Magistrate meticulously juxtaposed the evidence of different
witnesses on disputed points and discarded the evidence in
its entirety when discrepancies were found. That method was
rightly criticised by the High Court as fallacious. The
Magistrate had to consider whether there was any reliable
evidence on question which had to be established by the
prosecution. Undoubtedly, in considering whether the
evidence was realiable he would be justified in directing
his attention to other evidence which contradicted or was
inconsistent with the evidence relied upon by the
prosecution. But to discard all evidence because there were
discrepancies without any attempt at evaluation of the
inherent quality of the evidence was unwarranted.
Sub-Inspector Deshpande spoke about the wireless message
received at the Kasheli Naka, about the arrival of the
motor-oar of the first accused at 2-30 in the afternoon of
August 28, 1957, about the search of the car in the presence
of the Panchas and the discovery of 43 ‘bottle of foreign
391
liquor and packets of tobacco in the luggage compartment of
the motor car. Nothing was elicited in the cross-
examination which threw any doubt upon the truth of the
story, and no adequate reason was suggested why he should be
willing falsely to involve the accused, in the commission
of a serious offence by fabricating false evidence.He was
corroborated by the contents of the “Panchnama”, which was a
written record contemporaneously made about the search, and
the evidence of the Panch witness Pandu Kamliya. Deshpande
was also partially supported by headconstable Chodabrey.
The latter witness deposed that the motor-oar driven by the
lot accused was stopped at Kaheli Naka and panchas were
called, but according to him, search was made before the
panchas arrived and the bottles were taken out of the
luggage compartment and placed near the car. We agree with
the view of High Court that the evidence of Head Constable
Codabrey though some-what inconsistent with the evidence of
Sub-Inspector Deshpande and the panch witness, accorded with
their story that the liquor bottles were in the motor-oar
when it was stopped near the Kasheli Naka on the day in
question. That evidence by itself is sufficient to
establish that the accused possessed the bottles of foreign
liquor.
It was urged, however, that under the law making of a search
in the presence of independent witnesses of the locality
called for that purpose was obligatory, and as according to
the evidence of Head Constable Chodabrey and Panch witness
Laxman Ganpat the search was held without complying with the
formalities prescribed by s. 103 of the Criminal Procedure
Code, the panchnama about the search of the motor-car, and
the evidence of the finding of the articles therein must be
discarded and the rest of the evidence was not sufficient to
displace the presumption of innocence which
392
by the order of acquittal was reinforced. We are unable to
agree with this contention. Section 117 of the Act
provides, “Save as otherwise expressly provided in this Act,
all investigations, arrests, detentions in custody and
searches shall be made in accordance with the provisions of
the Code of Criminal procedure, 1898: provided that no
search shall be deemed to be illegal by reason only of the
fact that witnesses for the search were not inhabitants of
the locality in which the place searched is situated”. In
view of that provision it is obligatory upon a police
officer about to make a search to call upon two or more
respectable inhabitants of the locality in which the place
to be searched is situate to attend and witness the search.
But a motor-car is not a place within the meaning of as. 102
and 103 of the Code of Criminal Procedure; nor is there
anything in the Act by which a motor car would be so
regarded for purposes of a search. The provisions relating
to searches contained in a. 103 of the Code of Criminal
procedure have therefore no application and in making a
search of a motor vehicle, it was not obligatory upon the
police officer to comply with the requirements thereof.
This is not, however, to say that the practice which is
generally followed by police officers when investigating
offences under the Act to keep respectable persons present
on the occasion of the search of a suspected person or of a
vehicle may be discarded. Even though the statute does not
make it obligatory, the police officers wisely carry out the
search, if it is possible for them to secure the presence of
respectable witnesses, in their presence. This is a healthy
practice which leads to cleaner investigation and is a
guarantee against the oft-repeated charge against police
officers of planting articles.
It was strenuously urged by counsel for the appellants that
the High Court did not attach suffi-
393
cient importance to a piece of evidence which strongly
militated against the truth of the prosecution case. This
piece of evidence., it was contended, related to the
ignition key and the luggage compartment key, produced at
the trial. As we have already observed, the motor-car
together with the ignition key and luggage compartment key
which were attached were handed over to the Excise
Authorities for investigating the case in respect of tobacco
which was attached with liquor. The motor-car and the keys
were produced by the Excise Authorities at the instance of
the accused before the Magistrate. An attempt was made to
open the luggage compartment of the motor car by using one
of the keys and the trial Magistrate recorded his
observations in that behalf. He has stated that the keys
were produced by the Sub-Inspector of Central Excise and
“with the white key the look of the carrier was tried for
thirty minutes. Oil was allowed to be put. Even then the
lock was not opened. The yellow key was ,,.hen tried on the
petrol tank and was opened immediately.” It appears,
however, from the evidence of Inspector Jambekar that the
“‘white key was the ignition key and the yellow was the key
of the luggage compartment”. It is true that Head-Constable
Chodabrey say, that the “‘white key” was the key of the
luggage compartment and with that key the first accused bad
opened the luggage compartment. But we fail to appreciate
why no attempt was made by the Trial Magistrate to ascertain
whether the yellow key could be used for opening the luggage
compartment and whether the white key fitted the ignition
switch. In view of this infirmity it is difficult to hold
that the story of the finding of the key and the attachment
of liquor after opening the luggage compartment of the motor
oar was untrue.
394
The case tried by the Trial Magistrate was simple. Thers is
no dispute that the police officers had attached 43 bottles
of foreign liquor at the kasheli Naka on the day in
question. It was the case of the accused that these bottles
of liquor were not in their possession and Sub-Inspector
Deshpand made a false panchnama showing that these bottles
were found in the luggage compartment of the motor car
belonging to the first accused. The primary question which
the trial Magistrate had to consider was about the credibi-
lity of the prosecution evidence in the light of the defence
set up by the accused. The bottles of foreign liquor
attached by the police exceeded Rs.2000/. in value: the
trial Magistrate had to consider whether it was reasonably
possible that the police officers could procure the bottles
to falsely involve the accused, or having attached them from
some other person, allow that person to escape and plant
them in the motor-car of the accused and then make a false
panchnama. No. attempt appears to have been made to examine
the evidence in the light of the defence set up or
suggested. It was urged that one Inspector Mane of police
station Bhilad was an enemy of the 1st accused. But that
does not explain the conduct of Sub-Inspector Deshpande. It
would indeed be difficult for Deshpande to secure this large
quantity of foreign liquor, and even if it could be secured
no rational ground if; suggested why Deshpande would keep it
with him on the possible chance of the first accused
arriving at the Kasheli Naka. The High Court has on a
consideration of the evidence of Sub-Inspecter Deshpande,
the Panch witness Pandu Kamaliya and Head Constable
Chodabrey come to the conclusion that the accused Nos. 1, 2
and 5 were guilty of possessing liquor in contravention of
the provisions of the Act, and in our view the High Court
was right in so holding.
395
But the order of conviction passed by the High Court and the
sentence imposed are not according to law. Section 65 of
the Act penalises a person who in contravention of the
provisions of the Act, or of any rule, regulation or order
made or of any licence, pass, permit or authorization there
under–(a) imports or exports any intoxicant (other than
opium) or hemp, and the expression “import” is defined in s.
2(20) as meaning “to bring into the State otherwise than
across a customs frontier.” There is no evidence on the
record that the accused or any of them imported the bottles
of foreign liquor into the State. The circumstance that the
bottles contained foreign liquor and the accused were
residents of the former Portuguese territory of Daman or a
locality near about, was not, in our judgment, sufficient to
prove that the accused bad imported those bottles. The High
Court was there fore, in our judgment, in error in
convicting the accused of the offence under s. 65(a).
Again, there is no evidence, and the High Court has
considered none, which establishes that two or more persons
had agreed to commit or caused to commit any offence under
the Act. Section 83 of the Bombay Prohibition Act provides
punishment for conspiracy to commit or cause to commit an
offence under the Act. But an inference of conspiracy
cannot be made from the facts proved in this case, viz. that
the five accused Were, found in a motorcar which contained
in its luggage compartment a number of foreign liquor
bottles and some of the accused were blood-relations,
Conviction for the offence under a. 83 is therefore not
warranted by the evidence. Again, if accused Nos. 1 and 5
are proved to have committed the substantive offence
punishable under s. 66 (b) of the Act it is difficult to
appreciate how they can also be convicted of abetting the
commission of that offence. The offence under s. 81 of the
Act is therefore also not made out. The appellants
396
were accordingly liable to be convicted only of the offence
under a. 66(b) of the Act, and the maximum term of
imprisonment for a first offence punishable under that
section is rigorous imprisonment for six months and a fine
of Rs. 1, 000/-. We accordingly modify the order passed by
the High Court and maintain the conviction of accused Nos. 1
and 5 under a. 66 (b) and set aside the order of conviction
under as. 65 (a), 81 and 83 of the Act and the sentence
passed in respect of those offences. We also modify the
sentence imposed by the High Court for the offence under a.
66 (b) of the Act, and direct that each appellant do suffer
rigorous imprisonment for six months and pay a fine of Rs.
500/-, and in default of payment of fine do suffer rigorous
imprisonment for one month and fifteen days.
Subject to that modification the appeal is dismissed.