STATE OF GUJARAT Vs. BHIMABHAI KALIDAS PATEL

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 9/01/1981 passed by the Sessions Judge Valsad at Navsari in Criminal Appeal No. 58 of 1980 whereunder the order of conviction and sentence dated 30/09/1980 passed by the Chief Judicial Magistrate Valsad at Navsari in Summary Case No. 77 of 1980 was set aside. The conviction was under sec. 66(1)(b) of the Bombay Prohibition Act 1949 and the sentence imposed was R.i. for three months and a fine of Rs. 500 in default R.I. for one month.

(2.) The short facts are that P. S. I. Joshi with about 7 persons was on patrolling duty on 7/07/1978 at about 6.35 A.M. For the said purpose they had started from Navsari. When they were near Boriach Village on National Highway No. 8 the accused was coming on the road with a gunny bag. Because it was suspected that an offence may have been committed the accused was stopped and it was found that he had in the said gunny bag along with photo frames 21 bottles of liquor of various types. Out of the same three bottles were taken out as samples At that time Rs. 490 were also found on the person of the deceased (sic accused). The said bottles and the said sum of Rs. 490 were seized. A complaint was lodged in that connection which had ultimately ended in acquittal as stated above. Hence the present appeal at the instance of the State.

(3.) In support of the case only P. S. I. Joshi was examined at the trial. The complaint given by him is at Exhibit 8. The short notes of the evidence are at Exhibit 6. In his evidence P. S. I. Joshi has stated that on 7/07/1978 he was serving as a P. S. I. in District Rajkot (sic Valsad) that on the National Highway near village Boriach accused was found to have a gunny bag in which there were 21 brandy bottles that on search it was found that he had on his person Rs. 490/. that the bottles contained seal of the company that the price of the bottles was of about Rs. 300.00 to Rs. 350/ and that the accused was the same who was present in the Court. In his cross examination he has stated that when the accused was arrested no truck was standing near him that no driver was arrested in connection with the case that the accused was coming towards them walking that on seeing them he attempted to run but was caught that some of the persons were in uniform and some were not that there were no persons near the place where the accused was arrested because it was national highway that no attempt was made by them to call any panch and that he the search on the accused Rs. 490 were found which were seized. It is to be notice that nowhere in his evidence P S I. Joshi has stated that the bottles were the same which were seized at the aforesaid time and place. Except stating that the bottles were having the seal of the company no other particulars regarding the bottles have been given by him in his evidence. In his evidence P. S. I. Joshi has not stated the name of the manufacturer or manufacturers concerning the bottles which were seized. For that matter even in the rojkam Exhibit 7 the name or the names of the manufacturers of the said bottles have not been stated though in the rojkam the names of different brands of liquor have been stated.