minal Appeal No56 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 section K Sastri and P D Menon for the respondent
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 sections 65a 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 reachedthe Kasheli Naka at about 388 2 30 pm 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 pm on August 28 1957 near Kasheli Naka that at that time the 1st accused was driving the motor car which 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
65a 66b 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 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 section 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 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 Rs2000 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 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 section 220 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 section 65a
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 section 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 section 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 66b 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


Summary:
The two appellants who were tried along with there others were acquitted by the Judicial Magistrate of charges under sections 65a66b81 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 section 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 sections 102 and 103 of the Code of Criminal Procedure or the Bombay Prohibition Act 1949 and section 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 section 66 b of the Prohibitiuontion Act conviction under sections 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