{"id":189384,"date":"1962-07-24T00:00:00","date_gmt":"1962-07-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhagwanbhai-dulabhai-jadhav-vs-state-of-maharashtra-on-24-july-1962"},"modified":"2019-03-11T21:35:46","modified_gmt":"2019-03-11T16:05:46","slug":"bhagwanbhai-dulabhai-jadhav-vs-state-of-maharashtra-on-24-july-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhagwanbhai-dulabhai-jadhav-vs-state-of-maharashtra-on-24-july-1962","title":{"rendered":"Bhagwanbhai Dulabhai Jadhav vs State Of Maharashtra on 24 July, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhagwanbhai Dulabhai Jadhav vs State Of Maharashtra on 24 July, 1962<\/div>\n
           PETITIONER:\nBHAGWANBHAI DULABHAI JADHAV\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT:\n24\/07\/1962\n\nBENCH:\n\n\nACT:\nProhibition--Transport\tof  contraband\tarticles  by   motor\nvehicle--Witnesses   to\t search,  if  must  belong  to\t the\nlocality--Appeal    against    acquittal--Presumption\t  of\ninnocence--Power of High Court--Bombay Prohibition Act, 1949\n(Bom, 25 of 1949), ss. 65 (b) 81, 83, 117--Code of  Criminal\nProcedure 1898 (Act V of 1898) ss. 102,103.\n\n\n\nHEADNOTE:\nThe two appellants, who were tried along with there  others,\nwere  acquitted by the Judicial Magistrate of charges  under\nss.  65(a),66(b),81  and 83 of the Bombay  Prohibition\tAct,\n1949, but were convicted by the High Court in appeal by\t the\nState.\t The Magistrate found that the prosecution  evidence\nwas  insufficient  to establish conspiracy  or\tabetment  in\ntransporting the contraband liquor and tobacco found in\t the\ncar on search.\tThe High Court took a different view of\t the\nevidence and allowed the appeal so far as the appellants and\nanother\t were  concerned.   It was urged on  behalf  of\t the\nappellants that the search was in contravention of s. 103 of\nthe  Code  of  Criminal Procedure and  the  finding  of\t the\ncontraband articles had not been proved.\nHeld, that a motor car was not a 'place' within the  meaning\nof ss. 102 and 103 of the Code of Criminal Procedure or\t the\nBombay\tProhibition  Act, 1949, and S. 103 of the  Code\t had\ntherefore  no  application to a search of a  motor  vehicle.\nConsequently, it was not obligatory upon the Police  Officer\nto  comply with the formalities prescribed by  that  section\nnor upon the Court to discard the Panchnama or the  evidence\nof  the\t finding of the articles where no witnesses  of\t the\nlocality could be called.\nAlthough  the  High Court in the convicting  the  appellants\nunder  s.  66 (b) of the  Prohibitiuontion  Act,  conviction\nunder ss. Act was not sustainable and must rate was in error\nin  discarding\tthe entire  evidence  because  discrepancies\ntherein without appraising its intrinsic value.\n387\nHeld, further that the Code of Criminal Procedure places  no\nspecial limitation on the powers of the High Court in  deal-\ning with an appeal against acquittal, It can review the evi-\ndence and arrive at its own conclusion.\t The presumption  of\ninnocence  applies with equal, if not greater force in\tsuch\nan  appeal and the burden of proving its own case  lying  as\nalways\ton  the\t prosecution.\tThe  High  Court  would\t not\ntherefore  lightly disturb findings arrived at by the  trial\ncourt on appreciation of the oral evidences\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.56 ’61.
\nAppeal\tby special leave from the judgment and\torder  dated
\nAugust 16, 1960, of the Bombay High Court in Cr.  A. No. 225
\nof 59.\n<\/p>\n
B. B. Tawakley and A. G. Ratnaparkhi, for the appellants.
\nM. S. K. Sastri and P. D. Menon, for the respondent.
\n1962.  July 24.\t The judgment of the Court was delivered by
\nSHAH, J.-With special leave, the two appellants\t Bhagwanbhai
\nDulabai\t Jadav and Haribhai Maganbhai  Bhandare–hereinafter
\nreferred  to  as  accused Nos.\t1  and\t5  respectively-have
\nappealed  against  the\torder passed by the  High  Court  of
\nJudicature at Bombay setting aside the order of the Judicial
\nMagistrate,  First  Class, Thana acquitting them  and  three
\nothers\tof offences punishable under ss. 65(a), 66  (b),  81
\nand  83\t of  the-  Bombay  Prohibition\tAct,  25  of   1949-
\nhereinafter called the Act.\n<\/p>\n
The case of the prosecution may briefly be stated: On August
\n25, 1957, a “wireless message” alerting the officers  posted
\non  “watch  duty”  at Kasheli Naka, District  Thana  that  a
\nmotor-car bearing No BMY 1068 belonging to the first appeal-
\nlant  was carrying “contraband goods”, was  received.\tThis
\nmotor car reached,the Kasheli Naka at about
\n388<\/span>
\n2-30 p.m. on August 28.\t The first accused was then  driving
\nthe  car  the  second accused was sitting by  his  side\t and
\naccused 3 to 5 were sitting in the rear seats.\tPanchas were
\ncalled\tby  the\t Sub-Inspector of police  Deshpande  from  a
\nvillage\t nearby\t and  in  their\t presence  the\tvehicle\t was
\nsearched and from the luggage compartment (which was  opened
\nwith  the  key\tfound on search on the\tperson\tof  the\t 5th
\naccused),  43 sealed bottles of foreign liquor and  a  large
\nnumber of packets of tobacco were found.  A search list\t was
\nprepared  and  the  five  occupants  of\t the  vehicle\twere
\narrested.   The vehicle and the articles found therein\twere
\nattached.  The vehicle was handed over to the Central Excise
\nAuthorities  together with the ignition key and the  key  of
\nthe luggage compartment for taking proceedings in respect of
\npackets of tobacco which were attached.\t A charge sheet\t was
\nthen  filed in the Court of the Judicial  Magistrate,  First
\nClass,\tThana  against the five accused charging  them\twith
\noffences  punishable under so. 65 (a), 66 (b), 81 and 83  of
\nthe Act.  The accused pleaded not guilty to the charge: they
\nstated\tthat the case was “false and entirely got up”,\tthat
\nno “liquor or other contreband” was found in the motor.\t car
\nand  ,,the whole plot was engineered by the enemies  of\t the
\n1st  accused”.\tThey denied that the motor-car was  searched
\nin their presence.  The fifth accused denied that the key of
\nthe luggage compartment was found on his person.  The  trial
\nMagistrate   held   that  the\tbrosecution   evidence\t was
\ninsufficient  to establish that the persons  accused  before
\nhim were acting in conspiracy or were abetting each other in
\ntransporting  contraband articles in the car  and  acquitted
\nthem.\n<\/p>\n
Against the order of aquittal, the State of Bombay  appealed
\nto the High Court of Bombay. The High Court  observed\tthat
\nthe  trial  court  treated  the\t case  as  “a\tmathematical
\nproblem”, and
\n389<\/span>
\nexamined  the  evidence\t giving undue  importance  to  minor
\ndiscrepanies.\tIn the view of the High Court  the  evidence
\nestablished that in consequence of information received from
\npolice-station\tVapi, motor oar No. BMY 1068 was stopped  at
\n2-30  p.m.  on August 28, 1957, near Kasheli Naka,  that  at
\nthat  time the 1st accused was driving the motor  car  which
\nbelonged to him, that accused No. 2 was sitting near him and
\naccused Nos. 3 to 5 were sitting in the rear seats, that the
\nkey  of the luggage compartment was found on the  person  of
\nthe  5th  accused, that on opening that compartment  in\t the
\npresence of the Panchas, 43 bottles of foreign liquor and  a
\nlarge number of packets of tobacco were found, and that\t the
\nevidence  warranted  the conviction of all the\taccused\t for
\noffences punishable under as. 65(a), 66(b), 81 and 83 of the
\nBombay Prohibition Act.\t The High Court accordingly  allowed
\nthe  appeal  against  accused Nos. 1, 2 and  5\tof  all\t the
\noffences  and  directed\t each of them  to  undergo  rigorous
\nimprisonment  for one year and pay a fine of Rs.  500\/-\t for
\neach  of the offences; and in default of payment of fine  to
\nrigorous  imprisonment\tfor  3 months  in  respect  of\teach
\noffence, and directed that the substantive sentences do\t run
\nconcurrently.\tThe appeal against accused Nos. 3 and 4\t was
\ndismissed  because they could not be served with the  notice
\nof appeal.\n<\/p>\n
The  High  Court  was undoubtedly  dealing  with  an  appeal
\nagainst\t an  order  of a quittal but the  Code\tof  Criminal
\nProcedure  placed no special limitation upon the  powers  of
\nthe High Court in dealing with an appeal against an order of
\naquittal.  The High Court is entrusted with power to  review
\nevidence  and  to  arrive  at  its  own\t conclusion  on\t the
\nevidence.  There are certainly restrictions inherent in\t the
\nexercise of the power, but those restrictions arise from the
\nnature\tof the jurisdiction which the High Court  exercises.
\nIn a Criminal trial the burden
\n390<\/span>
\nalways lies on the prosecution to establish the case against
\nthe  accused and the accused is presumed to be\tinnocent  of
\nthe  offence charged till the contrary is established.\t The
\nburden\tlies  upon the prosecution, and the  presumption  of
\ninnocence  applies with equal, if not greater, force  in  an
\nappeal to the High Court against an order of acquittal.\t  In
\napplying  the  presumption of innocence the  High  Court  is
\nundoubtedly  slow to disturb findings based on\tappreciation
\nof oral evidence for the court which has the opportunity  of
\nseeing\tthe  witnesses\tis always in a\tbetter\tposition  to
\nevaluate their evidence than the court which merely  persued
\nthe  record.   In the present case, the High  Court  in\t our
\njudgment, was right in holding that the trial court  ignored
\nthe  broad features of the prosecution case, and  restricted
\nitself\tto  a  consideration of\t minor\tdiscrepancies.\t The
\nMagistrate meticulously juxtaposed the evidence of different
\nwitnesses  on disputed points and discarded the evidence  in
\nits entirety when discrepancies were found.  That method was
\nrightly\t criticised  by the High Court as  fallacious.\t The
\nMagistrate  had to consider whether there was  any  reliable
\nevidence  on  question which had to be\testablished  by\t the
\nprosecution.\tUndoubtedly,  in  considering  whether\t the
\nevidence  was realiable he would be justified  in  directing
\nhis  attention to other evidence which contradicted  or\t was
\ninconsistent   with   the  evidence  relied  upon   by\t the
\nprosecution.  But to discard all evidence because there were
\ndiscrepancies  without\tany  attempt at\t evaluation  of\t the
\ninherent quality of the evidence was unwarranted.
\nSub-Inspector  Deshpande  spoke about the  wireless  message
\nreceived  at  the  Kasheli Naka, about the  arrival  of\t the
\nmotor-oar  of the first accused at 2-30 in the afternoon  of
\nAugust 28, 1957, about the search of the car in the presence
\nof the Panchas and the discovery of 43 ‘bottle of foreign
\n 391<\/span>
\nliquor and packets of tobacco in the luggage compartment  of
\nthe   motor  car.   Nothing  was  elicited  in\tthe   cross-
\nexamination  which  threw any doubt upon the  truth  of\t the
\nstory, and no adequate reason was suggested why he should be
\nwilling falsely to  involve  the accused, in the  commission
\nof a serious   offence by fabricating false evidence.He\t was
\ncorroborated by the contents of the “Panchnama”, which was a
\nwritten record contemporaneously made about the search,\t and
\nthe evidence of the Panch witness Pandu Kamliya.   Deshpande
\nwas  also  partially supported by  headconstable  Chodabrey.
\nThe latter witness deposed that the motor-oar driven by\t the
\nlot  accused  was stopped at Kaheli Naka  and  panchas\twere
\ncalled,\t but  according to him, search was made\t before\t the
\npanchas\t arrived  and  the bottles were\t taken\tout  of\t the
\nluggage compartment and placed near the car.  We agree\twith
\nthe  view of High Court that the evidence of Head  Constable
\nCodabrey though some-what inconsistent with the evidence  of
\nSub-Inspector Deshpande and the panch witness, accorded with
\ntheir  story that the liquor bottles were in  the  motor-oar
\nwhen  it  was stopped near the Kasheli Naka on\tthe  day  in
\nquestion.    That  evidence  by\t itself\t is  sufficient\t  to
\nestablish that the accused possessed the bottles of  foreign
\nliquor.\n<\/p>\n
It was urged, however, that under the law making of a search
\nin  the\t presence of independent witnesses of  the  locality
\ncalled for that purpose was obligatory, and as according  to
\nthe  evidence of Head Constable Chodabrey and Panch  witness
\nLaxman Ganpat the search was held without complying with the
\nformalities  prescribed by s. 103 of the Criminal  Procedure
\nCode,  the panchnama about the search of the motor-car,\t and
\nthe evidence of the finding of the articles therein must  be
\ndiscarded and the rest of the evidence was not sufficient to
\ndisplace the presumption of innocence which
\n392<\/span>
\nby the order of acquittal was reinforced.  We are unable  to
\nagree  with  this  contention.\t Section  117  of  the\t Act
\nprovides, “Save as otherwise expressly provided in this Act,
\nall  investigations,  arrests,\tdetentions  in\tcustody\t and
\nsearches shall be made in accordance with the provisions  of
\nthe  Code  of  Criminal procedure, 1898:  provided  that  no
\nsearch\tshall be deemed to be illegal by reason only of\t the
\nfact  that witnesses for the search were not inhabitants  of
\nthe  locality in which the place searched is situated”.\t  In
\nview  of  that\tprovision it is\t obligatory  upon  a  police
\nofficer\t about\tto make a search to call upon  two  or\tmore
\nrespectable  inhabitants of the locality in which the  place
\nto be searched is situate to attend and witness the  search.
\nBut a motor-car is not a place within the meaning of as. 102
\nand  103  of the Code of Criminal Procedure;  nor  is  there
\nanything  in  the  Act\tby which a motor  car  would  be  so
\nregarded for purposes of a search.  The provisions  relating
\nto  searches  contained in a. 103 of the  Code\tof  Criminal
\nprocedure  have\t therefore no application and  in  making  a
\nsearch\tof a motor vehicle, it was not obligatory  upon\t the
\npolice\tofficer\t to comply with\t the  requirements  thereof.
\nThis  is  not, however, to say that the\t practice  which  is
\ngenerally  followed  by police officers\t when  investigating
\noffences  under the Act to keep respectable persons  present
\non the occasion of the search of a suspected person or of  a
\nvehicle may be discarded.  Even though the statute does\t not
\nmake it obligatory, the police officers wisely carry out the
\nsearch, if it is possible for them to secure the presence of
\nrespectable witnesses, in their presence.  This is a healthy
\npractice  which\t leads\tto cleaner investigation  and  is  a
\nguarantee  against  the oft-repeated charge  against  police
\nofficers of planting articles.\n<\/p>\n
It was strenuously urged by counsel for the appellants\tthat
\nthe High Court did not attach suffi-\n<\/p>\n
393<\/span><\/p>\n
cient  importance  to  a piece of  evidence  which  strongly
\nmilitated  against the truth of the prosecution case.\tThis
\npiece  of  evidence.,  it  was\tcontended,  related  to\t the
\nignition  key and the luggage compartment key,\tproduced  at
\nthe  trial.   As  we have already  observed,  the  motor-car
\ntogether  with the ignition key and luggage compartment\t key
\nwhich\twere  attached\twere  handed  over  to\tthe   Excise
\nAuthorities for investigating the case in respect of tobacco
\nwhich was attached with liquor.\t The motor-car and the\tkeys
\nwere  produced by the Excise Authorities at the instance  of
\nthe  accused before the Magistrate.  An attempt was made  to
\nopen  the luggage compartment of the motor car by using\t one
\nof   the  keys\tand  the  trial\t Magistrate   recorded\t his
\nobservations  in that behalf.  He has stated that  the\tkeys
\nwere  produced\tby the Sub-Inspector of Central\t Excise\t and
\n“with  the white key the look of the carrier was  tried\t for
\nthirty\tminutes.  Oil was allowed to be put.  Even then\t the
\nlock was not opened.  The yellow key was ,,.hen tried on the
\npetrol\ttank  and  was\topened\timmediately.”  It   appears,
\nhowever,  from the evidence of Inspector Jambekar  that\t the
\n“‘white key was the ignition key and the yellow was the\t key
\nof the luggage compartment”.  It is true that Head-Constable
\nChodabrey  say,\t that the “‘white key” was the\tkey  of\t the
\nluggage compartment and with that key the first accused\t bad
\nopened\tthe luggage compartment.  But we fail to  appreciate
\nwhy no attempt was made by the Trial Magistrate to ascertain
\nwhether the yellow key could be used for opening the luggage
\ncompartment  and whether the white key fitted  the  ignition
\nswitch.\t  In view of this infirmity it is difficult to\thold
\nthat the story of the finding of the key and the  attachment
\nof liquor after opening the luggage compartment of the motor
\noar was untrue.\n<\/p>\n
394<\/span><\/p>\n
The case tried by the Trial Magistrate was simple.  Thers is
\nno dispute that the police officers had attached 43  bottles
\nof  foreign  liquor  at\t the kasheli  Naka  on\tthe  day  in
\nquestion.  It was the case of the accused that these bottles
\nof  liquor  were not in their possession  and  Sub-Inspector
\nDeshpand  made a false panchnama showing that these  bottles
\nwere  found  in\t the luggage compartment of  the  motor\t car
\nbelonging to the first accused.\t The primary question  which
\nthe trial Magistrate had to consider was about the  credibi-
\nlity of the prosecution evidence in the light of the defence
\nset  up\t by  the accused.  The\tbottles\t of  foreign  liquor
\nattached  by  the police exceeded Rs.2000\/.  in\t value:\t the
\ntrial  Magistrate had to consider whether it was  reasonably
\npossible that the police officers could procure the  bottles
\nto falsely involve the accused, or having attached them from
\nsome  other  person, allow that person to escape  and  plant
\nthem  in the motor-car of the accused and then make a  false
\npanchnama.  No. attempt appears to have been made to examine
\nthe  evidence  in  the\tlight  of  the\tdefence\t set  up  or
\nsuggested.   It was urged that one Inspector Mane of  police
\nstation\t Bhilad was an enemy of the 1st accused.   But\tthat
\ndoes not explain the conduct of Sub-Inspector Deshpande.  It
\nwould indeed be difficult for Deshpande to secure this large
\nquantity of foreign liquor, and even if it could be  secured
\nno rational ground if; suggested why Deshpande would keep it
\nwith  him  on  the  possible chance  of\t the  first  accused
\narriving  at  the  Kasheli Naka.  The High Court  has  on  a
\nconsideration  of the evidence of  Sub-Inspecter  Deshpande,
\nthe   Panch  witness  Pandu  Kamaliya  and  Head   Constable
\nChodabrey come to the conclusion that the accused Nos. 1,  2
\nand  5 were guilty of possessing liquor in contravention  of
\nthe  provisions of the Act, and in our view the\t High  Court
\nwas right in so holding.\n<\/p>\n
395<\/span><\/p>\n
But the order of conviction passed by the High Court and the
\nsentence  imposed are not according to law.  Section  65  of
\nthe  Act  penalises  a person who in  contravention  of\t the
\nprovisions  of the Act, or of any rule, regulation or  order
\nmade or of any licence, pass, permit or authorization  there
\nunder–(a)  imports  or exports any intoxicant\t(other\tthan
\nopium) or hemp, and the expression “import” is defined in s.
\n2(20)  as  meaning “to bring into the State  otherwise\tthan
\nacross\ta  customs frontier.” There is no  evidence  on\t the
\nrecord that the accused or any of them imported the  bottles
\nof foreign liquor into the State.  The circumstance that the
\nbottles\t contained  foreign  liquor  and  the  accused\twere
\nresidents  of the former Portuguese territory of Daman or  a
\nlocality near about, was not, in our judgment, sufficient to
\nprove that the accused bad imported those bottles.  The High
\nCourt  was  there  fore,  in  our  judgment,  in  error\t  in
\nconvicting  the\t accused  of the  offence  under  s.  65(a).
\nAgain,\tthere  is  no  evidence,  and  the  High  Court\t has
\nconsidered none, which establishes that two or more  persons
\nhad  agreed to commit or caused to commit any offence  under
\nthe Act.  Section 83 of the Bombay Prohibition Act  provides
\npunishment  for conspiracy to commit or cause to  commit  an
\noffence\t under\tthe  Act.  But an  inference  of  conspiracy
\ncannot be made from the facts proved in this case, viz. that
\nthe  five accused Were, found in a motorcar which  contained
\nin  its\t luggage  compartment a\t number\t of  foreign  liquor
\nbottles\t and  some  of\tthe  accused  were  blood-relations,
\nConviction  for\t the offence under a. 83  is  therefore\t not
\nwarranted  by the evidence.  Again, if accused Nos. 1 and  5
\nare  proved  to\t have  committed  the  substantive   offence
\npunishable  under  s. 66 (b) of the Act it is  difficult  to
\nappreciate  how they can also be convicted of  abetting\t the
\ncommission of that offence.  The offence under s. 81 of\t the
\nAct is therefore also not made out.  The appellants
\n396<\/span>
\nwere accordingly liable to be convicted only of the  offence
\nunder  a.  66(b)  of  the  Act,\t and  the  maximum  term  of
\nimprisonment  for  a  first offence  punishable\t under\tthat
\nsection\t is rigorous imprisonment for six months and a\tfine
\nof Rs. 1, 000\/-.  We accordingly modify the order passed  by
\nthe High Court and maintain the conviction of accused Nos. 1
\nand 5 under a. 66 (b) and set aside the order of  conviction
\nunder  as.  65 (a), 81 and 83 of the Act  and  the  sentence
\npassed\tin  respect of those offences.\tWe also\t modify\t the
\nsentence imposed by the High Court for the offence under  a.
\n66 (b) of the Act, and direct that each appellant do  suffer
\nrigorous  imprisonment for six months and pay a fine of\t Rs.
\n500\/-, and in default of payment of fine do suffer  rigorous
\nimprisonment for one month and fifteen days.
\nSubject to that modification the appeal is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhagwanbhai Dulabhai Jadhav vs State Of Maharashtra on 24 July, 1962 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-189384","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhagwanbhai Dulabhai Jadhav vs State Of Maharashtra on 24 July, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bhagwanbhai-dulabhai-jadhav-vs-state-of-maharashtra-on-24-july-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhagwanbhai Dulabhai Jadhav vs State Of Maharashtra on 24 July, 1962 - 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