NIMESHKUMAR KIRITLAL HAJARIWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr.Chirag B. Patel with learned advocate Mr.B.S. Patel, learned advocate for the applicant and Mr. Manan Mehta, learned APP for the respondent State of Gujarat. Perused the record.

(2.) It is unfortunate that original Record and Proceedings of trial court was not called for in the year 2002 while admitting the appeal when revision is against the order of conviction and, therefore, only in the year 2012, it was pointed out to the court that Record and Proceedings is not called for. But, thereafter, even till 19.1.2017, there was no concrete steps taken by anyone to confirm the availability of Record and Proceedings. Thereupon, by communication dated 8.2017, the Sessions Court, Bharuch has conveyed this Court that Record and Proceedings of criminal case No.1092/1997 has already been destroyed during summer vacation of May June, 2012 as per manual and, therefore, now oral and documentary evidence are not available. Similarly, Record and Proceedings of criminal appeal No.13/2001 was also not available.

(3.) It is undisputed fact that petitioner has been convicted under section 70 of Bombay Prohibition Act in criminal case No.1092/1997 by the learned Judicial Magistrate First Class, Ankleshwar. The prosecution case was to the effect that at the time of raid, black jaggery was found in possession of the petitioner which is not edible and sample was taken and forwarded for analysis wherein it was found that such jaggery was to be used for manufacturing of country made liquor. Therefore, after trial the learned JMFC has awarded sentence of simple imprisonment for period of six months and fine of Rs.1, 000/- and order to destroy the rotten jaggery which was confiscated.