STATE OF GUJARAT v. Bhupatbhai Muljibhai — 1994 DIGILAW 363 (GUJ)

K. J. VAIDYA, J. ( 1 ) THIS appeal by the State of Gujarat is directed against the impugned judgment and order dated 15-9-1987, rendered in Summary Case No. 546 of 1986, by the learned J. M. F. C. , Botad wherein two respondents, namely Bhupatbhai Muljibhai and one another, who came to be tried for the alleged offence punishable under Section 70-A of the Bombay Prohibition Act, 1949, were ordered to be acquitted in the midst of the trial on the short ground of prosecution not examining the complainant. ( 2 ) THE prosecution case as per the complaint filed by Mr. D. B. Zala, PSI, Prohibition squad, Bhavnagar, was to the effect that on 13. 10. 1985 at 00. 15 hours when he alongwith his staff was patrolling the Rajkot-Surendranagar road to prevent illegal transportation of molasis. on seeing a Truck bearing No. GZX-8114 coming, stopped it. The same was found to be driven by Koli Bhupatbhai Muljibhai with Maganbhai Kanjibhai as a cleaner on it. On taking out search of the said truck, 400 tins of molasis, in all valuing at Rs. 1,90,002/- were recovered, and seized in the presence of two Panchas, namely Yusufali suvalibhai (PW-1, Exh. 9) and Bhura Kanji (PW-2, Exh-11) under Panchnama (Exh-10) as they had neither any pass nor permit nor any explanation to offer regarding the possession of the same. On the basis of these facts, PSI Zala filed a complaint before pso Palival for the alleged offence punishable under Section 70-A of the Prohibition Act, wherein after the investigation was over, the respondents came to be chargesheeted to stand trial before the learned J. M. F. C. , Botad. ( 3 ) AT trial the respondents pleaded not guilty and claimed to be tried. Thereafter, during the course of trial, two Panch witnesses who came to be examined did not support the prosecution and ultimately, the learned Magistrate acquitted both the accused on the short ground that despite several opportunities given to the prosecution, it failed to examine the complainant to substantiate the allegations made in the complaint, giving rise to the present appeal. ( 4 ) MR. P. S. Chapaneri, the learned APP appearing for the Appellant-State while challenging the impugned order of acquittal submitted that the same was ex-facie illegal and has resulted into serious failure of justice. ( 4 ) MR. P. S. Chapaneri, the learned APP appearing for the Appellant-State while challenging the impugned order of acquittal submitted that the same was ex-facie illegal and has resulted into serious failure of justice. The learned APP further submitted that taking into consideration the gravity and seriousness of the offence, the learned magistrate ought not to have Sightly disposed of the case and should have insisted upon examining the complainant who was a responsible police officer and in case he was not remaining present, his presence ought to have been secured at any cost by issuing bailable and thereafter even non-bailable warrant against him! Learned APP making still further grievance, submitted that for whatever reasons on 15-9-1987, in absence of the learned app, the learned Magistrate quite surprisingly assuming the unusual role of the learned app, examined two panch-witnesses who did not support the prosecution. This also, according to the learned APP was ex-facie illegal and contrary to the decision of this court rendered in case of Noormohamad alias Nooka Ayub vs. State of Gujarat, reported in 11 (1970) GLR p-846. On the basis of these submissions, the learned APP finally urged that the impugned order being patently illegal, the same in the interest of justice deserves to be quashed and set-aside and the matter be remanded to the trial Court permitting the prosecution to lead rest of the evidence to prove its case. The learned APP has also produced on record the Affidavit of Shri Vasant M. Rana, the learned APP, which is ordered to be kept on record. ( 5 ) AS against the above, Mr. Rajesh Dave, the learned advocate appearing for the respondents submitted that if the prosecution remained lethargic and negligent and did not take any interest and steps and that too for quite a long time to examine its witnesses, and if ultimately despite several opportunities being given to it, the same has failed to examine the complainant, then in that case, the trial Court cannot be blamed as it was certainly not expected to wait indefinitely and be at the mercy of the prosecution and accordingly was quite justified in passing the order of acquittal. Mr. Dave further submitted that there is no question of remanding the matter to the trial Court as to do so would be giving an unwarranted, undeserving opportunity to the prosecution to fill up the lacuna. Mr. Dave further submitted that there is no question of remanding the matter to the trial Court as to do so would be giving an unwarranted, undeserving opportunity to the prosecution to fill up the lacuna. In support of this contention, Mr. Dave has relied upon a decision of the Supreme Court rendered in case of The State of Rajasthan vs. Daulatram, reported in AIR 1980 SC 1314 = 1980 (2) uj (SC) 140 = 1980 (3) SCC 303 (SC) = 1980 Crlr (SC) 84. Mr. Dave further submitted that both the Panch-witnesses having already chosen not to support the prosecution, the remaining evidence of PSI-Mr. Zala standing by itself cannot be of any consequential help to the prosecution and accordingly, when such is the foregone conclusion scaling the fate of the prosecution, to remand the case merely for the sake of remanding it would be an exercise in futility. On the basis of these submissions, Mr. Dave finally urged that since no case is made out by the learned APP to allow this appeal at such a belated stage after eight years of the commission of offence, the same deserves to be dismissed. ( 6 ) NOW having heard the learned advocates for the respective sides quite at length, it clearly appears to this Court that the impugned order is per-se perverse and illegal. The learned Magistrate was not conducting a "mock trial" !! The case he was trying was a serious case under the Prohibition Act wherein 400 tins of molasis valuing at Rs. 1,90,002/- were seized. This is a serious offence against the Society as from such molasis (rotten Gur) only the country liquor is prepared, which in the past has resulted into several hooch tragedies taking heavy toll of human lives and making many more surviving blind for the life ! To view such an offence lightly and too technically and in follow through mechanically acquit the accused is something quite unbecoming of any learned magistrate, which cannot be countenanced for a while even!! Once the court takes cognizance of any case, it is its first and foremost duty to do justice and while doing the same, it can take assistance of the prosecution. Once the court takes cognizance of any case, it is its first and foremost duty to do justice and while doing the same, it can take assistance of the prosecution. Accordingly, if the prosecution renders desired assistance, well and good, but in case if for whatever reasons it fails to render the same, it is for the Court to exert and assert its judicial powers to compel the witnesses to remain present before the Court at any cost and see that the cause of justice do not suffer and fail on account of the negligent prosecution. Turning to the facts of the present case it is apparent that the Complainant was a Police Officer. Under the circumstances, it was the duty of the court to see that in the first instance by issuing summons and thereafter, warrant and even if that was not heeded to, by issuing even non-bailable warrant, he was kept present before the Court and examined in the overall interest of public. Not to discharge this duty in the manner suggested above, at the cost of repetition, it may once again be emphatically reiterated stated that it is serious dereliction of duty, which neither can be countenanced lightly by the Administration of Justice nor can the learned magistrate expect Society to pardon him !! It further appears that the learned APP has also not taken the desired care in conducting the trial and it was for this reason only that he was summoned by this Court to remain present. On appearing before this Court Mr. Vasant Rana from the file pointed out that the trial Court had once prepared summons against the Complainant Police Officer but for whatever reasons that remained on the file and was never taken out to be served upon the complainant. Now this circumstance on the contrary is an indicator to show that the learned APP-Mr. Vasant Rana had not taken any further interest in the matter, though his explanation was that because he was over-burdened with the work, he could not discharge his duty to the desired extent. Now this circumstance on the contrary is an indicator to show that the learned APP-Mr. Vasant Rana had not taken any further interest in the matter, though his explanation was that because he was over-burdened with the work, he could not discharge his duty to the desired extent. As stated above, merely because the learned APP for whatever reasons failed to evince the desired interest in keeping the complainant present before the Court, this was certainly no ground for the learned Magistrate to throw to winds his sense of duty, interest and initiative in the matter of examining the complainant as has been done in the instant case if the learned Magistrate was of the opinion that despite the fact that the two panch-witnesses were present in the Court and the learned APP was not present to examine them either he should have waited for the learned APP to come or should have adjourned the case to some future dale and in case if the learned Magistrate was of the opinion that learned APP was in habit in not regularly attending the Court then he should have drawn the attention of the concerned DSP and the learned District Magistrate of the area. Be the case as it may, but the fact remains that such short-circuit premature acquittals in a serious case like the present one ought not to have been gifted away on the flimsy excuse of prosecution not examining the complainant where it was also plainly the duty of the learned Magistrate to take necessary steps to examine him in order to subserve the ends of justice. These glaring infirmities in conduct of trial positively makes out the case of remanding the case to the trial Court for de-novo trial. It is not possible for this court to agree with the submission made by Mr. Dave that since both the Panchas have already failed to support the prosecution, therefore, the solitary interested evidence of police Officer standing by itself would not be of any consequential assistance to the prosecution and that the remanding of the case would be an idle formality and waste of public time. There are cases and case where depending upon the overall credibility of the evidence of the concerned Police Officer that the same can as well be relied upon despite the fact that Panchas have chosen not to support the prosecution. There are cases and case where depending upon the overall credibility of the evidence of the concerned Police Officer that the same can as well be relied upon despite the fact that Panchas have chosen not to support the prosecution. It is indeed too premature at this stage to say whether the evidence of concerned Police Officer would inspire the confidence of the trial Court or not. That all depends upon the honesty, integrity, performance and capacity of the concerned Police Officer to withstand the cross-examination at trial. ( 7 ) AS regards the second contention of Mr. Dave that by remanding the matter, this court will be practically allowing the prosecution to fill-up the lacuna, it may be stated that the same has no substance worth the name ! There is no question of filling up the lacuna in this case. The complainant who ought to have been examined yet remained unexamined before the Court firstly because of the remissness on the part of the prosecuting agency and thereafter secondly because of the patent lack of awareness of duty and power on the part of the learned Magistrate. Under such circumstances, to uphold the cause of justice to direct the trial Court to permit the prosecution to examine the panchas and complainant cannot be said to be a filling up of lacuna. In fact, if at all there is any lacuna, the said lacuna is merely the procedural one, of not discharging the duty firstly by the learned PP and thereafter by the learned Magistrate, such failure to perform duties on the respective part cannot be permitted to defeat the public-interest involved in such gross cases and thereby the ultimate cause of justice. ( 8 ) IN the result, this appeal is partly allowed. The impugned order of acquittal is quashed and set-aside. The matter is remanded to the trial Court for further trial. Taking into consideration the fact that the offence is of the year 1986, the learned Magistrate is directed to hear and decide the case preferably oft or before 31st July, 1995. The Circle inspector, Surendranagar Mr. D. B. Zala, who at the relevant time was PSI at Bhavnagar, is directed to appear before the learned Magistrate on 16-12-1994 and take the date for trial to give evidence before the Court. The Circle inspector, Surendranagar Mr. D. B. Zala, who at the relevant time was PSI at Bhavnagar, is directed to appear before the learned Magistrate on 16-12-1994 and take the date for trial to give evidence before the Court. Office is directed to place a copy of this judgment in the Service file of Mr. H. S. Tripathi, learned J. M. F. C. , Botad. .