BHAGWANBHAI DULABHAI JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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.

(2.) 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 appellant was carrying "contraband goods", was received. This motor car reached the Kasheli Naka at about 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 ss. 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 prosecution 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.

(3.) Against the order of acquittal, 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 examined the evidence giving undue importance to minor discrepancies. In the view of the High Court the evidence established that in consequence of information received from police-station Vapi, motor-car 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 ss. 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.