JUDGMENT - D.G. DESHPANDE, J.:---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)1, 1988 Cri.L.J. 1878 (Jeevanchand Baliram Thakur v. State of Goa)2, and 1995(1) Bom.C.R. 229 (Mohamad Razzak Pathan others v. State of Maharashtra)3, 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. 4. 4. On the other hand the learned A.P.P. contended that even if two independent panch witnesses turned hostile, there is evidence of the P.S.I. who headed raiding party, and P.W. No. 6, the lady constable, on record which is sufficient to prove the guilt of the accused beyond reasonable doubt. He also pointed out that accused No. 1 who was police constable in service at that time did not give any explanation at all either in the form of suggestion in the cross-examination or during recording of his statement under section 313 of the Criminal Procedure Code as to for what reason he was present in the house and why police officers were impleading him falsely. The learned A.P.P. contended that since the accused were acquitted of the offence under N.D.P.S. Act, the rulings of this Court relied upon by the Counsel for the appellants were of no help to the defence. 5. Since the crucial question is of conscious possession of the accused of country liquor, it has to be considered in the back ground of the prosecution case. The presence of the accused at the time of raiding, though denied by the defence as per the submissions made by Mr. Chavan, has to be held to have been proved by the prosecution, and therefore, only question is, whether the prosecution has succeeded in proving their conscious possession of the contraband liquor. 6. In this regard, the evidence of P.W. No. 1 is the only evidence that is available. The evidence of P.W. No. 6, the lady constable, is of no much help to the prosecution because her evidence is very vague and she does not give any particulars regarding the presence of the accused in the house, the place where they were found and even on other material part of the prosecution case. 7. So far as P.W. No. 1 is concerned, he has stated that the raiding party entered the house where in accused No. 1, the constable, was present. The raiding party explained the purpose of their visit to the house and asked him whether he wanted to take search of the raiding party. Accused No. 1 declined. There after acquitted accused No. 2 was found in the house and when the search was taken one plastic bag containing 8 kgs. and 700 grams Ganja was found under the cot. 8. Accused No. 1 declined. There after acquitted accused No. 2 was found in the house and when the search was taken one plastic bag containing 8 kgs. and 700 grams Ganja was found under the cot. 8. So far as contraband liquor is concerned, with which they have present, the present appellants were caught hold of by P.W. No. 6 sitting in the bathroom of that house having glasses in their respective hands. They also found acquitted accused Babybai having with her a can containing illicit liquor. When the bathroom was searched one rubber tube containing illicit liquor and two plastic cans filled with illicit liquor, one plastic bucket which empty but smelling of liquor was also found in the bathroom. Five empty glasses in the hands of accused Nos. 3 to 7 were also recovered. 9. It has to be pointed out at this stage that even if the prosecution case now rest on the evidence of P.W. No. 1 only, there are ono reasons to disbelieve his testimony. His cross-examination did not bring out anything on record to disbelieve him or make his evidence suspicious. His cross-examination runs into two pages out of which one whole page is devoted in suggestions of which have been denied by the witness and in the rest of the cross- examination there is nothing to discard the evidence of this witness. 10. Therefore, even though, the evidence of only one witness i.e. P.W. No. 1 is available to the prosecution in the instant case, his evidence coupled with the panchanama is required to be accepted and was rightly accepted by the trial Court. 11. So far as the conscious possession of accused Nos. 3 to 7 is concerned, the prosecution has succeeded in proving the case beyond reasonable doubt. 12. At this stage, it is necessary to consider the rulings cited by Mr. Chavan. At the out set it has to be stated that all those three rulings relied upon by Mr. Chavan are in respect of N.D.P.S. Act. In Mohamand Razzak Pathan others v. State of Maharashtra the case of the prosecution regarding possession was rejected by the High Court because accused No. 1 in that case was found running away on seeing raiding party. And therefore, this Court rejected the case of the prosecution about the conscious possession of accused No. 1. 13. In Mohamand Razzak Pathan others v. State of Maharashtra the case of the prosecution regarding possession was rejected by the High Court because accused No. 1 in that case was found running away on seeing raiding party. And therefore, this Court rejected the case of the prosecution about the conscious possession of accused No. 1. 13. In the case of Jeevanchand Baliram Thakur v. State of Goa as relied upon above the room in which narcotic drugs were found was found to have been with lock, the key which was not in possession of the accused but it was found to be in possession of co-accused. Since the prosecution in that case could not prove that it was the accused No. 1 who had exclusive possession of the room where the narcotic drugs were found. This Court acquitted him. 14. In the third case of Antony Sauri Pillay v. The State of Maharashtra, referred to above the accused were acquitted because the prosecution could not establish nexus between the contraband articles with the accused. In that case also gunny bag containing contraband was found to be in possession of two persons who ran away on seeing raiding party. 15. From the aforesaid facts of the three reported judgments, it will be clear that all of them stand totally on different footings from the facts of the present case. So far as accused No. 3 to 7 are concerned, they were found in bath room. On the fact of it the presence of five persons in bathroom of the house, with which they had no connection or which was not owned by them is circumstance raising suspicion for which the appellants accused only can give satisfactory explanation and which had not been given in the instant case. Further in the bathroom, where these five persons i.e. accused Nos. 3 to 7 were found, the police found one rubber tube containing illicit liquor, two plastic cans filled with illicit liquor, one empty plastic bucket but smelling of liquor, five empty glasses in their respective hands. As rightly argued by learned A.P.P. for proving the conscious possession, but the prosecution is required to prove its knowledge of the accused about keeping of contraband articles or illicit liquor. As rightly argued by learned A.P.P. for proving the conscious possession, but the prosecution is required to prove its knowledge of the accused about keeping of contraband articles or illicit liquor. From the circumstances that have been proved in this case it has to be held that all the five accused were having conscious possession of the illicit liquor that was found in the bathroom. 17. However, so far as case of accused No. 1 is concerned, his case is required to be distinguished from rest of the accused. It is true that this accused No. 1 was a constable at the relevant time and as per the information received by P.S.I. P.W. No. 1 he was reportedly dealing in ganja and illicit liquor. It is also true that he was found in the house where ganja and illicit liquor were recovered by the police. However, so far as recovery of ganja is concerned, all these accused have been acquitted, therefore, that evidence cannot be considered by this Court in this matter. So far as possession of illicit liquor is concerned, Mr. Chavan rightly argued that accused No. 1 as per F.I.R. and panchanama was only found at the entrance of the house. There may be strong suspicion that he was indulging in all these illegal activities. However even strong suspicion can not take place of proof ,and therefore, appeal as against accused No. 1 is required to be allowed. 18. When this matter was last heard, the learned A.P.P. took time to find our whether any departmental proceedings have been initiated against accused No. 1 so far. Today, the learned A.P.P. has no instructions in this matter, and therefore, even if accused No. 1 is required to be acquitted directions in that regard are necessary. Hence the order:- ORDER Appeal is partly allowed. Conviction and sentence of accused No. 1 Gorakh Kanhoba Chavan under section 66(1)(b) of the Bombay Prohibition Act is set aside. He is acquitted of the said offence. If he has paid the fine, same should be returned to him. Appeal against rest of the accused Nos. 4 to 7 is dismissed. Their conviction under section 66(1)(b) of the Bombay Prohibition Act is maintained. They should surrender before the Special Judge, N.D.P.S., Thane for under- going sentence within three weeks from this order. If he has paid the fine, same should be returned to him. Appeal against rest of the accused Nos. 4 to 7 is dismissed. Their conviction under section 66(1)(b) of the Bombay Prohibition Act is maintained. They should surrender before the Special Judge, N.D.P.S., Thane for under- going sentence within three weeks from this order. So far as accused No. 1 is concerned, since he was constable and found in dealing with illegal activities, the Commissioner of Police, Thane is directed to take appropriate departmental action if no action so far as is taken. A.P.P. to communicate this order to the Commissioner of Police, Thane. Certified copy expedited. Appeal partly allowed. -----