1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.689 OF 1991 Subhash Singh Gopal Singh Rajput aged 40 years, Occupation Agriculture and Social work Resident of Agar Bhag Shirol, Dist. Sangli ...Appellant. v. 1 State of Maharashtra 2 Dilip Mahadev Kolap R/o. Ankali, Dist. Kolhapur (R.No.2/Org.Accd.) ...Respondents. Mr.Nagesh Chavan i/by T.S.Ingale, advs. For the Appellant. Mr. Y.M.Nakhwa, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : NOVEMBER 26, 2010 ORAL JUDGMENT: 1 The appeal is preferred by the owner of the Ambassador car no.MH-11-4409, which was directed to be confiscated as per the judgment and order dated 18.11.1991 in Sessions Case No.115 of 1990. 2 To state in brief, the accused Deelip Mahadeo Kolap was the driver of the said car. Said car met with an accident early in the morning of 16.1.1990 and, therefore, accused went to Islampur police station and orally reported about the accident. P.W.1 is Head Constable Ramchandra 2 Dhumale went to the spot at about 8.30 a.m. and during the inspection of the spot and the vehicle, he noticed that bundle containing about 2.1 kg of ganja was lying under the driver’s seat in the car. He directed the accused to drive the car to the police station and when the accused took the car to the police station, Head Constable Dhumale reported the matter to the P.W.3. Mr. Thorat, who was circle police inspector and who was present in the police station. Said ganja was seized and sealed under panchanama after completing certain formalities. After investigation, charge-sheet was filed against the accused and Sessions Case No.115 of 1990 came to be registered. After the trial, the learned Additional Sessions Judge acquitted the accused in view of certain discrepancies in the evidence of H.C.Dhumale and Inspector Thorat. However, the learned Additional Sessions Judge held that because the vehicle was being used for the purpose of conveyance of Ganja and as the owner, who is the present appellant, could not set aside proof that he had no knowledge that vehicle was being used for the conveyance of ganja, the vehicle is liable to be confiscated. Accordingly, the learned Additional Sessions Judge directed the confiscation and sale of the said vehicle. That order is challenged in the present appeal. 3 Heard the learned counsel for the appellant and the learned 3 APP for the State. Perused the Record and proceedings of the trial Court. 4 It is material to note that according to the prosecution case and as per the evidence of H.C.Dhumale packet containing ganja was found under the driver’s seat in the car and then it was seized as per the panchanama. The complaint or report lodged, Ex.7 lodged by Dhumale also shows that packet containing ganja was recovered under the driver’s seat. However, in the cross-examination of P.W.3 Inspector Thorat, it was revealed that he had interrogated the accused and on the basis of information given by him, he had raided some other place, i.e., house at Banewadi, near Karad and in that house some more ganja was recovered. About that he lodged complaint at Karad police station. In that report while giving background of the raid in that house, he had stated that in the dicki of the car no.MH-11-4409, a bundle containing ganja was seized. Thus, there was discrepancy as to whether ganja was found under the driver’s seat or in the dicki of the car. Panch witness did not support the prosecution case and he was declared hostile. In view of this discrepancy, trial Court did not believe evidence of Head Constable or that of P.I.Thorat and acquitted the accused. Thus, it has become doubtful as to whether ganja was found in the dicki or under the driver’s seat. Prosecution, thus, failed to prove satisfactorily that the said ganja 4 was actually found in the said car. Because the trial Court disbelieved the evidence of two police officers, it was difficult to hold that the vehicle was being used for the conveyance of the ganja. 5 It is material to note that it was explanation of the present appellant that on 12.1.1990, the car had left his house on a long journey assignment and he had given the car on the hire and accused was driver of that car. Car was expected to be back on 18th January but in the morning of 16th , accident took place. According to him, he was not aware whether any ganja was found in the car or that car was being used for the conveyance of ganja. P.W.5 PSI Suresh Pawar, who investigated the case also admitted in the cross-examination that it was revealed that Subhash Singh Rajput, i.e., the present appellant, who was the owner of the car used to give the car on hire and the accused was working as a driver of the car. He also admitted that during the investigation, it was revealed that accused had taken away the car on 12.1.1990 on a long distance trip engagement. This admission of the Investigating Officer provides corroboration to the testimony of the owner of the vehicle. 6 In view of the facts and circumstances noted above, it is established that car had left the house of the owner on 12.1.1990 on a long journey assignment and even though the car was expected back on 5 18th, accident took place on 16th. According to the Head Constable Dhumale and P.I. Thorat, ganja was found in the car but in view of the inconsistency in their evidence, the trial Court did not believe them and acquitted the accused. In view of such circumstances, it may be believed and held that the present appellant, who was the owner of the car, had no knowledge that car was being used for the transportation of ganja. Therefore, I find that the trial Court committed error in passing the order of confiscation and sale of the said car. 7 For the aforesaid reasons, appeal is allowed. Impugned order in respect of confiscation and sale of the car is hereby set aside. (J.H. BHATIA,J.)