Judgment:
V.H. Bhairavia, J.
1. This Cri. Rev. Application has been filed by the petitioners-accused against the judgment and order dated 24-8-1983 passed by the learned Extra Addl. Sessions Judge, Surat in Cri. Appeal No. 145 of 1982. The petitioner-accused have been prosecuted for the offences punishable under Sections 65(e), 66(b) read with Section 82 of the Bombay Prohibition Act in the Court of the learned Judicial Magistrate (F.C.) Vyara in Criminal Case No. 287 of 1982. The learned Magistrate, after appreciating the evidence led by the prosecution, by his judgment and order dated 5-12-1982, convicted the petitioners-accused for the offence punishable under Sections 66(b), 65(e) and 81 of the Bombay Prohibition Act and sentenced them to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 500/- in default of payment of fine, to further undergo rigorous imprisonment for 1 month each for the offence punishable under Section 66(b), of the Bombay Prohibition Act, and to suffer rigorous imprisonment for 6 months and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 2 months each for the offence punishable under Section 65(e) of the Bombay Prohibition Act. The learned Magistrate further ordered that substantive sentence to run concurrently. Being aggrieved by the judgment and other passed by the learned Magistrate, the petitioners-accused preferred appeal being Cri. Appeal No. 145 of 1982 in the Court of the learned Extra Addl. Sessions Judge, Surat, who by his judgment and order dated 24-8-1983, allowed said appeal partly and quashed and set aside the order of conviction and sentence passed against the petitioner-accused for the offence punishable under Section 65(e) of the Bombay Prohibition Act and confirmed the order of conviction and sentence passed against the petitioners-accused for the offence punishable under Section 66(1)(b) of the Bombay Prohibition Act.
2. It is the case of the prosecution that about 420 bottle of Wishkey were seized from the Car bearing No. GJB 3681 by the Uchhal Police on 16-10-1981 at about 10-00 p.m. at Baldhara Railway Crossing in the presence of the panchas. There bottles were seized in the presence of the panchas but no seal with the signature of the panchas were affixed on the bottles. Muddamal bottles were sealed bottles bearing the mark of manufacturer company. The sample of the bottle was not sent to the Public Analyst for examination. The prosecution relied on the evidence of P.S.I. - complainant. Panchas were examined but they have not supported the case of the prosecution, Complainant for the offences punishable under Section 66(b) and Section 65(e) read with Section 81 of the Bombay Prohibition Act was filed against the petitioners-accused and they came to be tried by the learned Judicial Magistrate (F.C.) Byara, who recorded order of conviction and sentence dated 8-12-1982 as stated above.
In this Cri. Rev. Application, order of conviction and sentence has been challenged on various grounds. It has been submitted by the learned Counsel for the petitioner-accused that the order or conviction is unsustainable as the order of conviction is based on the presumption under Section 116(b) of the Bombay Prohibition Act. It has been further submitted that no such presumption under Section 116(b) of the Act is permissible under the law when panchas have not supported the prosecution case. It has been further submitted that the possession of liquor is not proved by the prosecution, as sealed bottles do not bear the signatures of panchas. It has been further submitted that muddamal bottles of liquor were not sent to Public Analyst and that no inquiry was made regarding the company whose labels were found on the bottles.
3. In support of his arguments, the learned Counsel Mr. H.M. Chinoy for the petitioners, relied on the State v. Bhimabhai Kalidas, reported in . It has been observed in para 10 in the said judgment as under:
10. As stated above, the evidence of PSI Joshi shows that he has not identified in his eviden : (1985)2GLR745 ce the muddamal of bottles to be those which were seized at the aforesaid time and place. Apart from that, he has nowhere mentioned the names of the manufacturers of the bottles in question. His evidence therefore is insufficient to connect the accused with the offence even though it is well established in the present case that the accused was present at the time and place of the incident, that a seizure was effected and that Rs. 490/- were recovered from the person of the accused. As a matter of fact, accused in his statement has admitted that Rs. 490/- were recovery from him which fact also goes to establish his presence at the time and place of the incident. In the rojkam also, the names of the manufactures of the bottles in question have not been stated. Section 116B of the Bombay Prohibition Act, 1949 provides as under:
116B. Where in any trial for any offence of unlawful possession of liequor under this Act, it is provided that the accused person was in the possession of any sealed bottle bearing the original label indicating the name of any known brand of spirits, such a whiskey, brandy, rum, gin, club cup, liqucurs, milk plunch, or of wines such as champagne, moselle, burgundy, chianti, white wines, clarets, hocks, riasling, meceira, ginger-wine, port type, port vermouth, sherry wincarnis vibrona, manola, backfast, tonic-wine, or of fermented liquors such as ale, beer, milk-stout (porter), cidar and the name of its manufacturer it shall be presumed that the accused person was in possession of liquor.
As per the said section, before a presumption can be raised thereunder, it is necessary to establish in evidence that the sealed bottle was bearing the original label indicating the name of any known brands of spirits and also the name of its manufacture. It is clear on the record of the case that at least the condition regarding the manufacturer of the bottles in question has not fulfilled in the present case. It is, therefore, not possible to raise the presumption under the said Section 116B. There is no other evidence in the case which connects the accused with the offence in question.
The ratio of the decision cited by the learned Counsel for the petitioners-accused is applicable to the facts of the present case. In the instant case, panchas have not supported the prosecution case, P.S.I, complainant himself has admitted in his cross-examination that the seal bearing signatures of the panchas were not affixed on the bottles and that he had not made inquiry regarding the companies whose labels were found on the bottles. P.S.I, has further admitted that he had not made any enquiry whether the seals of the bottles were original or not. Further, there is no independent cogent evidence connecting the petitioners accused with the offences alleged against them. Prosecution has failed to prove that the car belonged to accused persons and that they were in possession of that car. On the contrary, panchas have deposed that the accused persons were standing near the car when they were called at the Police Station. The bottles were also lying in the Police Chowky. Neither the signatures of the panchas were obtained, nor the seal was affixed on the bottles. Under the circumstances, the learned Magistrate has erred in raising presumption under Section 116B of the Bombay Prohibition Act and the learned Addl. Sessions Judge erred in confirming the view of the learned Magistrate, though partly. Hence, the judgment and order passed by the Courts below requires to be quashed and set aside.
5. Cri. Rev. Application is allowed. The judgment and order dated 24-8-1983 passed by the learned Extra Addl. Sessions Judge, Surat in Cri. Appeal No. 145 of 1982 convicting the petitioners-accused for the offence punishable under Section 66(1 )(b) and sentencing them as stated above, is hereby quashed and set aside and the petitioners-accused are acquitted of the offence punishable under Section 66(l)(b) of the Bombay Prohibition Act. Fine if paid, be refunded back to the petitioners-accused, petitioners-accused are on bail, their bail-bonds stand cancelled. Rule made absolute accordingly.