VISHWANATH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the Judgement passed in the criminal revision application filed by the appellant before the High Court of Bombay at Aurangabad. The appellant was found guilty of offence punishable u/s. 66(1)(b) of the Bombay Prohibition Act (for short "the Act") and was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500.00, in default simple imprisonment for 15 days by the IIIrd Joint Judicial Magistrate, FC, Nanded. The appellant preferred an appeal before the Sessions Court and challenged his conviction and sentence but the appeal was dismissed and he unsuccessfully challenged his conviction and sentence in the revision filed before the High Court. It is against this the present appeal arose.

(2.) The case against the appellant was that he was found to be in possession of 13 bottles of illicit liquor and one tin containing liquid. The flying squad of the Excise Department during patrolling found the appellant with this illicit liquor and the excise party recovered the bottles and the tin under a panchnama which was attested by two witnesses. Samples were taken from the 13 bottles in a single bottle and it was sent for chemical analysis. Ext. P-10, the chemical analyst's report showed that articles sent for analysis contained 43% ethyl alcohol. The appellant was prosecuted under the provisions of the Act.

(3.) We have heard learned Senior Counsel for the appellant and also learned counsel for the respondent. Counsel for the appellant contended that the samples were taken from all the 13 bottles and were mixed and sent to the laboratory in one single bottle and therefore, it is not clear whether all the bottles contained alcohol or any other substance. It was also submitted that the quantity of alcohol alleged to have been in the possession of the appellant was not stated in the panchnama and there is nothing in evidence to show that the appellant was in possession of the quantity over and above the quantity prescribed under the notification issued u/s. 14-B of the Bombay Abkari Act, 1878 . The counsel for the State submitted that the State Government has in fact issued the notification u/s. 14-B of the Bombay Act prescribing the quantity which a person can keep in his possession without any licence or permit. We are told that up to 5 litres of liquor a person can keep in his possession without any licence or permit. There is no evidence to show that the quantity of alcohol that was seized from the possession of the appellant is more than 5 litres. Therefore, the conviction of the appellant u/s. 66(1)(b) is not sustainable. Unfortunately, either the High Court or the appellate court or the trial court did not advert to this point and based the conviction on Exhibit P-10 certificate. There is also no evidence to show that whether all the 13 bottles contained alcoholic substance. In view of the above reasoning, the conviction of the appellant u/s. 66(1)(b) of the Act is not sustainable.