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2019 DIGILAW 99 (BOM)

Sau. Shobha Baburo Shende v. State of Maharashtra

2019-01-11

M.G.GIRATKAR

body2019
JUDGMENT : 1. The applicant (hereinafter referred as accused) challenges the judgments of conviction by the learned Judicial Magistrate, First Class, Nagbhid and confirmed by learned Sessions Court, Chandrapur. Learned JMFC in Summary Criminal Case No. 58 of 2009 has convicted the applicant for the offence punishable under Section 65(e) of the Maharashtra Prohibition Act and sentenced him to suffer RI for three years and to pay fine of Rs.25,000/-, in default, to suffer RI for six months. Appeal filed against the said judgment vide Regular Criminal Appeal No. 49 of 2010 came to be dismissed on 30.11.2015. Hence, the present revision before this Court. 2. As per the case of the prosecution, the applicant was doing the business of selling illegal liquor. On 09.03.2009, police got information about the liquor in possession of the accused. Police, along with two panchas, went to the house of accused. They gave search to the accused. Thereafter, house of the accused was searched. During search, 48 bottles of illicit country liquor (Santra Company) were found in her house. Out of 48 bottles, one bottle was taken for CA sample. Seizure panchnama was prepared. After completion of investigation, charge sheet was filed before the learned Judicial Magistrate, First Class, Nagbhid. Particulars were explained to the accused. Prosecution has examined four witnesses. After recording the statement of accused under Section 313 of the Code of Criminal Procedure and hearing the prosecution and defence, accused came to be convicted as stated above. 3. Heard Shri A.J. Thakkar, learned Counsel appearing on behalf of the applicant/accused and Shri H.D. Dubey, learned Additional Public Prosecutor appearing on behalf of the respondent/State. 4. Shri Thakkar, learned Counsel for the applicant has submitted that the prosecution has failed to prove the ownership of the house of accused. Documents in respect of ownership of the house not produced on record. He has further submitted that the CA report is on record. But, question in respect of CA report not put to the accused during recording the statement of the accused under Section 313 of the Code of Criminal Procedure. Hence, prejudice is caused to the accused. Documents in respect of ownership of the house not produced on record. He has further submitted that the CA report is on record. But, question in respect of CA report not put to the accused during recording the statement of the accused under Section 313 of the Code of Criminal Procedure. Hence, prejudice is caused to the accused. In support of his submission, learned counsel has relied on the judgments of this Court in the cases of Kiran Ashok Jadhav .v. The State of Maharashtra (reported in 2014 All MR (Cri) 3850) and Smt. Pushpabai Marotrao Paraskar and another .v. State of Maharashtra (reported in 2011 All MR (Cri) 722). 5. Shri Thakkar, learned Counsel for the applicant/accused has submitted that the prosecution has failed to prove the guilt of accused beyond reasonable doubt and, therefore, accused is entitled for acquittal. 6. Shri Dubey, learned APP for the respondent/State strongly supported the impugned judgment. He has submitted that no prejudice is caused to the accused by not putting the question in respect of CA report. The material incriminating evidence in respect of liquor was put to the accused under Section 313 of the Code of Criminal Procedure. Cited judgments are on different footings and, therefore, the same are not applicable to the present case. 7. Perused the evidence on record. PW-1 independent panch witness of the same village namely Dajiba Randhaye has stated in his evidence that on 09.03.2009, they got information that accused was selling liquor without any permission. Therefore, they informed the police on phone. Police came to their village. They went to the house of accused. They gave their personal search to the accused. Nothing was found on their person. When they had taken search of accused, 48 bottles of country liquor of Rocket Santra Company were found. Out of those bottles, one bottle was taken for sample. It was sealed with the signatures of panchas. Panchnama was prepared in his presence. He has signed the said panchnama as witness. Another panch was Saosakhde. He also signed before him. Panchnama is marked at Exh.21. 8. PW-2 Jyoti, Lady Police Constable has stated that they went to the village Mendha. After getting information about selling of liquor by accused, they went to the house of accused along with panchas. During search, they found two boxes of country liquor in which 48 bottles of country liquor were found. Panchnama is marked at Exh.21. 8. PW-2 Jyoti, Lady Police Constable has stated that they went to the village Mendha. After getting information about selling of liquor by accused, they went to the house of accused along with panchas. During search, they found two boxes of country liquor in which 48 bottles of country liquor were found. It was of Rocket Santra Company. One bottle of 180 ml liquor was taken for CA sample. Panchnama was prepared. 9. PW-3 Police Head Constable Shri Khobragade has stated the same as stated by PW-Nos.1 and 2. He has stated that sample of one bottle taken out and it was sealed in presence of panchas. It was sent to Chemical Analyzer, Nagpur vide letter Exh.25. 10. PW-4 Chandra Chafale, Police Constable has stated that he carried one bottle which was in sealed condition to Chemical Analyzer, Nagpur. That bottle was seized in Crime No. 6020/2009. He handed over the same to Chemical Analyzer, Nagpur. 11. During the course of cross-examinations of all these witnesses, nothing material is brought on record. On the other hand, suggestions were given to the witnesses that it was liquor. PW-1 has stated in his cross-examination that liquor was seized from first room of the house of accused. PW-2 has stated in his cross-examination that liquor was seized from the house of accused. All this evidence in the cross-examination show that there is no serious dispute about the seizure of liquor from the house of accused. From the perusal of statement under Section 313 of the Code of Criminal Procedure, it is clear that material incriminating evidence was put to the accused. She has denied all the questions. No explanation is given by the accused as to why she kept illicit liquor in her house. 12. In the case of Smt. Pushpabai Marotrao Paraskar and another .v. State of Maharashtra (cited supra), it is held by Their Lordships, “No questions in relation to evidence of witness who proved spot panchnama, seizure memo or C.A. Report were put to any of the appellants in their examination under Section 313 of the Code of Criminal Procedure. Therefore, conviction was set aside.” 13. In the present case, all the material incriminating evidence are put to the accused. Seizure of liquor is not denied specifically by the accused. Therefore, conviction was set aside.” 13. In the present case, all the material incriminating evidence are put to the accused. Seizure of liquor is not denied specifically by the accused. On the other hand, cross-examination of the witnesses shows that seizure of liquor from the house of accused is admitted by the defence. Therefore, cited decision is not applicable to the case in hand. 14. In the case of Kiran Ashok Jadhav .v. The State of Maharashtra (cited supra), Their Lordships held that, “No evidence on record to show that sealed parcel containing chopper and clothes of accused were remained in sealed condition till same were received by Chemical Analyzer. There is every possibility of tampering. Therefore, the CA report is not reliable.” 15. In the present case, PW-4 has specifically stated that he had taken the seized bottle of liquor which was in sealed condition and handed over to Chemical Analyzer, Nagpur in a sealed condition. CA report is on record which shows that the bottle was received in a sealed condition. As per the CA report, sample contains 42% of v/v ethyl alcohol in water. It is not a medicinal/antiseptic/toilet preparation nor a flavoring material. The cited decision is not applicable to the case in hand because the sample bottle was sealed in presence of panch PW-1 Dajiba. He has stated in his evidence that the sample bottle was sealed in his presence. Seizure panchnama was prepared vide Exh.21. PW-3 Investigating Officer has stated that out of 48 bottles, one bottle was taken for sample and it was sealed. The said sample bottle was sent to Chemical Analyzer, Nagpur along with letter Exh.25. PW-4 carried the said sample bottle in a sealed condition. Therefore, the cited decision is not applicable to the case in hand. 16. The accused was doing the business of selling liquor. Villagers filed one application before the Court vide Exh.4. In the said application, villagers requested JMFC, Nagbhid not to release the accused on bail because she was continuously selling illicit country liquor in the village even though there was decision of Tanta Mukti Samiti not to sell the liquor in the village. 17. The prosecution has proved beyond reasonable doubt that accused was found in possession of illicit country liquor. Therefore, accused is rightly convicted for the offence punishable under Section 65(3) of the Maharashtra Prohibition Act. 17. The prosecution has proved beyond reasonable doubt that accused was found in possession of illicit country liquor. Therefore, accused is rightly convicted for the offence punishable under Section 65(3) of the Maharashtra Prohibition Act. At this stage, Shri Thakkar, learned Counsel for the accused has submitted that the accused being a lady, lenient view be taken and she may be released only on fine in stead of sending her in jail. 18. Section 65(e) reads as under :- “65. Penalty for illegal import, etc. of intoxicant or hemp. Whoever, in contravention of the provisions of this Act, or of any rule, regulation or order made or of any licence, pass, permit or authorisation granted there under - (a) … (b) … (c) … (d) … (e) [sells or buys or possesses any intoxicant] [(other than opium)] or hemp, shall, on conviction, be punished for each such offence [with imprisonment for a term which shall not be less than three years but which may extend to five years or with fine which shall not be less than twenty-five thousand rupees but which may extend to fifty thousand rupees or with both]. 18. The applicant is convicted for the offence punishable under Section 65(e) of the said Act and sentenced her to suffer RI for three years and fine of Rs.25,000/-. The applicant/accused is old aged lady about 59 years. She is contesting this case from the year 2009. Therefore, judicial discretion can be used to meet the ends of justice. 19. In that view of the matter, revision is partly allowed. Conviction of accused for the offence punishable under Section 65(e) of the Maharashtra Prohibition Act is maintained. However, sentence is modified as under - Applicant is sentenced to pay a fine of Rs.25,000/- (rupees twenty-five thousand only). The applicant/accused has already deposited fine amount of Rs.25,000/- before the learned Judicial Magistrate First Class, Nagbhid. Revision is accordingly disposed of.