DHIRAJLAL GANDABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Cri. Rev. Application has been filed by the petitionersaccused against the judgment and order dated 24-8-1983 passed by the learned Extra Addl. Sessions Judge, Surat in Cri. Appeal No. 145 of 1982. The petitioneraccused have been prosecuted for the offences punishable under Secs. 65(e), 66(b) read with Sec. 82 of the Bombay Prohibition Act in the Court of the learned Judicial Magistrate (F.C.) Vyara in Criminal Case No. 287 of 1982. The learned Magistrate, after appreciating the evidence led by the prosecution, by his judgment and order dated 5-12-1982, convicted the petitioners-accused for the offence punishable under Secs. 66(b), 65(e) and 81 of the Bombay Prohibition Act and sentenced them to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 500.00 in default of payment of fine, to further undergo rigorous imprisonment for 1 month each for the offence punishable under Sec. 66(b), of the Bombay Prohibition Act, and to suffer rigorous imprisonment for 6 months and to pay a fine of Rs. 500.00, in default of payment of fine, to further undergo rigorous imprisonment for 2 months each for the offence punishable under sec. 65(e) of the Bombay Prohibition Act. The learned against the judgment and order dated 24-8-1983 passed by Extra Addl. Sessions Judge, Surat in Criminal Appeal No. 145 of 1982. Magistrate further ordered that substantive sentence to run concurrently. Being aggrieved by the judgment and other passed by the learned Magistrate, the petitioners-accused preferred appeal being Cri. Appeal No. 145 of 1982 in the Court of the learned Extra Addl. Sessions Judge, Surat, who by his judgment and order dated 24-8-1983, allowed said appeal partly and quashed and set aside the order of conviction and sentence passed against the petitioner-accused for the offence punishable under Sec. 65(e) of the Bombay Prohibition Act and confirmed the order of conviction and sentence passed against the petitionersaccused for the offence punishable under Sec. 66(1)(b) of the Bombay Prohibition Act.

(2.) It is the case of the prosecution that about 420 bottle of Wishkey were seized from the Car bearing No. GJB 3681 by the Uchhal Police on 16-10- 1981 at about 10-00 p.m. at Baldhara Railway Crossing in the presence of the panchas. There bottles were seized in the presence of the panchas but no seal with the signature of the panchas were affixed on the bottles. Muddamal bottles were sealed bottles bearing the mark of manufacturer company. The sample of the bottle was not sent to the Public Analyst for examination. The prosecution relied on the evidence of P.S.I. - complainant. Panchas were examined but they have not supported the case of the prosecution, Complainant for the offences punishable under Sec. 66(b) and Sec. 65(e) read with Sec. 81 of the Bombay Prohibition Act was filed against the petitioners-accused and they came to be tried by the learned Judicial Magistrate (F.C.) Byara, who recorded order of conviction and sentence dated 8-12-1982 as stated above.

(3.) In this Cri. Rev. Application, order of conviction and sentence has been challenged on various grounds. It has been submitted by the learned Counsel for the petitioner-accused that the order or conviction is unsustainable as the order of conviction is based on the presumption under Sec. 116(b) of the Bombay Prohibition Act. It has been further submitted that no such presumption under Sec. 116(b) of the Act is permissible under the law when panchas have not supported the prosecution case. It has been further submitted that the possession of liquor is not proved by the prosecution, as sealed bottles do not bear the signatures of panchas. It has been further submitted that muddamal bottles of liquor were not sent to Public Analyst and that no inquiry was made regarding the company whose labels were found on the bottles.