DATTUDAGA UDAMALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant has been convicted of the offence under sec. 66 (1) (b) of the Bombay Prohibition Act. for having found in possession of liquor, on September 29, 1975, at a S. T. Bus stand situate at Nandurbar town. The applicant has been acquitted of the other charges which related to the consumption of liquor.

(2.) Mr. Karlekar strenuously argued that the finding that the accused was in possession of the liquor has not been satisfactorily supported by the evidence on record. He contends that the panchanama Exh 9 was in fact made in the police station though the prosecution case was that the accused was apprehended at the S. T. Bus stand there is no panchanama at that place. The two panchas PW 2 Ahire and PW 3 Sujeet Kumar are not independent witnesses, for the fitst has turned hostile and second on his own admission isa professional witness and there is no independent evidence in support of the panchanama. The learned counsel submits that there is undue delay in sending the liquor bottal for analysis, in that Exh. 13 shows that the bottle was received in the office of the Analyser on 6-5-1976 i. e. after about 8 months. No explanation has been given by the prosecution and, therefore, the benefit of this posision should go to the accused According to the learned counsel this is a case where there is miscarriage of justice.

(3.) Now all the submissions are really not available to the learned counsel, particularly because the concurrent findings are based on appreciation of evidence as to the fact that the accused was carrying a satchel containing two bottales. Apart from the panchanama there is evidence of PW 1 Shastri to the effect that the accused was possessing one bag, police had taken charge of, and in the presence of the panchas from the bag some cash & two bottles of liquor were seized. The entire cross examination of Shastri does not show that Shastri had any axe to grind against the accused. This aspect of Shastri's evidence has not been seriously questioned and that shows that from the possession of the accused two bottles of liquor were taken charge of by the police Whatever may be the quality of the two panch witnesses, the evidence of the police Head Constable Kalal has remained unshaken that the two bottles were seized from the accused and he drew the panchanama as per Exh. 9. Oniy because the witnesses turned hostile or are shown to be of a low credibility it does not follow that the evidence of police witnesses is worthless. As stated above, the evidence of Head Constable Kalal is further supported by independant evidence of Shastri who appears to be a responsible officer keeping the post of Assistant Traffic Superintendent. The complaint of the learned counsel therefore, that the defect of making the panchanama at the police station and having particular type of witnesses like PW 2 Ahire and PW 3 Sujeetkumar does not affect the validiry of the prosecution case and finding recorded by the two courts below are perfectly justified. As to other aspect which is seriously questioned it is enough to observe that the evidence of Head Constable Kalal and police constable Rupchand is to the effect that from the bottles which were taken charge of under panchanama Exh. 9 one bottle was sent for analysis. No doubt in the report at Exh. 13 the date of receipt Is shown as 6-5-1976 but no questions are asked to Head Constable Kalal or to police constable Rupchand as to how that bottle was kept in the police station till it was sent to the office of the Chemical Analyser. Only because there is apparent delay of eight months that by itself would not vitiate the report Exh. 13 nor would further destory the testimony of Kalal or Rupchand. Thirdly the witnesses were available for cross-examination and the accused did not on this aspect cross-examine the witnesses. Thus both the submissions of the learned counsel with regard to the conviction of the accused and the findings recorded by the two courts below cannot be interfered with.