JUDGMENT - V. S. KOTWAL, J :---On July 1, 1976 at noon time P.S.I. Nawle attached to Mulund Police Station was on patrol duty in the company of his staff members. He spotted the petitioner near a building known as Shanti Bhuvan at Mulund and at that time he was carrying a plastic can. As the movements raised a suspicion in the mind of the Police Officers, the petitioner was apprehended and the can was attached in the presence of panch witnesses and it transpired that the can contained about 10 litres of illict liquor. Sample was taken in a bottle and it was forwarded to the Chemical Analyser who certified that it contained 20% v/v of ethyl alcohol in water. On these allegations the petitioner was charge-sheeted in the Court of the metropolitan Magistrate, 27th Court, Mulund, in Case No. 720/P/76 for the offence under section 66(1)(b) of the Bombay Prohibition Act. 2. Denying adverse allegations, the accused contended that he was innocent and was not found with any contraband article and that the same might have been foisted or planted on him. 3. The learned trial Magistrate accepted the prosecution evidence and held the petitioner guilty of the said offence and by his order dated November 26, 1976, convicted him of the same and sentenced him to suffer R.I. for three months and to pay a fine of Rs. 500/- in default further R.I. for six months. 4. The petitioner carried Criminal Appeal No. 8 of 1977 in the Sessions Court for Greater Bombay when the same came to be dismissed on January 9, 1980 and that order is being impugned in this petition. 5. Shri Markande, the learned Counsel for the petitioner, has taken me through the entire record and, according to him, several important features are not considered by both the courts below and, therefore, contends the learned Counsel, interference is called for even in revisional jurisdiction. 6. 5. Shri Markande, the learned Counsel for the petitioner, has taken me through the entire record and, according to him, several important features are not considered by both the courts below and, therefore, contends the learned Counsel, interference is called for even in revisional jurisdiction. 6. In support of its case, the prosecution mainly relied on the evidence of the complainant, Police Head Constable Bhosale (P.W. 2) who is sought to be supported by his complaint, Exhibit I, and the evidence of panch Ashok Ahir (P.W. 1) who has proved the Panchanama, Exhibit A. The defence examined one Govind Ashire who claimed to be the other panch as being the signatory to the panchnama, Exhibit A. The learned trial Magistrate was pleased to accept the evidence of the complainant and panch Ashok and in so far as the defence witness is concerned, he recorded a finding that the complainant has stated on oath when the panch was shown to him in Court that he was not the person who acted as the other panch and, therefore, the trial Magistrate was pleased to disbelieve the said defence witness. The complainant has stated that at about mid-day he was in the company of P.S.I. Nawle and he noticed suspicious movements of the petitioner when he was near the building Shanti Bhuvan at Mulund. The can that was in possession of the accused was attached under the panchnama and liquor was taken in bottle which was forwarded to the Chemical Analyser whose report is at Exhibit E. The panch, no doubt, prima facie supported the complainants case and stated that in his presence the can from the possession of the accused was attached and he has proved the panchnama Exhibit A. 7. However, on a careful scrutiny of the entire evidence, in my opinion, it would be rather risky to accept the same for resting the conviction and unfortunately both the courts below have not considered some material aspects. In the first instance, it is the contention of the accused right from the inception of the trial and which was reiterated at the appellate stage that the can which is claimed to be the muddemal object in this case has not been produced though an absolutely different article came to be tendered at the trial in evidence. Suggestion to that behalf is clearly made to the witnesses. Suggestion to that behalf is clearly made to the witnesses. The more important feature, however, is reflected after the matter had gone in appeal in the Sessions Court. At the stage of the admission of the appeal, an application was tendered on behalf of the petitioner wherein it was specifically mentioned to call for the muddemal object as this was one of the main points canvassed in the appeal. The learned Additional Sessions Judge, while admitting the appeal, made a specific order under which the muddemal was sent for. It is, thereafter, that the record of the learned Magistrates Court reveals that only documents came to be forwarded to the Sessions Court whereas the sample bottle and the can which is the muddemal object at Exhibit B were not forwarded. In so far as these two objects are concerned, there is no endorsement to the effect that these articles are with the police and, therefore, they are not sent. I am really surprised at this endorsement made by the concerned clerk especially when there is a clear order from the Appellate Court that the muddemal objects shall be forwarded to the Appellate Court. This is hardly an excuse to say that the muddemal objects are lying in the Police Station. The order of the lower Appellate Court, therefore, was obviously not complied with by the trial Magistrate and unfortunate part of it is that nobody has brought this to the notice of the learned Additional Sessions Judge, as is apparent from the fact that the learned Counsel for the appellant as well as the appellant were both absent at the time of hearing of the appeal. In spite of all this, the fact remains that the muddemal objects were not forwarded and were not before the Session Court in spite of the specific order passed earlier and also in spite of a clear point made out in the Appeal Memo that a wrong can has been substituted and according to the defence contention, even the capacity of the can would have exposed the falsity of the prosecution. In view of this State of affairs, the contention raised on behalf of the petitioner cannot be given in the absence of adequate material. In any event, the matter is not free from doubt. 8. In view of this State of affairs, the contention raised on behalf of the petitioner cannot be given in the absence of adequate material. In any event, the matter is not free from doubt. 8. Apart from this, the matter can be disposed of on other grounds and, therefore, on purpose would be achieved by remanding the matter on that count. P.S.I. Nawle, who was heading the raiding party, has not been examined in this case. According to the complainant it is not as if that there was a prior informations and, therefore, the accused was apprehended per chance. The complainant has stated that after the accused was accosted and was questioned and after having realised that he was unable to give satisfactory answers that the panchas were called and it is thereafter that the panchnama was drawn and the can was attached. The panch witness has also stated that when he was called by the police, the accused was already apprehended near Shanti Bhuvan and was possessing the can. In spite of this, we find that in the panchnama, Exh. A, it is mentioned as if every thing has happened in the presence of panch witnesses and it is further manifest that some features which had occurred even before the arrival of panchas have been incorporated in the panchnama. This, in my opinion, would go a long way to justify the submission of Shri Markande that the panchnama cannot be implicitly relied upon. The panch has initially stated that he was in service at Wagle Estate, though he could not produce any document in respect thereof. Naturally he was confronted as to how he could happen to be at the spot if is was a working day and, thereafter, can a very covenant reply that he was on leace on the date of the incident. The witness, however, realized the potential danger as the defence would have then called for the record and, therefore, he immediately changed the position and stated that on that day he was in the third shift. This prevarication on the part of the witness is a telling circumstance against his credibility. 9. The matter, however, does not rest there and there is a still further serious infirmity in the prosecution evidence. According to the prosecution case, sample was taken in the bottle and it was this bottle that was carried to the Chemical Analyser. This prevarication on the part of the witness is a telling circumstance against his credibility. 9. The matter, however, does not rest there and there is a still further serious infirmity in the prosecution evidence. According to the prosecution case, sample was taken in the bottle and it was this bottle that was carried to the Chemical Analyser. Significantly the carrier has not been examined and no explanation has been tendered in that behalf. If is further important to note that the can is alleged to have been attached on 1st of July, 1976 whereas the sample was forwarded to the Chemical Analyser under the covering letter by P.I. on August 21, 1976 and there is absolutely no explanation for this delay. No evidence has been adduced to show as to where the bottle was lying for all these days and no one from the Police Station has also been examined. The forwarding letter has also not been tendered in Court and in fact the complainant has no personal knowledge as to how and when the bottle was forwarded to the Chemical Analyser. All these points remains unanswered by the prosecution. 10. Then we have the last stroke. The complainant has admitted in clear terms that the label that is affixed on the can, which was produced in Court, did not bear any case number or any C.R. Number. The panch Ashok (P.W. 1) has also admitted that the label on the can that was shown to him in Court was torn to some extent. A combined reading of these two admissions would make it clear that in the first instance, the can that was produced in Court did not bear a label in its complete form and it was torn in some portion. We have no idea as to what portion of that label was really torn and it is in this context that the non-production of the can even at the appellate stage assumes some importance. It is also further important to note that significantly the can does not bear the Police Station C. R. Number at all. No attempt has been made by the prosecution even after this admission from the complainant to connect the bottle with reference to the contraband article found. It is true that Chemical Analysers report does indicate the C.R. Number. It is also further important to note that significantly the can does not bear the Police Station C. R. Number at all. No attempt has been made by the prosecution even after this admission from the complainant to connect the bottle with reference to the contraband article found. It is true that Chemical Analysers report does indicate the C.R. Number. However, that by itself does not establish the nexus between the article found and the article analysed. In other words, when a criminal liability is sought to be spelt out, it must be conclusively established that the contraband article was found with the accused and that the same contraband article was ultimately analysed by the Chemical Analyser. In the absence of any C. R. Number having been mentioned on the lable, the defence contention that an entirely difference can has been produced in Court renders itself more probable. In any event, the most important link establishing nexus between the two is utterly missing and the prosecution must face the consequences for the lapses on its part for not trying to connect the same. It was very easy for the prosecution to examine the carrier or somebody from the Police Station to show that the same bottle was sent. It is also important to note that the bottle is not produced in Court, or in any event it was not shown to the panch witness and it was only the can that was shown to the witnesses. As per the procedure, after affixing the seal and the label on the bottle, the articles are carried to the Police Station were the offence is registered and it is thereafter that C.R. Number is put on the label. The incorporating of the C. R. Number on the label is an absolute necessity in order to establish the identity of the article pertaining to the prosecution case and when such vital link is missing, then in my opinion prosecution are put to a thorough disadvantage. This infirmity is further aggravated by the non-examination of the carrier for which also there is no explanation. This Court has taken consistent view that the nexus must be established properly. See (Bustavav Vitori v. State of Maharashtra)1, 1976 U.C.R. (Bom.) 185 by Sawant J. In my opinion, therefore, the prosecution must fail on this short premises itself. 11. This infirmity is further aggravated by the non-examination of the carrier for which also there is no explanation. This Court has taken consistent view that the nexus must be established properly. See (Bustavav Vitori v. State of Maharashtra)1, 1976 U.C.R. (Bom.) 185 by Sawant J. In my opinion, therefore, the prosecution must fail on this short premises itself. 11. In addition to this, the story itself does not appear to be quite plausible as rightly contended by Shri Markande, the learned Counsel for the petitioner. If the accused in broad day light had sighted the presence of the Police Officers in the vicinity, then one would have expected to make some effort to do away with the can. As against this, we find that nothing of this sort was done but he almost meekly surrendered which also does not appear to be in keeping with the tendency of the criminal, if at all he was carrying a contraband article. He did not make any effort to run away form the spot or throw away the property. As state earlier, some features which were not noticed by the panch witnesses have been freely incorporated in the panchnama. The presence of the panch at the spot also cannot be said to be free from doubt in view of the fact that he was unable to make out a plausible case for his presence at the spot. The other panch has not been examined by the prosecution and, therefore, the defence were obliged to examine him. However, as there is a controversy about the identity of that person, a firm finding in that behalf cannot be recorded. The important link trying to establish the nexus between the article found and the article analysed is totally missing. There is a considerable delay in sending the bottle which has also not been explained and the carrier has also not been examined. The muddemal article though insisted upon by the defence being produced and in spite of a specific order from the Appellate Court have not been produced and the endorsement in that behalf is thoroughly unsatisfactory. The sample bottle and the lable thereon are not properly identified and this adds to the list of missing links. The cumulative effect of all these features is that notwithstanding this being revisional jurisdiction, the order of conviction is manifestly unjustified and deserves to be upset. 12. The sample bottle and the lable thereon are not properly identified and this adds to the list of missing links. The cumulative effect of all these features is that notwithstanding this being revisional jurisdiction, the order of conviction is manifestly unjustified and deserves to be upset. 12. In the result, the Rule is made absolute, the order of conviction and sentence recorded by the trial Court and confirmed in appeal is set aside and the petitioner is acquitted of the charge levelled against him. Fine if paid be refunded. His bail-bond stand cancelled. ------