YELLAPPA SHESHAPPA PUJARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal filed by the accused against the order passed by the learned Presidency Magistrate, 15th Court, Mazgaon, Bombay, convicting the accused under section 66(1)(b) of the Bombay Prohibition Act. The short facts are that on 9th October, 1970 at about 2-30 p.m., the accused was accosted by a Traffic Police Sub-Inspector and the Constable while carrying in the car 23 tins of liquor, two tins on the front seat and 6 tins on the rear seat and 15 tins in the dicky, after being followed by a wireless van. The said articles were taken charge of and samples were sent to the Chemical Analyser, after taken certain quantities therefrom in three bottles and sealing them. After receipt of the Chemical Analysers report, a prosecution was launched and the accused was charged for offence under section 66(1)(b) of the Bombay Prohibition Act. The accused pleaded not guilty to the charge. He denied that he was driving the car or that the police van was following him or that any incriminating article was found with him. The prosecution examined three witnesses, being Haribhau Bhimji (P.W. 1), Police Sub-Inspector Tawade (P.W. 2) and Police Constable Atmaram Rajaram (P.W. 3). Admittedly the Panch Haribhau Bhimji (P.W. 1) did not support the prosecution. The only evidence that was found to be reliable by the learned Magistrate was the evidence of the Sub-Inspector Tawade (P.W. 2) who was the Inspector from the Traffic Department, and Police Constable Atmaram Rajaram (P.W. 3). The Chemical Analysers report which was produced before the Court showed that on analysing the sample sent to him he could that the said samples contained 34%,30% and 27% v/v of ethyl alcohol respectively in water and that no recognizable medicinal ingredient was detected in them. Relying on the said evidence, the learned Magistrate convicted the accused of the charge under section 66(1)(b) of the Bombay Prohibition Act and sentenced him as above. Against the said order, this appeal has been filed by the accused. The learned Counsel for the accused had contended that even if one relied on the evidence of the Police Sub-Inspector Tawade (P.W. 2) and Police Constable Atmaram Rajaram (P.W. 3), the same would not show that the samples sent to the Chemical Analyser were proper as the Panch Haribhau (P.W. 1) has denied having taken the samples or put the seals and labels on those samples. In the present case that contention appears to have some substance as it is difficult to see what samples were sent to the Chemical Analyser and analysed by him. Apart from that, one important contention that has been raised by the learned Counsel for the accused is that even if the contents of the sample were fould to be one as fould by the Chemical Analyser, still the prosecution has not proved the charge against the accused. The relevant part of section 66(1) provides :