http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: BHAGWANBHAI DULABHAI JADHAV

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 24/07/1962

BENCH:

ACT: Prohibition--Transport  of  contraband  articles  by   motor vehicle--Witnesses   to  search,  if  must  belong  to   the locality--Appeal    against    acquittal--Presumption     of innocence--Power of High Court--Bombay Prohibition Act, 1949 (Bom, 25 of 1949), ss. 65 (b) 81, 83, 117--Code of  Criminal Procedure 1898 (Act V of 1898) ss. 102,103.

HEADNOTE: The two appellants, who were tried along with there  others, were  acquitted by the Judicial Magistrate of charges  under ss.  65(a),66(b),81  and 83 of the Bombay  Prohibition  Act, 1949, but were convicted by the High Court in appeal by  the State.   The Magistrate found that the prosecution  evidence was  insufficient  to establish conspiracy  or  abetment  in transporting the contraband liquor and tobacco found in  the car on search.  The High Court took a different view of  the evidence and allowed the appeal so far as the appellants and another  were  concerned.   It was urged on  behalf  of  the appellants that the search was in contravention of s. 103 of the  Code  of  Criminal Procedure and  the  finding  of  the contraband articles had not been proved. Held, that a motor car was not a ’place’ within the  meaning of ss. 102 and 103 of the Code of Criminal Procedure or  the Bombay  Prohibition  Act, 1949, and S. 103 of the  Code  had therefore  no  application to a search of a  motor  vehicle. Consequently, it was not obligatory upon the Police  Officer to  comply with the formalities prescribed by  that  section nor upon the Court to discard the Panchnama or the  evidence of  the  finding of the articles where no witnesses  of  the locality could be called. Although  the  High Court in the convicting  the  appellants under  s.  66 (b) of the  Prohibitiuontion  Act,  conviction under ss. Act was not sustainable and must rate was in error in  discarding  the entire  evidence  because  discrepancies therein without appraising its intrinsic value. 387 Held, further that the Code of Criminal Procedure places  no special limitation on the powers of the High Court in  deal- ing with an appeal against acquittal, It can review the evi- dence and arrive at its own conclusion.  The presumption  of innocence  applies with equal, if not greater force in  such an  appeal and the burden of proving its own case  lying  as always  on  the  prosecution.   The  High  Court  would  not therefore  lightly disturb findings arrived at by the  trial court on appreciation of the oral evidences

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.56 ’61. Appeal  by special leave from the judgment and  order  dated August 16, 1960, of the Bombay High Court in Cr.  A. No. 225 of 59. B. B. Tawakley and A. G. Ratnaparkhi, for the appellants. M. S. K. Sastri and P. D. Menon, for the respondent. 1962.  July 24.  The judgment of the Court was delivered by SHAH, J.-With special leave, the two appellants  Bhagwanbhai Dulabai  Jadav and Haribhai Maganbhai  Bhandare--hereinafter referred  to  as  accused Nos.  1  and  5  respectively-have appealed  against  the  order passed by the  High  Court  of Judicature at Bombay setting aside the order of the Judicial Magistrate,  First  Class, Thana acquitting them  and  three others  of offences punishable under ss. 65(a), 66  (b),  81 and  83  of  the-  Bombay  Prohibition  Act,  25  of   1949- hereinafter called the Act. The case of the prosecution may briefly be stated: On August 25, 1957, a "wireless message" alerting the officers  posted on  "watch  duty"  at Kasheli Naka, District  Thana  that  a motor-car bearing No BMY 1068 belonging to the first appeal- lant  was carrying "contraband goods", was  received.   This motor car reached,the Kasheli Naka at about 388 2-30 p.m. on August 28.  The first accused was then  driving the  car  the  second accused was sitting by  his  side  and accused 3 to 5 were sitting in the rear seats.  Panchas were called  by  the  Sub-Inspector of police  Deshpande  from  a village  nearby  and  in  their  presence  the  vehicle  was searched and from the luggage compartment (which was  opened with  the  key  found on search on the  person  of  the  5th accused),  43 sealed bottles of foreign liquor and  a  large number of packets of tobacco were found.  A search list  was prepared  and  the  five  occupants  of  the  vehicle   were arrested.   The vehicle and the articles found therein  were attached.  The vehicle was handed over to the Central Excise Authorities  together with the ignition key and the  key  of the luggage compartment for taking proceedings in respect of packets of tobacco which were attached.  A charge sheet  was then  filed in the Court of the Judicial  Magistrate,  First Class,  Thana  against the five accused charging  them  with offences  punishable under so. 65 (a), 66 (b), 81 and 83  of the Act.  The accused pleaded not guilty to the charge: they stated  that the case was "false and entirely got up",  that no "liquor or other contreband" was found in the motor.  car and  ,,the whole plot was engineered by the enemies  of  the 1st  accused".  They denied that the motor-car was  searched in their presence.  The fifth accused denied that the key of the luggage compartment was found on his person.  The  trial Magistrate   held   that  the   brosecution   evidence   was insufficient  to establish that the persons  accused  before him were acting in conspiracy or were abetting each other in transporting  contraband articles in the car  and  acquitted them. Against the order of aquittal, the State of Bombay  appealed to the High Court of Bombay. The High Court  observed   that the  trial  court  treated  the  case  as  "a   mathematical problem", and 389 examined  the  evidence  giving undue  importance  to  minor discrepanies.   In the view of the High Court  the  evidence established that in consequence of information received from police-station  Vapi, motor oar No. BMY 1068 was stopped  at 2-30  p.m.  on August 28, 1957, near Kasheli Naka,  that  at that  time the 1st accused was driving the motor  car  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

belonged to him, that accused No. 2 was sitting near him and accused Nos. 3 to 5 were sitting in the rear seats, that the key  of the luggage compartment was found on the  person  of the  5th  accused, that on opening that compartment  in  the presence of the Panchas, 43 bottles of foreign liquor and  a large number of packets of tobacco were found, and that  the evidence  warranted  the conviction of all the  accused  for offences punishable under as. 65(a), 66(b), 81 and 83 of the Bombay Prohibition Act.  The High Court accordingly  allowed the  appeal  against  accused Nos. 1, 2 and  5  of  all  the offences  and  directed  each of them  to  undergo  rigorous imprisonment  for one year and pay a fine of Rs.  500/-  for each  of the offences; and in default of payment of fine  to rigorous  imprisonment  for  3 months  in  respect  of  each offence, and directed that the substantive sentences do  run concurrently.   The appeal against accused Nos. 3 and 4  was dismissed  because they could not be served with the  notice of appeal. The  High  Court  was undoubtedly  dealing  with  an  appeal against  an  order  of a quittal but the  Code  of  Criminal Procedure  placed no special limitation upon the  powers  of the High Court in dealing with an appeal against an order of aquittal.  The High Court is entrusted with power to  review evidence  and  to  arrive  at  its  own  conclusion  on  the evidence.  There are certainly restrictions inherent in  the exercise of the power, but those restrictions arise from the nature  of the jurisdiction which the High Court  exercises. In a Criminal trial the burden 390 always lies on the prosecution to establish the case against the  accused and the accused is presumed to be  innocent  of the  offence charged till the contrary is established.   The burden  lies  upon the prosecution, and the  presumption  of innocence  applies with equal, if not greater, force  in  an appeal to the High Court against an order of acquittal.   In applying  the  presumption of innocence the  High  Court  is undoubtedly  slow to disturb findings based on  appreciation of oral evidence for the court which has the opportunity  of seeing  the  witnesses  is always in a  better  position  to evaluate their evidence than the court which merely  persued the  record.   In the present case, the High  Court  in  our judgment, was right in holding that the trial court  ignored the  broad features of the prosecution case, and  restricted itself  to  a  consideration of  minor  discrepancies.   The Magistrate meticulously juxtaposed the evidence of different witnesses  on disputed points and discarded the evidence  in its entirety when discrepancies were found.  That method was rightly  criticised  by the High Court as  fallacious.   The Magistrate  had to consider whether there was  any  reliable evidence  on  question which had to be  established  by  the prosecution.    Undoubtedly,  in  considering  whether   the evidence  was realiable he would be justified  in  directing his  attention to other evidence which contradicted  or  was inconsistent   with   the  evidence  relied  upon   by   the prosecution.  But to discard all evidence because there were discrepancies  without  any  attempt at  evaluation  of  the inherent quality of the evidence was unwarranted. Sub-Inspector  Deshpande  spoke about the  wireless  message received  at  the  Kasheli Naka, about the  arrival  of  the motor-oar  of the first accused at 2-30 in the afternoon  of August 28, 1957, about the search of the car in the presence of the Panchas and the discovery of 43 ’bottle of foreign  391 liquor and packets of tobacco in the luggage compartment  of the   motor  car.   Nothing  was  elicited  in  the   cross-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

examination  which  threw any doubt upon the  truth  of  the story, and no adequate reason was suggested why he should be willing falsely to  involve  the accused, in the  commission of a serious   offence by fabricating false evidence.He  was corroborated by the contents of the "Panchnama", which was a written record contemporaneously made about the search,  and the evidence of the Panch witness Pandu Kamliya.   Deshpande was  also  partially supported by  headconstable  Chodabrey. The latter witness deposed that the motor-oar driven by  the lot  accused  was stopped at Kaheli Naka  and  panchas  were called,  but  according to him, search was made  before  the panchas  arrived  and  the bottles were  taken  out  of  the luggage compartment and placed near the car.  We agree  with the  view of High Court that the evidence of Head  Constable Codabrey though some-what inconsistent with the evidence  of Sub-Inspector Deshpande and the panch witness, accorded with their  story that the liquor bottles were in  the  motor-oar when  it  was stopped near the Kasheli Naka on  the  day  in question.    That  evidence  by  itself  is  sufficient   to establish that the accused possessed the bottles of  foreign liquor. It was urged, however, that under the law making of a search in  the  presence of independent witnesses of  the  locality called for that purpose was obligatory, and as according  to the  evidence of Head Constable Chodabrey and Panch  witness Laxman Ganpat the search was held without complying with the formalities  prescribed by s. 103 of the Criminal  Procedure Code,  the panchnama about the search of the motor-car,  and the evidence of the finding of the articles therein must  be discarded and the rest of the evidence was not sufficient to displace the presumption of innocence which 392 by the order of acquittal was reinforced.  We are unable  to agree  with  this  contention.   Section  117  of  the   Act provides, "Save as otherwise expressly provided in this Act, all  investigations,  arrests,  detentions  in  custody  and searches shall be made in accordance with the provisions  of the  Code  of  Criminal procedure, 1898:  provided  that  no search  shall be deemed to be illegal by reason only of  the fact  that witnesses for the search were not inhabitants  of the  locality in which the place searched is situated".   In view  of  that  provision it is  obligatory  upon  a  police officer  about  to make a search to call upon  two  or  more respectable  inhabitants of the locality in which the  place to be searched is situate to attend and witness the  search. But a motor-car is not a place within the meaning of as. 102 and  103  of the Code of Criminal Procedure;  nor  is  there anything  in  the  Act  by which a motor  car  would  be  so regarded for purposes of a search.  The provisions  relating to  searches  contained in a. 103 of the  Code  of  Criminal procedure  have  therefore no application and  in  making  a search  of a motor vehicle, it was not obligatory  upon  the police  officer  to comply with  the  requirements  thereof. This  is  not, however, to say that the  practice  which  is generally  followed  by police officers  when  investigating offences  under the Act to keep respectable persons  present on the occasion of the search of a suspected person or of  a vehicle may be discarded.  Even though the statute does  not make it obligatory, the police officers wisely carry out the search, if it is possible for them to secure the presence of respectable witnesses, in their presence.  This is a healthy practice  which  leads  to cleaner investigation  and  is  a guarantee  against  the oft-repeated charge  against  police officers of planting articles. It was strenuously urged by counsel for the appellants  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

the High Court did not attach suffi- 393 cient  importance  to  a piece of  evidence  which  strongly militated  against the truth of the prosecution case.   This piece  of  evidence.,  it  was  contended,  related  to  the ignition  key and the luggage compartment key,  produced  at the  trial.   As  we have already  observed,  the  motor-car together  with the ignition key and luggage compartment  key which   were  attached  were  handed  over  to  the   Excise Authorities for investigating the case in respect of tobacco which was attached with liquor.  The motor-car and the  keys were  produced by the Excise Authorities at the instance  of the  accused before the Magistrate.  An attempt was made  to open  the luggage compartment of the motor car by using  one of   the  keys  and  the  trial  Magistrate   recorded   his observations  in that behalf.  He has stated that  the  keys were  produced  by the Sub-Inspector of Central  Excise  and "with  the white key the look of the carrier was  tried  for thirty  minutes.  Oil was allowed to be put.  Even then  the lock was not opened.  The yellow key was ,,.hen tried on the petrol  tank  and  was  opened  immediately."  It   appears, however,  from the evidence of Inspector Jambekar  that  the "’white key was the ignition key and the yellow was the  key of the luggage compartment".  It is true that Head-Constable Chodabrey  say,  that the "’white key" was the  key  of  the luggage compartment and with that key the first accused  bad opened  the luggage compartment.  But we fail to  appreciate why no attempt was made by the Trial Magistrate to ascertain whether the yellow key could be used for opening the luggage compartment  and whether the white key fitted  the  ignition switch.   In view of this infirmity it is difficult to  hold that the story of the finding of the key and the  attachment of liquor after opening the luggage compartment of the motor oar was untrue. 394 The case tried by the Trial Magistrate was simple.  Thers is no dispute that the police officers had attached 43  bottles of  foreign  liquor  at  the kasheli  Naka  on  the  day  in question.  It was the case of the accused that these bottles of  liquor  were not in their possession  and  Sub-Inspector Deshpand  made a false panchnama showing that these  bottles were  found  in  the luggage compartment of  the  motor  car belonging to the first accused.  The primary question  which the trial Magistrate had to consider was about the  credibi- lity of the prosecution evidence in the light of the defence set  up  by  the accused.  The  bottles  of  foreign  liquor attached  by  the police exceeded Rs.2000/.  in  value:  the trial  Magistrate had to consider whether it was  reasonably possible that the police officers could procure the  bottles to falsely involve the accused, or having attached them from some  other  person, allow that person to escape  and  plant them  in the motor-car of the accused and then make a  false panchnama.  No. attempt appears to have been made to examine the  evidence  in  the  light  of  the  defence  set  up  or suggested.   It was urged that one Inspector Mane of  police station  Bhilad was an enemy of the 1st accused.   But  that does not explain the conduct of Sub-Inspector Deshpande.  It would indeed be difficult for Deshpande to secure this large quantity of foreign liquor, and even if it could be  secured no rational ground if; suggested why Deshpande would keep it with  him  on  the  possible chance  of  the  first  accused arriving  at  the  Kasheli Naka.  The High Court  has  on  a consideration  of the evidence of  Sub-Inspecter  Deshpande, the   Panch  witness  Pandu  Kamaliya  and  Head   Constable Chodabrey come to the conclusion that the accused Nos. 1,  2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

and  5 were guilty of possessing liquor in contravention  of the  provisions of the Act, and in our view the  High  Court was right in so holding. 395 But the order of conviction passed by the High Court and the sentence  imposed are not according to law.  Section  65  of the  Act  penalises  a person who in  contravention  of  the provisions  of the Act, or of any rule, regulation or  order made or of any licence, pass, permit or authorization  there under--(a)  imports  or exports any intoxicant  (other  than opium) or hemp, and the expression "import" is defined in s. 2(20)  as  meaning "to bring into the State  otherwise  than across  a  customs frontier." There is no  evidence  on  the record that the accused or any of them imported the  bottles of foreign liquor into the State.  The circumstance that the bottles  contained  foreign  liquor  and  the  accused  were residents  of the former Portuguese territory of Daman or  a locality near about, was not, in our judgment, sufficient to prove that the accused bad imported those bottles.  The High Court  was  there  fore,  in  our  judgment,  in  error   in convicting  the  accused  of the  offence  under  s.  65(a). Again,  there  is  no  evidence,  and  the  High  Court  has considered none, which establishes that two or more  persons had  agreed to commit or caused to commit any offence  under the Act.  Section 83 of the Bombay Prohibition Act  provides punishment  for conspiracy to commit or cause to  commit  an offence  under  the  Act.  But an  inference  of  conspiracy cannot be made from the facts proved in this case, viz. that the  five accused Were, found in a motorcar which  contained in  its  luggage  compartment a  number  of  foreign  liquor bottles  and  some  of  the  accused  were  blood-relations, Conviction  for  the offence under a. 83  is  therefore  not warranted  by the evidence.  Again, if accused Nos. 1 and  5 are  proved  to  have  committed  the  substantive   offence punishable  under  s. 66 (b) of the Act it is  difficult  to appreciate  how they can also be convicted of  abetting  the commission of that offence.  The offence under s. 81 of  the Act is therefore also not made out.  The appellants 396 were accordingly liable to be convicted only of the  offence under  a.  66(b)  of  the  Act,  and  the  maximum  term  of imprisonment  for  a  first offence  punishable  under  that section  is rigorous imprisonment for six months and a  fine of Rs. 1, 000/-.  We accordingly modify the order passed  by the High Court and maintain the conviction of accused Nos. 1 and 5 under a. 66 (b) and set aside the order of  conviction under  as.  65 (a), 81 and 83 of the Act  and  the  sentence passed  in  respect of those offences.  We also  modify  the sentence imposed by the High Court for the offence under  a. 66 (b) of the Act, and direct that each appellant do  suffer rigorous  imprisonment for six months and pay a fine of  Rs. 500/-, and in default of payment of fine do suffer  rigorous imprisonment for one month and fifteen days. Subject to that modification the appeal is dismissed.