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2023 DIGILAW 1361 (BOM)

Gajanan S/o Vikram Gose v. State of Maharashtra

2023-06-23

G.A.SANAP

body2023
JUDGMENT : G.A. SANAP, J. 1. Heard. 2. In this revision application, challenge is to the judgment and order dated 11.09.2015, passed by the learned Additional Sessions Judge, Gondia, whereby the learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate First Class, Tiroda, for the offence punishable under Section 65(e) of the Maharashtra Prohibition Act, 1949 (for short ‘the Prohibition Act’) (Earlier it was Bombay Prohibition act). Learned Judicial Magistrate First Class on conviction sentenced the accused to suffer rigorous imprisonment for three years. 3. The facts are as follows: PW-4 Police Head Constable Sunil Lakhanprasad Yadav is the informant as well as investigating officer. It is the case of the prosecution that on 06.05.2012 PW-4 received secret information that one person by name Gajanan S/o. Vikram Gose, R/o. Garada was illegally selling the liquor at his house. PW-4, alongwith Police Constable Sanjay Ambule, went to village Garada at about 9:50 p.m. They called panch witnesses for the purpose of raid from the said village. They apprised the panchas about the purpose of raid. They went to the house of the accused. The accused was present in his house. They apprised the accused of the information received by PW-4 and informed him that for the said purpose they have to take a search of his house. 4. It is the case of the prosecution that in presence of panchas, PW-4 and constable Sanjay Ambule took the search of the wadi abutting to the house of the accused. In the said wadi, they found one plastic can containing three liters illicit liquor. It was seized in presence of panchas. PW-4 drew the sample of liquor in one bottle. It was packed, labeled and sealed. The panchanama of the event, occurred on the spot, was drawn. The accused was arrested. In due course, the investigating officer received the Chemical Analyzer (For short ‘CA’) report. CA opined that the sample contained 14.40 % of ethyl alcohol in water. It was not a medicinal/antiseptic/toilet preparation nor a flavoring material. Thereafter, the chargesheet was filed. Prosecution examined four witnesses. Learned Magistrate on consideration of the evidence held the accused guilty and sentenced him, as above. The appeal filed by the accused in the sessions Court was dismissed by the Sessions Judge. The accused is therefore before this Court. 5. It was not a medicinal/antiseptic/toilet preparation nor a flavoring material. Thereafter, the chargesheet was filed. Prosecution examined four witnesses. Learned Magistrate on consideration of the evidence held the accused guilty and sentenced him, as above. The appeal filed by the accused in the sessions Court was dismissed by the Sessions Judge. The accused is therefore before this Court. 5. I have heard the learned Advocate Ms Sneha Dhote, appointed to represent the accused and the learned APP Ms Mayuri Deshmukh for the State. I have gone through the record and proceedings. 6. Learned Advocate for the accused submitted that the panch witness PW-1 and 2 were on inimical terms with the accused and therefore they have deposed against the accused. Learned Advocate pointed out that the PW-1 was the chairman of the Tanta Mukti Committee and as such, had close contacts with the police. Learned Advocate further submitted that the report was lodged by PW-4. PW-4 conducted the investigation. Learned Advocate submitted that as a matter of law informant and the investigator must not be the same person. It definitely causes prejudice to the accused. In such cases, there is no question of the accused having to show prejudice from such an investigation or to establish bias or a real likelihood of bias on the part of such an investigator. In order to seek support to this submission learned Advocate has relied upon decision in the case of Mohanlal vs. State of Punjab, (2018) 17 SCC 627 . Learned Advocate further submitted that there is no evidence on record to show the mode and manner of the storage and preservation of the sample. Learned Advocate submitted that the description of the sample was not recorded in Malkhana Register. Learned Advocate further pointed out that the sample drawn on 06.05.2012 was forwarded to Forensic Science Laboratory (For short ‘FSL’), Nagpur on 16.11.2012. Learned Advocate submitted that there was six months delay in dispatching the sample to the CA. The delay has not been explained. Learned Advocate submitted that evidence of PW-3 Gajanan Giri, the carrier of sample, is of no use to take the case of the prosecution forward. The contemporaneous documentary evidence in the form of requisition at Exh.12 and the CA report does not show that PW-3 carried the sample to CA. The delay has not been explained. Learned Advocate submitted that evidence of PW-3 Gajanan Giri, the carrier of sample, is of no use to take the case of the prosecution forward. The contemporaneous documentary evidence in the form of requisition at Exh.12 and the CA report does not show that PW-3 carried the sample to CA. Learned Advocate further submitted that the outward number, date and name of the carrier was not mentioned in the requisition at Exh.12. It is further submitted that there is no evidence in the form of the acknowledgment from the office of FSL, Nagpur to show that it was actually handed over by PW-3 in the lab and received by the concerned. Learned Advocate therefore submitted that CA report cannot be made the basis of conviction of the accused. Learned Advocate submitted that the alleged seizure of the liquor was not from the house of the accused but from the wadi which is adjoining to his house. Learned Advocate submitted that there is no evidence to show that the accused was either owner of the said wadi or having actual control over the same. Learned Advocate submitted that prosecution has therefore failed to establish conscious possession of the alleged liquor by the accused. Learned Advocate submitted that on the basis of the evidence the chain has not been completed and therefore, there is a scope and possibility of tampering with the sample. Learned Advocate submitted that the Courts below have not taken all these aspects into consideration. Learned Advocate submitted that Courts below have committed a patent error and therefore, the order passed by the learned Sessions Judge confirming the order of learned Magistrate cannot be sustained. 7. Learned APP submitted that the panch witnesses have supported the case of the prosecution. Learned APP submitted that the panch witnesses are independent witnesses and the accused except suggestions in their cross examination, has not demonstrated that they were on inimical terms with him. Learned Advocate further submitted that the case of the prosecution with regard to the raid, recovery and seizure of the liquor from the possession of the accused has been fully corroborated by the evidence of the panch witnesses. Learned APP submitted that report of CA at Exh.7 is sufficient to conclude that the accused was selling the illicit liquor. Learned Advocate further submitted that the case of the prosecution with regard to the raid, recovery and seizure of the liquor from the possession of the accused has been fully corroborated by the evidence of the panch witnesses. Learned APP submitted that report of CA at Exh.7 is sufficient to conclude that the accused was selling the illicit liquor. Learned APP submitted that procedural flaws pointed out by the learned Advocate for the accused are not material. Learned APP submitted that the flaws pointed out with regard to the raid, seizure and drawing of sample cannot go to the root of the case of prosecution and make the entire case doubtful. Learned Advocate submitted that the Courts below have minutely considered the evidence adduced by the prosecution and found the said evidence worth credible. Learned APP submitted that no interference is warranted in the well reasoned judgment rendered by the learned Sessions Judge. 8. At the outset it would be necessary to consider the submissions advanced by the learned Advocate for the accused relying upon the decision in the case of Mohanlal .v/s. State of Punjab (supra). In this case PW-4 was the informant as well as the investigator. The informant being the investigator is presumed to have interest in the success of the prosecution. The question is whether the accused can raised the defence of prejudice on this ground. In this case, the Hon’ble Apex Court has held that as a matter of law the informant and the investigator must not be the same person. It is held that any possibility of a bias or predetermine conclusion has to be excluded as a matter of law and cannot led to the adjudication of the individual facts of the case. It is true that the case before Hon’ble Supreme Court was under the Narcotic Drugs and Psychotropic Substances Act, 1985. The question is whether the ratio of the judgment is applicable to the case on hand where the accused is convicted under Section 65(e) of the Prohibition Act. It is to be noted that for the offence of possession of the illicit liquor a stringent punishment upto seven years imprisonment has been provided. In this case, the accused has been sentenced to suffer rigorous imprisonment for three years. In my view, therefore, the case of the accused would be squarely covered by the ratio of this decision. It is to be noted that for the offence of possession of the illicit liquor a stringent punishment upto seven years imprisonment has been provided. In this case, the accused has been sentenced to suffer rigorous imprisonment for three years. In my view, therefore, the case of the accused would be squarely covered by the ratio of this decision. A fair trial to an accused is a constitutional guarantee under Article 21 of the Constitution of India. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in the absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may in given case lead to false implication as well. In a criminal prosecution, there is an obligation on the investigator not only to be fair, judicious or just during investigation but also that the investigation on the very face of it must appear to be fair. In this case, the informant after lodging the report was expected to inform the incharge of the police station. The incharge of the concerned police station keeping in mind the serious nature of crime ought to have handed over investigation to the independent investigator, not concerned and connected with the actual raid, search and seizure of the liquor. In my view, in the fact situation, the submissions advanced by the learned Advocate for the accused to extend the benefit of doubt to the accused, on the ground of a prejudice is fully justifiable. 9. The second important aspect which is against the prosecution is the credibility of report of the CA at Exh.7. It is not out of place to mention that while drawing the sample of substance like illicit liquor a great care is required to be taken. The packing, sealing and labeling must be proved beyond reasonable doubt to the satisfaction of the Court. This process shall not leave any doubt in the mind of the Court. In this case PW-1, 2 and 4 have stated that the sample was drawn in a glass bottle and the bottle was packed. The label with the signatures of the panchas, accused and PW-4 was pasted on the same. The bottle was then sealed. This process shall not leave any doubt in the mind of the Court. In this case PW-1, 2 and 4 have stated that the sample was drawn in a glass bottle and the bottle was packed. The label with the signatures of the panchas, accused and PW-4 was pasted on the same. The bottle was then sealed. In this case there are major flaws in the case of a prosecution and therefore, on this count benefit of doubt must go to the accused. CA report is at Exh.7. CA has opined that the sample analyzed by him contained 14.40 % of ethyl alcohol in water. The question is whether this report is credible and acceptable to base the conviction of the accused. It is to be noted that from the point of packing of a sample till the sample reaches the FSL Lab the link evidence must be concrete and on the basis of the evidence the possibility of tampering with the sample in any manner must be ruled out to the satisfaction of the Court. In this case, PW-4 has stated that the sample was deposited with the Malkhana Moharir of the police station on 07.05.2012. The Malkhana Moharir has not been examined. Exh.10 is the extract of the Malkhana register. Perusal of the extract would show that in the column of the description of the sample, the description of the sample was not recorded. Only crime number was mentioned. In the Malkhana register, the name of the person who had deposited the sample and the date of the deposit was not recorded. It is the case of the prosecution that the label with the signatures of the accused, panchas and the PW-4 was pasted on the sample bottle. PW-4 has stated that it was sealed at the top by applying lakh seal. All these facts were required to be recorded in the Malkhana register and particularly in the column of description of the article. 10. According to the prosecution, PW-3 is the carrier of the sample to FSL, Nagpur. The requisition called as chemical analyzer form is at Exh.12. In his evidence, PW-3 has stated that on 16.11.2012 he collected the sample from Malkhana Moharir and went to Nagpur and handed over the sample to concern clerk at FSL, Nagpur. Perusal of Exh.12 would show that his name is not mentioned in the said requisition. The requisition called as chemical analyzer form is at Exh.12. In his evidence, PW-3 has stated that on 16.11.2012 he collected the sample from Malkhana Moharir and went to Nagpur and handed over the sample to concern clerk at FSL, Nagpur. Perusal of Exh.12 would show that his name is not mentioned in the said requisition. It is further seen that there is no date as well as outward number on Exh.12. The description of sample, which is necessary, was not stated in the document Exh.12. PW-3 has stated that he went to the lab and handed over the sample to the concern clerk and the clerk acknowledged the receipt of the sample. It is to be noted that on the given date he had carried 38 samples related to the prohibition cases to the chemical analyzer, Nagpur. Perusal of the Malkhana register extract would show that there is no entry in the relevant column to show that the sample was handed over to him. There is no acknowledgment and the signature of the PW-3 in the relevant column of the said register in token of the receipt of the same. PW-3 has stated that the acknowledgment received from FSL, Nagpur was handed over to the Malkhana incharge. The acknowledgment from the office of FSL, Nagpur in token of receipt of the sample has not been placed on record. It is to be noted that generally such an acknowledgment is given from the office of FSL, Nagpur on the copy of the requisition letter. The copy of the requisition letter is at Exh.12. There is no acknowledgment in token of the receipt of the sample from the FSL, Nagpur on Exh.12. 11. Perusal of CA report in this context is imperative. In the CA report, there is no mention that the sample was brought by PW-3. The date of the requisition letter received from the police station, the description of the sample and the outward number of the requisition letter has not been mentioned in the CA report. Similarly, the description of the sample and the label affixed to the sample is not mentioned in the CA report. In my view, this is very important aspect. The defence of the accused on this count gets fortified from other related aspects. 12. Similarly, the description of the sample and the label affixed to the sample is not mentioned in the CA report. In my view, this is very important aspect. The defence of the accused on this count gets fortified from other related aspects. 12. The question that arises in this case is whether the same sample was sent to the CA or not or it was some other sample. Malkhana in-charge has not been examined. The sample was lying in the police station from 7.05.2012 to 16.11.2012, for almost six months. There is no evidence as to the mode and manner of storage of the sample and the place where it was stored. There is no evidence whether it was separately stored or mixed with other samples. The mode and manner of storage of a sample in such a factual situation must come on record. There was delay of six months. The Malkhana incharge was the proper person to depose about it. The Malkhana incharge has not been examined. It has come on record that PW-3 on the given date had carried 38 samples related to prohibition cases. In the facts and circumstance, therefore, the CA was required to note down all the above facts in his report namely the outward number of the requisition letter, the name of the carrier, the date of the said letter and the description of the sample. The CA has stated that the description of the sample tallied with the description recorded in Exh.12. Perusal of Exh.12 would show that proper description of sample was not recorded there. In my view, in this background probative value of the CA report has to be considered. The facts and circumstances discussed hereinabove are sufficient to conclude that the possibility of tampering with the sample or sending the wrong sample to CA could not be ruled out. In order to place implicit reliance on CA report the complete chain with regard to the sample, its custody and storage till it is handed over in the lab must be established by the cogent evidence. In this case, the basic evidence on all these points is lacking. Therefore, in my view the report of CA could not be said to be authenticate report of the analysis of the sample drawn on the spot by PW-4. In this case, the basic evidence on all these points is lacking. Therefore, in my view the report of CA could not be said to be authenticate report of the analysis of the sample drawn on the spot by PW-4. In this case, the delay in forwarding the sample is the most important aspect against the prosecution. Therefore, in my view, there is substance in the submissions advanced by the learned Advocate for the accused on this point. In my view, therefore, the implicit reliance cannot be placed on the CA report to establish the case of the prosecution that the substance seized on the spot was illicit liquor. In my view, this is a very important and vital aspect. The prosecution has miserably failed to establish this prime aspect in this case. The Courts below have failed to consider this aspect in proper prospective and as a result thereof came to a wrong conclusion. Therefore, on this count the order passed by the learned Sessions Judge confirming the order passed by learned Magistrate cannot be sustained. 13. It is undisputed that the liquor was not seized from the house of the accused. It is also not the case of prosecution that the accused was apprehended at the time of actual sale of the liquor to the customer from his house. It is the case of the prosecution that the can was found lying in wadi/courtyard. The question is whether the wadi or courtyard belongs to the accused. The police was therefore required to obtain the necessary record to show that wadi is owned by the accused. It is to be noted that in such cases the prosecution is not only required to prove the possession but also the conscious possession of the article by the accused. The place where the alleged seizure was made was open place. The prosecution has not adduced any evidence to show that the said area was surrounded by compound wall. There is no mention in the panchanama about the boundary wall or any fencing to demarcate the boundaries of the property, in possession of the accused. In my view, in this factual situation the prosecution was required to prove this vital aspect. In the absence of any evidence to that effect, it cannot be said that the prosecution has established that the illicit liquor lying there was in the conscious possession of the accused. In my view, in this factual situation the prosecution was required to prove this vital aspect. In the absence of any evidence to that effect, it cannot be said that the prosecution has established that the illicit liquor lying there was in the conscious possession of the accused. In my view, this is a very important aspect which goes against the prosecution. 14. PW-1 and 2 are the panch witnesses from village. PW-1 is the head of Tantamukti Committee of the village. He has admitted this fact. Perusal of his cross examination would show that he was assigned the work being the member of the Tantamukti Committee to report to the police the sale of the illicit liquor. It is therefore seen that he was closely connected with the police. The investigating officer was therefore required to choose other independent panch. In my view, even if it is assumed for the sake of argument that the recovery and seizure is proved as stated by the prosecution the facts highlighted above with regard to the credibility of CA report could not take the case of the prosecution further on the basis of the evidence of PW-1, 2 and 4. On going through the record and proceedings I am satisfied that their evidence is not cogent, concrete and reliable. On the basis of the said evidence and particularly in the teeth of the doubtful CA report, it cannot be said that the prosecution has proved beyond doubt the charge against the accused for the offence punishable under Section 65 (e) of the Prohibition Act. The Courts below have failed to consider all the above aspect. The Courts below have committed error apparent on the face of record. Therefore, the judgment and order passed by the learned Secession Judge confirming the order of Magistrate is required to be set aside. 15. Accordingly, the revision application is allowed. 16. The judgment and order dated 12.12.2013 passed by the learned Judicial Magistrate First Class, Tiroda and confirmed by learned Sessions Judge, Gondia vide judgment and order dated 11.09.2015 are set aside. 17. The accused-Shri Gajanan S/o Vikram Gose is acquitted for the offence punishable under Section 65(e) of the Maharashtra Prohibition Act. 18. Bail bond of accused stands cancelled. 19. Learned appointed Advocate for the non-applicant and learned APP deserve a word of appreciation for the able assistance rendered by them to the Court. 17. The accused-Shri Gajanan S/o Vikram Gose is acquitted for the offence punishable under Section 65(e) of the Maharashtra Prohibition Act. 18. Bail bond of accused stands cancelled. 19. Learned appointed Advocate for the non-applicant and learned APP deserve a word of appreciation for the able assistance rendered by them to the Court. Learned appointed Advocate Ms Sneha Dhote is entitled to receive fees, which is quantified at Rs. 10,000/- (Rs. Ten Thousand only), to be paid by the High Court Legal Aid Sub Committee, Nagpur. 20. The criminal revision application stands disposed of. Rule made absolute in the above terms.