GORAKH KANHOBA CHAVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. G. B. Chavan for the appellants and learned A. P. P. for the State 1 respondents. The appellants are the original accused Nos. 1, 4 to 7 who were convicted by Special Judge (S. R. Joshi) for the offence under section 66 (1) (b) of the Bombay Prohibition Act and were sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs. 500, in default, further rigorous imprisonment for one month.

(2.) IN fact, all these accused alongwith accused Nos. 2 and 3 were charge sheeted and prosecuted for the offence under section 20 (b) (i) of the N. D. P. S. Act for having found in possession of 8 kilo and 700 grams of Ganja and also in possession of 50 litres of country made liquor. They were also acquitted under the N. D. P. S. Act, but the present appellants were convicted under section 66 (1) (b) of the Bombay Prohibition Act for consumption, using, possession and transportation of any intoxicant.

(3.) I heard Mr. Chavan and learned A. P. P. at length. It was contended by Mr. Chavan that so far as accused/appellant No. 1 is concerned, there is no evidence to show that he was in conscious possession of the liquor that was seized from the bathroom of the house. Mr. Chavan pointed out that as per F. I. R. or panchanama or evidence of P. W. No. 1, the P. S. I. accused No. 1 was found at the entrance of the house, and therefore, conscious possession of the contraband liquor cannot be proved against him. So far as other accused are concerned, it was urged by him that apart from the evidence of P. W. No. 1, the P. S. I. , there was no evidence of any of the witnesses to support the prosecution case because two independent panch witnesses turned hostile and did not support the prosecution and the evidence of P. W. No. 6, the lady constable, accompanying the raiding party, was so vague and it could not consider for any purpose whatsoever. He relied upon three judgments of this Court reported in 1993 (1) Bom. C. R. 153 (Antony Sauri Pillay v. The State of Maharashtra), 1988 Cri. L. J. 1878 (Jeevanchand Baliram Thakur v. State of Goa), and 1995 (1) Bom. C. R. 229 : 1995 (1) Crimes 207 (Mohamad Razzak Pathan and others v. State of Maharashtra), in support of his submissions that unless conscious possession of each of the accused is separately proved by the prosecution, there could not be any conviction.