CR.A/80/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 80 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJARAT Versus DHIRUBHAI G PATEL AND ANOTHER ========================================= =Appearance : MR MAULIK NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MR JM PANCHAL for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 08/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been preferred by the State of Gujarat challenging the order dated 11.09.1996 passed by the learned CR.A/80/1987 2/5 JUDGMENT Sessions Judge, Valsad at Navsari in Criminal Appeal No.33 of 1986, whereby the learned Appellate Judge has set aside the judgment and order of conviction dated 07.06.1996 passed by the learned J.M.F.C., Valsad in Summary Case No.2897 of 1995. 2. The prosecution case, in short, is that Shri Manoj Antani (PW-1) received secret information that liquor was going to be transported into the State from Bombay in two cars. A raiding party was constituted and on the basis of the information, a black ambassador car bearing registration No.MRZ-8257 was intercepted. Accused No.1 was driving the car and accused No.2 was sitting on the passenger seat. On conducting search of the car, 24 bags and 3 cartons were found containing 907 bottles of whiskey, brandy, etc. valuing about Rs.55,900/-. Samples from bottles were sent for chemical analysis and on receipt of report, charge sheet was filed. The accused did not plead guilty and sought trial. On conclusion of the trial, the learned Magistrate convicted both the accused persons for offences punishable under Sections 65(A), 11(1)(b) read with Section 81 of the Bombay Prohibition Act and sentenced each accused to imprisonment for two years and fine of Rs.3,000/-. No separate sentence was passed for the offence under Section 81 of the Act. 3. An appeal was preferred before the Sessions Court. The learned Sessions Judge allowed the said appeal on three grounds; (i) offence was committed on 4.8.1984 and chargesheet was submitted in Court on 23.8.1985, i.e. Beyond a period of six months and the trial being a summary trial, bar contained in Section 167(5) would be attracted and, therefore, the Magistrate could not have taken cognizance of the offence, (ii) panch witnesses had turned hostile and there being no independent evidence, conviction was bad, and (iii) no evidence was led by prosecution to show that liquor was imported from outside State. CR.A/80/1987 3/5 JUDGMENT 4. Aggrieved by the reversal of conviction order by the learned Sessions Judge, the State has preferred the present appeal. Heard Mr. Maulik Nanavati, Additional Public Prosecution and Mr. J.M. Panchal for the accused- respondents. 5. Mr. Nanavati, learned counsel for the State, has submitted that the reasoning given by the Appellate Judge is erroneous and, therefore, the judgment of acquittal deserves to be set aside and the order of conviction passed by the learned Magistrate be confirmed. As regards application under Section 167(5) of the Criminal Procedure Code, the learned Prosecutor relying on a decision of the Supreme Court reported in (1996) 1 SCC 341 has submitted that the language of Section clearly indicates that the provisions of Section 167(5) will be made applicable only where the investigation is pending and not where the investigation is completed and the cahrgesheet has been filed. He has submitted that in the present case, the investigation had already been completed and, therefore, there was no occasion to stop the investigation. Though the chargesheet has been submitted after expiry of six months, no application for discharge was ever moved by the accused nor any objection was taken before the learned Magistrate when he took cognizance of the offence on presentation of the chargesheet. He has further submitted that assuming that it is an irregularity, such is curable by virtue of provision contained in Section 460 of the Code and, therefore, the Appellate Court was wrong in holding that the learned Magistrate could not have taken cognizance of the offence. Mr. Nanavati has further argued that there is no rule of law that conviction cannot be based on the sole testimony of police witnesses. He has submitted that the corroboration is only a rule of prudence and not a rule of law. Lastly, he has submitted that in view of the presumption contained in Section 103 of the Bombay Prohibition Act, 1949, the burden CR.A/80/1987 4/5 JUDGMENT was on the accused to explain their possession. In absence of any such explanation and the fact that the accused were traveling from Bombay in a car bearing Maharashtra licence registration, the Sessions Judge has erred in recording a finding that the prosecution has failed to establish import of liquor by the accused persons. 6. Per contra, Mr. J.M. Panchal, learned advocate appearing for the accused persons has submitted that apart from the fact that the offence is very old, i.e. of the year 1984, the prosecution has not been able to establish sufficiently and conclusively that the accused persons had actually imported liquor from outside State. The raid conducted by the police is suspect and in absence of any independent corroboration, the learned Appellate Judge has rightly set aside the order of conviction. He has further submitted that even if this Court comes to the conclusion that the bar contained in Section 167(5) of the Code is not made applicable to the facts of the present case, then also, there is no credible evidence on record to establish guilt of the accused. He has also submitted that the testimony of police witnesses, who are interested witnesses, does not inspire confidence and no reliance can be placed upon their evidence. He has supported the reasons given by the learned Appellate Judge and submitted that there is no infirmity or perversity with the said findings. The conclusion recorded by the learned Sessions Judge are in consonance with the material on record and in any case, view taken by the learned Appellate Judge on the facts of the case is a possible view and, therefore, this Court should not interfere with the order of acquittal, more so after lapse of 24 years. 7. Having considered the rival submissions, we are of the opinion that the conscious possession of the driver and cleaner is not correctly established because both of them were driver and cleaner and it is not always possible to attribute that driver and CR.A/80/1987 5/5 JUDGMENT cleaner had knowledge of the fact that what was loaded in the truck. Sometime, it happens that they are only asked to carry truck. Conscious possession of the accused having been not established, we feel that for an offence which had allegedly taken place in 1984 and the first Appellate Court has recorded acquittal, then change in law should not be pressed against the accused persons because they believe that the law stood on the date when the conviction took place, would govern their case. In the background of facts, the present appeal deserves no consideration and, therefore, the same is dismissed. Bail bond, if any, stands cancelled. Office is directed to send record and proceedings to the Trial Court concerned forthwith. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar