BUSTAYAV VITORI FERNANDEZ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) CRIMINAL Appeal No. 1404 of 1973 is filed by the Original Accused No. 1 and CRIMINAL Appeal No. 1405 of 1973 is filed by the Original Accused No. 2 Both the appeals are against the order of the Presidency Magistrate, 16th Court, Ballard Estate, Bombay, in Case No. 255/P of 1973 convicting both of them under section 66(1)(b) of the Bombay Prohibition Act and sentencing each of them to undergo R.I. three months and to pay a fine of Rs. 500/- in default to undergo R.I. for two months. According to the prosecution on 27-11-1972 at about 12-15 p.m. the patrolling personnel consisting of H.C. 4571/X, P.C. 933/X, L.N. 10105/X and P.C. 1872/X-Pralhad Anant Jatiha (P.W. No. 2) while passing in a jeep, noticed a taxi bearing No. MRP. 4663 coming over the fly-over bridge at the Princess Street Corner and going towards east. The patrolling jeep chased the said taxi and intercepted the same nearabout the junction at Parsi Agiary on the Shamaldas Gandhi Road. All the members of the patrolling party got down from the jeep and surrounded the taxi. In the taxi, there were two persons viz. accused Nos. 1 and 2 sitting on front. Accused No. 2 was driving the taxi and accused No. 1 was sitting by his side. The taxi was searched. Nothing was found in the front or the rear compartment of the taxi. Accused No. 2 then opened the dicky and in the dicky two big cans and one small can were found. There was also a rubber bladder in a green cloth bag. The cans and the bladder were opened in the presence of panchas and they were found to contain liquor. The panchas smelt the contents and then from each of the containers, sample of liquor was taken in four bottles in the presence of the panchas. Labels with signatures of the panchas were affixed to all the four bottles as well as to the cans and the bladder. The keys, log book etc. of the taxi as well as the taxi were seized. Along with the taxi, the registration book of the taxi was also seized. Panchanama was then drawn on the spot. Thereafter P.C. No. 1872/X-Jatiha (P.W. No. 2) brought the accused and all the property to the Police Station. There the F.I.R. was recorded as given by Jatiha. Thereafter the sample bottles were sent to the Chemical Analyser and the Chemical Analysers report (Ex. E) was received. The Chemical Analysers report showed that what was seized from the taxi was prohibited alcohol. The accused were thereafter charge-sheeted for an offence under section 66(1)(b) of the Bombay Prohibition Act (hereinafter referred to as the said Act.) At the trial the accused pleaded not guilty. It was the case of accused No. 1 that he had engaged the taxi at Maratha Mandir and was going towards Dhobi Talao side. At Swastik Cinema, accused No. 2 overtook a jeep in which the patrolling was travelling from, the left side. The taxi brushed the jeep and therefore there was a quarrel between the taxi driver and the Police. He intervened and asked them not to quarrel and then both he and the taxi driver were taken to the Police Station. He denied that any contraband was carried in the dicky of the taxi or that anything was seized as alleged by the prosecution. He also denied that any panchanama was drawn on the spot. He also denied any knowledge about the contraband. In short, it was his case that he was merely a passenger in the taxi. The defence of accused No. 2 was also of a total denial. He gave the same story as accused No. 1 with regard to the quarrel between the Police and himself and how they were taken to the Police Station on account of the said quarrel. He also denied any knowledge of the contraband as well as the prosecution case that the contraband was seized from the taxi. He further denied that the panchanama was drawn on the spot as alleged. The defence examined two witnesses on their behalf. Both of them are members of the Police force. One is Vichare, L.N. No. 12156/C and the other is Uttekar, P.C. No. 4554/C. These two witnesses deposed that a message was received at the Lamington Road Police Station at about 2-05 p.m. on the date of the incident i.e. on 27-11-1972 requiring P.C. No. 933/X who was a member of the patrolling party to report to the Karwar Street Police Station. On behalf of the prosecution, the prosecution examined P.C. Jatiha (P.W. No. 2) who gave the F.I.R., panch Ganeshsing Dadusing (P.W. No. 1) to prove the panchanama drawn on the spot which is Ex.C. on record and P.S.I. Marathe (P.W. No. 3) who had come to the spot after the taxi was intercepted and who recorded the panchanama (Ex. C) and carried on the investigation. Rejecting the defence and accepting the prosecution evidence the learned Magistrate came to the conclusion that the accused possessed prohibited alcohol as alleged by the prosecution on 27-11-1972 in the taxi in which the alcohol was being carried and convicted both the accused under section 66 (1)(b) of the said Act and sentenced them as stated earlier by his order dated 23-10-1973. It is against the said order that these two separate appeals have been filed by the two accused. Since the facts and that decision giving rise to both the appeals are the same, I propose to dispose of both the appeals by this common judgement. Both Mr. Pathmudi appearing for accused No. 1 and Mr. Sabnis appearing for accused No. 2 have raised common questions of law and fact. In addition to the contentions raised on behalf of accused No. 2, Mr. Pathmudi appearing for accused No. 1 has also raised a contention that there is no evidence led by the prosecution to show that accused No. 1 was other than a passenger in the taxi. I will deal with this contention in the end. For the sake of convenience, I will first deal with the contentions which are common to both the appeals. The first contention raised on behalf of the appellants is that even assuming that all the allegations made by the prosecution are true with regard to the seizure of the three cans and the bladder in the dicky of the taxi in question, the prosecution has not proved by sufficient and reliable evidence that what was seized was the contraband alcohol. For this purpose it was urged that the seizure is alleged to have taken place on 27-11-1972 and as is evident from the Chemical Analysers letter accompanying the report which is Ex. E on record, the said sample bottles were not sent to him till 12-12-1972. There was thus delay of no less than 15 days between the seizure and the despatch of the sample bottles. There is no explanation given by the prosecution as to why so much time was lost in sending the said samples. The prosecution has, further, not examined the person in whose custody the said bottles were kept and even otherwise there is nothing on record to show as to how the said bottles were preserved protected. What is more, the process by which the said bottles were sent to the Chemical Analyser, has also not been proved by the prosecution. In the circumstances there is nothing to show that the bottles in connection with which the Chemical Analysers report was received are the same bottles which were seized from the accused, as contended by the prosecution. In the absence or such evidence it is not possible to say that the contents which were collected, at the time of the seizure, in the sample bottles, were the same which the same which were sent to the Chemical Analyser and that his report (Ex. E) pertains to it. In support of their said contention, a number of unreported decisions of this Court were cited before me holding that want of evidence to link up the samples which were collected with the samples which were tested by the Chemical Analyser, creates a fatal lacuna in the prosecution case, and the said lacuna entitles the accused to a benefit of doubt. Mrs. Shenoy, the learned Public Prosecutor appearing for the State while not disputing that the prosecution had not examined the person in whose custody the bottles were lying from the date of seizure, and the person who had actually sent the said bottles to the Chemical Analyser and had not proved the process by which it was sent, contended that the Chemical Analysers report (Ex. E) shows that under letter bearing No. 9797 dated 12-12-1972, four sealed bottles were received from the Inspector of Police, S.P.S.X Division, Karwar Street, Bombay. The report further mentions that the bottles had their seals perfect and bore the label "S.P.S.C.R. No. 1078/72." According to her, this conclusively proves that the bottles in which the sample was collected were the same bottles which were sent to the Chemical Analyser. She argued that the number on the labels viz. S.P.S.C.R. No. 1078/72 was the crime register number of the case. This is evident from F.I.R. which is Ex. D. on record. She therefore submitted that it was not further necessary to examine the person who either kept the bottles or sent the bottles to the Chemical Analyser. This argument advanced on behalf of the State however presumes that the number written on the labels viz. S.P.S.C.R. No. 1078/72 was so put on the sealed bottles at the time the panchanama was made and in the presence of the panchas. Neither the panchanama nor the evidence of the panch however show that any such number was put on the labels of the bottles which were sealed at that time. In fact no such number could have been put at that time if the prosecution evidence that the panchanama was made on the spot is to be accepted. The said number could be found only with reference to the crime register which was in the Police Station and in fact was put only after the said panchanama was drawn and before the bottles were sent to the Chemical Analyser. The exact point of that when this number was written on the labels of the bottles is however unknown. It maybe any time between the time the contraband was seized on 27-11-1972 and the bottles were sent to the Chemical Analyser on 12-12-1972. I am therefore unable to accept the contention advanced on behalf of the State that the number mentioned on the labels of the bottles as reproduced in the Chemical Analysers report (Ex. E) on record was a sufficient proof of the fact that the very contents which were seized were sent to the Chemical Analyser, and no further proof is necessary. In this connection, it should be noted further, that the letter by which the sample bottles were sent has also not been produced by the prosecution. In the absence of the said letter and in the absence of the evidence of the person sending the said letter, it cannot be said that the prosecution conclusively proved that the bottles containing the sample of the contraband seized were the very bottles which were given by the said No. C.R. No. 1078/72 by the person despatching the said letter and the said bottles. It may very well be, in the absence of the evidence of such person, that the person despatching the said letter and the said bottles might have sent some other bottles which have no connection with the present case. It must be remembered that the only thing that the Chemical Analysers report (Ex. E.) on record mentions and on which the prosecution as relied to connect the contents collected with those examined is that the bottles sent with the letter were received with the seals perfect and with the labels bearing a particular number. There is nothing in this report to show that the seals bore the signature of any particular person or persons much less of the panchas who signed the panchanama in the present case. Therefore it cannot be said with any amount of certainty that the bottles contained the samples which were collected in the present case and none else. I therefore find that there is great force in the submission advanced on behalf of the defence that in the absence of the evidence of the person who sent the sealed bottle to the Chemical Analyser, the samples collected cannot be connected with the samples analysed by the Chemical Analyser as per his report (Ex. E.). The admitted delay in sending the sample bottles to the Chemical Analyser after they were seized, further reinforces the said defence contention. The delay was of no less than 15 days and as pointed out earlier., neither an explanation for the said delay has come forward from the prosecution nor is there any evidence to show as to in what manner and in whose custody is said sealed bottles were kept during the said period. The defence is entitled to argue that this delay did create an opportunity for tampering with the said bottles. In view of the fact that the only persons other than the Police whose signatures the seals of the bottles bore, were the panchas, who were admittedly brought by the Police, it could not be said with certainty, that the bottles were not tampered with. In the present case, the defence has successfully brought on record that the panch Dadusing (P.W. No. 1) who is the only panch examined by the prosecution out of the two panchas who have signed the panchanama, was a professional panch engaged by the prosecution in no less than four earlier other cases. In view of this fact, it is difficult to say that the apprehension entertained by the defence in that behalf is altogether baseless. In any case, the defence is entitled to urge that this additional circumstance viz., that one of the panchas was a professional panch (and who alone was examined on behalf of the prosecution), cannot be ignored, in the circumstances of the case, while considering their contention, that the prosecution has not beyond reasonable doubt proved that what was seized from the custody of the accused was nothing but the contraband prohibited by the said Act. I am therefore of the view for the reasons stated above, that there is a serious lacuna in the prosecution evidence connecting the sample collected from the accused with that tested by the Chemical Analyser and hence the accused are entitled to a benefit of doubt on that account. The second contention advanced on behalf of the defence relates to the discrepancy in the evidence with regard to the place where the panchanama (Ex. C) was drawn. It is urged on behalf of the defence that apart from the contradictions in the evidence of different prosecution witnesses, there is intrinsic evidence in the panchanama itself to show that it was not drawn at the spot but was drawn at the Police Station. The panchanama among other things state that after the seizure of the contraband, sample of 0.380 litres of illicit liquor from the contraband was collected into dry clean and empty bottles. It further recites that the contraband which was seized was stored as follows:---(1) One white plastic can containing about 20 litres, (2) one white plastic can containing about 20 litres, (3) one small grey colour plastic can containing 4.55 litres and (4) one rubber bladder containing 13.65 litres. In the first instance there is no evidence to show that either the bottles in which the sample was collected or any measure to measure the quantity of the liquor was carried by the patrolling party with it, or after the seizure, it was secured from any source. Neither the panchanama nor the panch nor the other prosecution witnesses examined on the point refer to any such bottles or measure being carried or secured for the purpose. Secondly, neither the panchanama recites nor the panch in his evidence in Court depose to the fact as to how the quantum of liquor in the cans and the rubber bladder seized or in the sample bottles in which it was collected, was measured and how the exact quantum came to be mentioned in the panchanama. It must be remembered in this connection that the F.I.R. which is Ex. D. on record and which is registered at 2-00 p.m. admittedly at the Police Station, mentions the total quantity of the contraband seized as 58.20 litres which tallies to the exact point with the quantum of liquor seized as mentioned in the panchanama. Apart from this, there are also obvious contradictions in the evidence of the panch and P.S.I. Marathe on the point of the exact place where the panchanama was drawn. Panch Dadusing (P.W. No. 1) has stated in his deposition, in answers to the questions put in cross-examination, that the panchanama was written on the footpath by the side of the taxi and there was a Chandan shop at some distance behind the place where the taxi was stationery. The entire prosecution case further is that the taxi was intercepted near the Parsi Agiary and the footpath which the panch is referring to as the footpath of the Parsi Agiary. However, P. S. I. Marathe (P.W. No. 3) has stated in his deposition that the panchanama was drawn on the footpath near the Parsi Dairy and he drew it sitting on the said footpath. Admittedly, the Parsi Dairy is on the opposite side of the Parsi Agiary, with the road intervening between the footpath of the Parsi Agiary and the footpath of the Parsi Diary. In the circumstances of the case, these contradictions in the evidence of the panch and the P.S.I. cannot be brushed aside lightly, because it must be remembered that it has been consistently suggested to all the prosecution witnesses that the panchanama was not drawn on the spot but the same was drawn at the Police Station. The inherent infirmity earlier pointed out in the panchanama itself reinforces this defence case when taken together with the aforesaid contradictions. It cannot therefore be said that this contention raised on behalf of the defence in that behalf is without substance and significance. The third contention raised on behalf of the defence is that there is no independent witness examined in the present case and the panch Dadusing (P.W. No. 1) being a professional panch, his evidence cannot be relied on. In this connection it was pointed out on behalf of the defence that an application was made to the learned Magistrate to recall the said panch witness for cross-examination in order to confront him with the fact that he had acted as a panch in some cases on behalf of the prosecution, prior to the present case. This application was rejected by the learned Magistrate on 25-9-1973. However, the order made below the said application gave liberty to the defence to produce the certified copies of the panchnamas where this panch had acted as a panch. In pursuance of that, certified copies of the panchanmas where the said panch had acted as a panch on behalf of the Police were produced by the defence and the said copies are at Exhibits Nos. 4 to 7 on record. These copies give the name of the panch as well as the address which are the same as that of the present panch. In view of the fact that it was not disputed at the trial stage that the present panch was the same panch who had acted as a panch in cases in respect of which the certified copies of the panchanamas were produced and in view of the further fact that the learned Magistrate has also recorded a finding that it was true that the said panch had acted in some cases earlier as a panch on behalf of the Police, it cannot be doubted that the panch was, what the defence terms a professional panch. Mrs. Shenoy appearing for the State, at first raised a contention with regard to the identity of the panch who had acted as a panch in the cases in respect of which the certified copies of the panchnama have been produced; but later on gave up the said contention when she was confronted with the aforesaid facts. One thing therefore that emerges on the basis of the said evidence is that the panch could not be said to be an independent witness in view of the fact that he has been acting as a panch on behalf of the Police. Mr. Sabnis for accused No. 2 also wanted to point out certain other facts emerging out of the entry Ex. No. 3 which is the message given by the Karwar Street Police Station to the Lamington Road Police Station at 2.05. P.M. on the date of the incident, which message purported to ask P.C. No. 933 to remain present at the Karwar Street Police Station. It was Mr. Sabniss contention that the panch who was admittedly residing and carrying on business nearabout the Lamington Road Police Station, was to be secured with the help of P.C. 933 for the purpose of drawing the panchanama in question and it is only after the said message was received by P.C. 933 that the said P.C. brought the said panch to the Police Station for drawing the said panchanama. There is no doubt that Ex. 3 which is the message received from the Karwar Street Police Station by the Lamington Road Police Station at 2.05 p.m. on the said date does require P.C. 933 to remain present at the Karwar Street Police Station. It is however not possible to jump to the conclusion from the said message that the P.C. was required to bring with him panch Dadusing to the Karwar Street Police Station because beyond giving the direction to P.C. 933 to remain present at the Karwar Street Police Station, the message does not state anything more. One thing however emerges out of this entry (Ex. 3) and it is that at 2.05 p.m. on the said date, P.C.No. 933 was not at the Karwar Street Police Station, but was either at the Lamington Road Police Station or at some place other than the Karwar Street Police Station. The evidence of Jathis (P.W. No. 2) and P.S.I. Marathe (P.W. No. 3) however shows that P.C.No. 933 was a member of the patrolling party which had seized the contraband at about 12-15 p.m. on the date of the incident. Their evidence also shows that the said P.C. had accompanied them to the Police Station when the entire party reached there at 2-00 p.m. on that day. It is therefore difficult to resolve the mystery of the said message (Ex. 3) with the said evidence of the two prosecution witnesses. It has been strenuously argued on behalf of the accused that this shows that the said P.C. No. 933 was not a member of the patrolling party at all. In view of the fact that there is no explanation lending to the resolution of this mystery advanced on behalf of the prosecution, it cannot be said that the said contention raised on behalf of the defence, again, is without force. For all the aforesaid reasons, I am of the view that there are serious loop-holes and contradictions in the prosecution evidence and the accused are entitled to a benefit of doubt on account of the same. Apart from this, as far as the case against accused No. 1 in CRIMINAL Appeal No. 1404 of 1973 is concerned, there is nothing in the prosecution evidence to show that accused No. 1 was other than a mere passenger in the taxi. The prosecution has proceeded on the basis that both accused Nos. 1 and 2 were connected with the possession of the contraband liquor. This is on the footing that they both were either owners or had some interest in the said contraband. It has been the case of accused No. 1 consistently that he had engaged the taxi in question at Maratha Mandir, and was proceeded towards Dhobi Talao as such he was merely a passenger in the taxi and knew nothing about the contraband in the same. The prosecution has not led any evidence except the common evidence against accused Nos. 1 and 2 on the footing that the contraband in the taxi belonged to both accused Nos.. 1 and 2, to show that accused No. 1 had any connection with the contraband or that he knew that there was contraband in the said taxi. In view of this lacuna in the prosecution evidence it cannot be said that the prosecution has proved that accused No. 1 knew that there was contraband in the taxi or that he was other than a mere passenger in the same. For this reason also, accused No. 1 is entitled to acquittal. In the result, I am of the view that both accused Nos. 1 and 2 are entitled to the benefit of doubt and therefore to an acquittal. I therefore allow the appeals, set aside the convictions as well as the sentences of both the accused and acquit them. Fine, if paid by them to be refunded to them. The bail bonds of the accused to be cancelled. The order of confiscation of the taxi is also hereby set aside and bond on which accused No. 2 is now running the said taxi should be deemed to have been cancelled forthwith. Before parting with this case, I cannot help observing that there is a serious lacuna in the procedure followed by the investigating machinery in collecting samples from the contraband which they seize in such cases. It is neither a happy nor a creditable spectacle that the prosecution should be set at naught on the ground that the proper procedure in collecting samples and sending the same to the Chemical Analyser was not followed. There is no reason why a procedure similar to the one laid down under the Prevention of Food Adulteration Act, 1954 and the Rules made thereunder should not be followed in cases under the present Act as well. It is not as if this question has cropped up for the first time before this Court and in this case. In fact, many of the prosecution cases have floundered on this rock in this past. If not earlier, at least as far back as 1967 this lacuna was pointed out by this Court in similar cases under this Act. It is not understood why no attempt has been made so far to remedy the said lacuna. It is hoped that the authorities concerned will atleast now wake up to the need for laying down a suitable procedure in the matter, which will safeguard the interests both of the prosecution and the accused and save avoidable waste of public money and time. I direct that a copy of these observations be sent to the Law and Judiciary and Remembrance of Legal Affairs, for such action as they may deem necessary.