1 Cri. Appeal No.488/1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 488 OF 1992 The State of Maharashtra ] Appellant ] : V E R S U S : 1. Musa Haji Abbas Mehtar, ] Age : 38 years, ] R/o : Tasgaon, Dist. Sangli. ] ] 2. Isa Haji Abbas Mehtar ] R/o : Khanbag, Sangli. ] ] 3. Sikandar Haji Abbas Mehtar ] Respondents Age : 42 years, ] (Ori. accused R/o : Tasgaon, Dist. Sangli. ] Nos. 1 to 4) ] 4. Usuf Haji Abbas Mehtar, ] Age : 57 years, ] R/o : Tasgaon, Dist. Sangli, ] ] All partners of Maharashtra Wholesale ] Wine Depot, Madhavnagar, Dist. Sangli ] Mrs. P.P. Bhosale, A.P.P. for State-appellant. Mr. S.K. Chari, i/by M.V. Kini & Co. for respondent nos. 1 to 3. Mr. N.D. Yelkar, Advocate appointed for respondent no.4 not present. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 31st AUGUST, 2010. 2 Cri. Appeal No.488/1992 JUDGMENT :- 1. The State has filed this appeal to challenge acquittal of the respondents of the offences punishable under Sections 65(b) (e), 66(1) (b), 77(1) (b), 78(e), 82(2), 83(a)(b), 86(1), 90 and 108 of the Bombay Prohibition Act, 1949 and for the offences punishable under Sections 420, 465, 471, 477A read with Section 34 of the Indian Penal Code by the court of Judicial Magistrate First Class, Sangli vide its order dated 21st May, 1992. 2. The respondents are partners of a firm by name Maharashtra Wholesale Wine Depot, Madhavnagar which runs a wholesale country liquor shop. It holds CD-II licence under the Bombay Prohibition Act for the purpose. The firm purchases country liquor from the manufacturers for sale and distribution to retail licence holders. The firm was C.D.II agent of M/s. Devkar Distillery, Kherdi-Chiplun, District-Ratnagiri during the period 1985-86 and 1986-87 with its licence number as D-6. The complaint against the respondents was that, during the period 18th December, 1985 to 31st January, 1987, they had sold 33,045 lts. 3 Cri. Appeal No.488/1992 of country liquor without maintaining Accounts for the sale of the same in excess to the liquor purchased authorisedly. For that purpose, they had forged bogus transport passes and cash memos. The respondents were also alleged to have evaded excise duty to the extent of Rs.4,76,955/- and thereby cheated the State Government. 3. In order to appreciate the complaint and the evidence led by the prosecution thereon, it will be necessary to know the procedure laid down by the Maharashtra Country Liquor Rules, 1973 as regards the manner of distribution of the country liquor. All the activities of the business of country liquor starting from its manufacture, sale to wholesale agents, retailers, consumers and the transportation of the liquor is fully controlled by the State. A wholesale agent of country liquor holds C.L. II licence and is called as C.L. II agent, whereas, a retailer holds license by name C.L. III and is called as C.L. III agent. Both these agents, whenever they require to purchase liquor have to place their demand by indent in writing. The entire manufactured liquor remains under the control of the Excise Officer. The 4 Cri. Appeal No.488/1992 demand of the wholesale agent is sanctioned by the Excise Officer appointed at the distillery who also issues transport passes for transferring the liquor from the Distillery to the godown of the wholesale agent. The transport passes issued are in triplicate. The original remains with the manufacturer, one copy is forwarded to the Inspector of Prohibition and Excise at the place of destination and the third is with the wholesale licensee accompanying the consignment. Similarly, on receiving the indent from the retailer, the wholesale agent issues transport passes for transporting liquor from his godown to the godown of the retailer. These transport passes are issued in quadruplicate. The first part remains with the wholesaler, second is with the retailer for sending alongwith the consignment, the third part is sent to the Inspector or Sub- Inspector of Prohibition and Excise in whose jurisdiction the premises of the wholesale agent is situate and the fourth part is sent to the Inspector of Prohibition and Excise of the place to which the country liquor is to be transported. All the three parties concerned i.e. the manufacturer, the wholesaler and the 5 Cri. Appeal No.488/1992 retailer have to maintain registers showing particulars of the number of indents, the transport pass numbers, the quantity of the liquor received, the quantity sold and the quantity held in balance. They are required to submit monthly returns in the prescribed form to the authorities. 4. The entire case of the prosecution rests on the documents seized from the distillery, the respondents i.e. C.L.-II agents and C.L.-III agents. The prosecution seeks to make out its case on the basis of inconsistent entries in the documents and more particularly inconsistencies in the register C.L.-X to be maintained by the distillery, CL-XV to be maintained by C.L.-II agents and C.L.-XXII to be maintained by all the three parties showing therein the number of indent, the transport pass numbers issued in Form C.L.-XVII, the liquor received, sold and held in balance. 5. Since the entire case rests upon the registers to be maintained by the three parties involved in the distribution of country liquor, the learned Sessions Judge has rightly first looked into the evidence as regards seizure of the documents under 6 Cri. Appeal No.488/1992 panchanama by evaluating the evidence of the panchas as well as the panchanamas. As regards the documents seized from the manufacturers or Manufactory Officer at the distillery, the evidence consists of that of PW-1, who was the Sub-Inspector of Excise i.e. Manufactory Officer at Deokar Distillery during the relevant period, PW-5 one Abhyankar, PW-25, partner of Deokar Distillery and PW-27, the Investigating Officer. PW-1 and PW-5 are the panch winesses. PW-5 Abhyankar is the son of one C.L.- II agent of Deokar Distillery and as such, in the opinion of the learned Sessions Judge might be under some obligations to Excise Officers. When it was suggested to this witness, in the cross-examination that no papers were seized nor any panchanama was drawn on 26th August 1987, he had preferred to keep silent. It was also seen that the evidence of PW-25, partner of Deokar Distillery disclosed that the document of C.L.- X register was at the relevant time in the custody of the Excise Officer and not in the custody of the manufacturers i.e. PW-25. There was no explanation offered in the evidence as to how the register, which is required to be maintained and observed by the 7 Cri. Appeal No.488/1992 manufacturer went into the custody of Manufactory Officer, PW-1 for a long period of one month and from there into the custody of the Investigating Officer. PW-25, in his cross- examination admitted unequivocally that C.L.-X register was not seized from his custody as per panchanama Exhibit 118. Thus the Sessions Court found that the evidence as regards panchanama of seizure of C.L.-X register was completely doubtful and could not be relied upon. There was also inconsistency in the evidence of PW-1 and PW-25 on the point of seizure as well as maintenance of registers and other papers at the distillery and by the Manufactory Officer. The defence of the respondents was that all the papers concerning the manufacturers and Manufactory Officer were prepared at the later stage and in the manner as to suit the convenience of the prosecution case. This defence supported by the evidence of PW-1, who admitted in his cross-examination that 5 C.L.-X registers from Exhibits 99 to 103 were issued and signed at one and the same time. This would mean that the registers were not maintained day to day as required by the rules. 8 Cri. Appeal No.488/1992 6. As regards the issuance of transport passes in Form C.L.-XIV, PW-25 admitted in his cross-examination that the Excise Officer at the distillery used to sign blank transport passes and hand the same over to the staff of the distillery. Though PW-1 denied the suggestion given to him that he used to sign blank C.L.-XIV transport passes, when he was confronted with CL-XIV form, which was seized, he had no alternative but to accept that he had signed blank transport passes under the seal of his office. It was further admitted by PW-25 that the transport passes, which are required to be issued by Manufactory Officer were not in the handwriting of the Manufactory Officer, but are in the handwriting of a Clerk of distillery, one Mr. Kulkarni. The Sessions Court found the above inconsistencies along with several others to be of very serious nature. As regards seizure of documents from C.L.-III agents, the Sessions Court found that the same was not proper and the panch witness PW-6 did not support the prosecution. As regards seizure of C.L.-XIV and C.L.- XXII registers, disputed transport passes and bills from the custody of various C.L.-III agents, the Sessions Court found that 9 Cri. Appeal No.488/1992 the panch witness i.e. PW-7 was a permanent witness of prohibition and excise police. Therefore, his evidence could not be relied upon. The court found that the maintenance of register by C.L.-III agent was also not proper. It finally opined that the investigating agency did not go to the root to the case because there was likelihood of exposure of its officers appointed at distillery as Manufactory Officers as also the manufacturers. It also opined that in no way offence can be committed only by C.L.-II agent, since the liquor coming into the hands of C.L.-II agents comes only after payment of excise duty. 7. I have carefully gone through the judgment and the entire record of the case and find that the observations of the learned Sessions Judge are fully borne out by the record and therefore, the learned Sessions Judge has rightly acquitted all the respondents. There is no scope for taking any other view in the matter. Hence, the appeal is dismissed. ( Smt. R.P. SondurBaldota, J.) 10 Cri. Appeal No.488/1992