STATE OF MAHARASHTRA Vs. VISHWANANTH NAMDEO KOLGE

JUDGEMENT

(1.) The respondents 1 and 2 who are husband and wife were tried by the Chief Judicial Magistrate, Osmanabad for and offence under section 66 (a), 66 (i) (b) and 83 (ii) of the Bombay Prohibition Act. It was the case of tbe prosecution that oa December 28, 1973, at 630 a. m. they were found in their house at Keshegon keeping in their possession opium illicit liquor and ganja without permit. It is also alleged against them that they had conspired to commit offences under the Prohibition Act and thus were liable to be punished for the aforesaid offences.

(2.) At the trial, the prosecution examined only two witnessess and they are Head Constable Ghugs and Panch Manohar who were members of the raiding party. Besides them, the Sub-Inspector and many other constables had also taken part in the raid which took place at about 6 a. m December 28, 1973. It is the case of the prosecution that accused Nos. 1 and 2 were present in their house at the time of the raid which resulted in the seizure of the 100 grams of ganja and 50 grams of opium kept in a wooden box and a plastic can contnining liquor. The learned Magistrate held that prosecution has failed to establish that the house belonged to the accused. He further held that in the absence of any such evidence, the mere presence of accused Nos. 1 and 2 in the house could not be sufficient to establish the case against the accused. He also recorded a finding that there was no evidence on record to show that a sample of each property was taken and sent to the Chemical Analyser for his report. In the result, he passed an order aquitting the accused. It is against this order of acquittal that this appeal has been preferred by the State.

(3.) Mr. Parkar, the learned Public Prosecutor, submitted before me that the evidence of the two witnesses clearly estailishes the fact that the two accused were in actual enjoyment of the house. It would, therefore, necessarily follow that the two accused were in possession of the liquor, opium and ganja. Secondly, the prosecution wanted to examine the Sub. Inspector of Police who had carried out the raid as well as another Head Constable Lingappa in support of its case, and the rejection of the application for adjournment to enable the prosecution to examine them has resulted in grave injustice to the prosecution.He,there fore Sumbitted that the matter be remanded to the trial court to give an opportunity to the prosecution to examine these two witnesses. I am unable to see substance in any of these submissions.