STATE OF GUJARAT Vs. BHUPATBHAI MULJIBHAI

JUDGEMENT

(1.) This appeal by the State of Gujarat is directed against the impugned judgment and order dated 15-9-1987, rendered in Summary Case No. 546 of 1986, by the learned J.M.F.C., Botad wherein two respondents, namely Bhupatbhai Muljibhai and one another, who came to be tried for the alleged offence punishable under Section 70-A of the Bombay Prohibition Act, 1949, were ordered to be acquitted in the midst of the trial on the short ground of prosecution not examining the complainant.

(2.) The prosecution case as per the complaint filed by Mr. D.B. Zala, PSI, Prohibition Squad, Bhavnagar, was to the effect that on 13.10.1985 at 00.15 hours when he alongwith his staff was patrolling the Rajkot-Surendranagar road to prevent illegal transportation of molasis. on seeing a Truck bearing No. GZX-8114 coming, stopped it. The same was found to be driven by Koli Bhupatbhai Muljibhai with Maganbhai Kanjibhai as a cleaner on it. On taking out search of the said truck, 400 tins of molasis, in all valuing at Rs. 1,90,002/- were recovered, and seized in the presence of two Panchas, namely Yusufali Suvalibhai (PW-1, Exh. 9) and Bhura Kanji (PW-2, Exh-11) under Panchnama (Exh-10) as they had neither any pass nor permit nor any explanation to offer regarding the possession of the same. On the basis of these facts, PSI Zala filed a complaint before PSO Palival for the alleged offence punishable under Section 70-A of the Prohibition Act, wherein after the investigation was over, the respondents came to be chargesheeted to stand trial before the learned J.M.F.C., Botad.

(3.) At trial the respondents pleaded not guilty and claimed to be tried. Thereafter, during the course of trial, two Panch witnesses who came to be examined did not support the prosecution and ultimately, the learned Magistrate acquitted both the accused on the short ground that despite several opportunities given to the prosecution, it failed to examine the complainant to substantiate the allegations made in the complaint, giving rise to the present appeal.