Koli Ganda Malu vs State

Chhatpar, J.—This revision application is against the conviction of the applicant of an offence u/s 66(b), Prohibition Act for being in possession of prohibited liquor without a license, permit, pass or Hihorlsatlon. The prosecution alleged that on 8-5-54, the Police Constable Agar sing of Ambit had gone on patrol duty towards the village Bodied, some six miles from Lambda. At about 9.0 p. m., he was going to the direction of the village Rasa along with the village police-man Rising, when they saw coming from the opposite direction"", the present accused and Anr. person whose name was subsequently disclosed as Macho.

The police-man accosted them but both of them tried to run away. The applicant was caught. The other person succeeded in escaping. The applicant had two bottles of country liquor wrapped in a piece of cloth. lie was taken to the Lambda Police Station, there being no Police Station at Bod 1, which was the nearest village. A Panchnama was made, the bottles sealed and sent for examination to the Chemical ''Analyzer at Junagadb. The report of the Chemical Analyzer is that they contained i.e., country liquor or wine with 35 per cent, alcohoi.

On these facts the applicant was chailnned for an offence u/s 60 of Prohibition Act." Die Magistrate convicted and sentenced him to three months" rigorous imprisonment and to pay a fine of Rs. 500/-, in default to a further month's rigorous imprisonment. The applicant preferred an appeal to the Sessions Court, which was dismissed. As the case was tried summarily the Sessions Judge referred to -two decisions of this Court, one in - Chhaganlal Nanji v. The State 7 Sau LR 158 (A), and the other in ''State v. Halt Khoda AIR 1053 Sau 161 (13), laying down that the judgment of the Magistrate in a case tried summarily is the one record of the case and which could be looked at by the Sessions Court. Such judgment however, must necessarily conform to the provisions of Section 204, Code of Criminal Procedure and embody therein the substance of the evidence as also the particulars required in Section 263.

The learned Sessions Judge discussed in details the main features of the oases and confirmed the conviction and sentence of the applicant.

Mr. V.K. Shah the learned Advocate for the applier"" first contends that the Sessions Judge should have referred to the full evidence recorded by the Magistrate as his judgment does nor, embody the substance of the evidence required by Section 264. This ground of the Magistrate nor, having incorporated in his judgment the substance"" of the evidence had not been raised before the Sessions Court nor has It been raised in that revision application in It has been taken for the first time In argument before me. If it was argued before the Sessions Court and the Court was satisfied as to its correctness, the Sessions Judge might have re-inurned ''the case to the Magistrate. It is not open fro the applicant in a revision application to urge such a ground for the first time. And indeed, reading the judgment of the Magistrate as also of the Sessions Judge, it seems that this ground is without any substance, as both these judgments are elaborate and apparently embrace all the features of the case and refer to the substance of the evidence. 1 therefore overrule this contention.

The next ground urged before me which ""was also not taken in the Court below, is one hazed upon the recent decision of the Supreme Court in

- Behram Khurshed Pesikaka Vs. The State of Bombay, . The learned Advocacy argues that the burden of proof that the bottles seined contained prohibited liquor was on the prosecution. The learned Advocate further argues that the judgment of the Sessions Judge seems to show that he mainly relied upon the weakness of the defence set up by the accused which was to the effect that the two bottles were contained in a small bag

(polka) which was the possession of Madhu, the other person v/ho succeeded in escaping and while running away Madhu threw down this bag with the bottles which were foisted upon the applicant-Now the burden of proof undoubtedly lies on Who prosecution to prove that the bottles seized Q, contained prohibited liquor, according to the , decision of the Supreme Court. We have, how-Jeer, on the record the report of the analysis of the Chemical Analyzer, which says that the bottles contained country wine containing 35 per cent, alcohol. The learned advocate attacks this report on the ground that it should, also show what other ingredients were contained in the liquid in the two bottles and therefore the report being incomplete, could not form the basis of conviction without the Chemical Analyzer being called by the prosecution to explain fully whether the liquid in question was not one which cold be used for medical or for toilet purposes.

Before the Magistrate the veracity or (he suffix cogency of the report was no questioned nor did the accused move the Court for examination of the analyzer. The case is a simple one of the applicant being in possession of prohibited liquor and the report showed clearly the liquid in question as wine referred to as "" (Country Liquor) and containing 35 per cent alcohoi. This positive analysis of the liquid in question excluded the possibility of any liquid used for toilet or medicinal purposes, as it is common knowledge that (Country Liquor) not used for toilet or medicinal purposes.

The Bate;"" High Court commenting on Section 510, Code of Criminal Procedure, in "Behram Sheller v. Emperor" 4IRU344_Boin 321 (1, held that the report of Inezeintea Falser may be used as evidence- without the officer being called as a witness Sut where the guilt or innocence of the accused turns entirely on the result of the chemical analysis as to the presence of certain ingredients in the articles before the Court it is desirable that the Chemical Analyser should be examined in support of his report and the accused . given an opportunity of cross-examining him.

If fate Chemical Analyser's report alone is (being considered sufficient it should contain all the Information which that officer himself would 1 have been able top furnish if he had'' been examined a witness. ''There, Is no scope for applying this principle to the facts of the present case, as the report clearly showed that the liquid sent to him for analysis was country wine, containing 35 per cent alcohol and it is not understood in what way the examination of the Chemical Analyzer could nave thrown greater light by his being called in evidence by the prosecution. Chitaley & Rao in their Commentary on Section 510, Code of Criminal Procedure Edn. 4, Vol. 3 at p. 2815 state:

The use of the word "may" shows that the matter is one for the exercise of the Court's discretion. When in the interests of Justice, the examination of the Chemical Examiner is necessary, the Court can call him so that he may be subjected to cross-examination. Where, for instance neither the accused nor his Counsel objects to the admission of the report and no request 1"" made for calling the Chemical Examiner, the Court need not examine the Chemical Examiner"". In a revision application the High Court will be reluctant to interfere with the lower Court's discretion.

The learned advocate has referred to the definition of "country liquor" in Section 2, CI, (S), Prohibition Act and also to the definition of ''liquor in Clause (24) of the same section. He has relied upon the latter portion of the definition of ''liquor as including "all liquids consisting or containing alcohol" and argues that the mere fact that the liquid contained alcohol does not prove that it is prohibited liquor. But in the present case report of the analysis shows the liquid to be want, coming in the first part of the definition fit liquor in Section 2, Clause (24)

In such circumstances, the fact that the liquid was prohibited liquor has been contiu-1 sively established-(5) The learned advocate for the applicant next attacks the panchnama on the ground that it was made at Lirnbdi, some six miles away from the place of arrest. Now this is not a case whew -in any search of a person or of a premises is required to be made by law in the personae of pinches, The learned Government Pleader explains that the accused was taken to Limber for the simple reason that at Linda there is a Police Station while in the village Bodied there is none.

The making of a, panchnama on the spot is not an essential element in the present case and! the mere fact that it was made at Lirnbdi and not at a place nearer to the place of arrest) makes little difference.

The next ground urged by the learned advocate is as to the Identity of the bottles seized with those sent t6 the, Chemical Analyzer. The learned advocate argues by reference to the import of tie Chemical Analyzer that the bottles were received on 12-5-1954 whereas they were seized on 8th May, so there was an interval of about four days. But the report shows that the bottles were received in. a sealed condition aid we have the evidence of the Panch and the police officers that the bottles were sealed when the panchnama was made at Limbdi.

No explanation seems to have been sought for by the accused in the trial Court about the alleged delay in sending the bottles for chemical analysis to Unpaged and it is not possible to say that there was no sufficient reason for this delay. The two lower Courts have been satisfied as to the identity of the bottles seized with those sent to the Chemical Analyzer and I cannot permit such a simple question of fact being enquired into by a Court of revision.

The last point urged by the learned advocate for the applicant is again on a curium of fact and relates to; the probative value to be a-, that conclu-1 applicant and that way from so where-''.cuss is re-cilice of clerk co-ibid for a Police is none. the spot is in act to Umbel of arrest into by attached to the evidence of the police witnesses. Jug the present case, the primary evidence would he of the vivo police .officers, supported by the evidence of the panch and the Panchnama and t be Chemical Analyser report. The learned advocate has referred to some rulings of the Bombay and other High Courts laying down in what circumstances the evidence of police officers alone should not be considered as sufficient without any other corroborative evidence. I may refer to a decision of the Bench of the Bombay High Curt in - Shanwar Manu Koli Vs. Emperor, , wherein three classes of cases are discussed by Chagla C. J., who has laid down very succinctly the principles in the (allowing terms:

Where the law makes it obligatory for a search to take place in presence of Pinches and the only evidence on which the prosecution ask for a conviction of the accused is police evidence, the Court will not ordinarily act on that evicense.

There is a second class of cases where it is impossible to seize an article or to arrest a person in presence of pan has. Police Officers may suddenly come across a'' working still or they may come across a person on whose person there are incriminating articles and they may have to seize the still or they may have to arrest the person. In cases like these it would be open to the trial Court to accept the Police evidence and convict the accused, if the Court is satisfied that the evidence is of a satisfactory character and the guilt of the accused is proved.

There again is a third class of cases, where although the law does not make it obligatory for a search to take place in the presence of panchas, still in view of the information already received there is sufficient time for Panchas to be called uncap a seizure to be made in presence of Panchas.

Here, although the law does not make it obligatory, it is advisable on the part of the police to raid a place or seize incriminating articles in presence of panchas.

If the police do not avail themselves of panchas, the result would not be that the police evilTic: rrm.st necesirily be discarded and no conviction can be based on that evidence. But the Court must very carefully scrutinize the police evidence which would be the only evidence be fore it on which a conviction could be based. If after careful scrutiny the Court is satisfied that the evidence is such as can be safely acted upon, l j would be open to the Court to act on that evidence.

This decision has been followed in a subsequent Icon decision of the same Court in - Sakarchand Satidas and Others Vs. Narayan Savla Vani and Others, . The present case falls within the second class of cases referred to in ''Shanwar Manu v. Emperor (E) Woo have further here the evidence of the Pinch TIDIOM evidence cannot be rejected on (he solo ground that the panehnnma was made at a distant place in circumstances of the present case. There is no substance in the contention of the learned Advocate; No other point has been raise? 1 therefore dismisses this revision application.