Bombay High Court
Nasir Shaikh Yusuf Sheikh vs State Of Mah.Thr. Police Station ... on 14 July, 2022
Bench: Avinash G. Gharote
(1) 31revn116.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO. 116 OF 2021
Nasir Shaikh Yusuf Sheikh Vs. State of Maharashtra
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Mr. Amol Hunge, Advocate for the applicant
Mr. A.R.Chutke, APP for respondent/State
CORAM : AVINASH G. GHAROTE, J.
DATE : 14/07/2022
1] Heard Mr. Hunge, learned counsel for the
applicant and Mr. Chutke, APP for the respondent/State.
2] The learned Magistrate has convicted the
applicant for the offence u/s 65(e) of the Maharashtra
Prohibition Act and sentenced him to suffer S.I. for three
years and to pay fine of Rs. 25,000/-, in default S.I. for
30 days by the judgment dated 23.5.2018.
3] The appellate court by the judgment dated
19.06.2021 has partly allowed the appeal by maintaining
the conviction, however setting aside the sentence for
imprisonment. The sentence of fine has been maintained.
4] It is against these two judgments, that the
present revision has been filed.
(2) 31revn116.21
5] Mr. Hunge, learned counsel for the applicant
submits that the prosecution story that the applicant was
found carrying 5 bottles of Royal Stag (foreign liquor) of
180 ml each, worth Rs. 1,500/- and two bottles of
Imperial Blue (foreign liquor) of 180 ml each, worth
Rs.600/-, on 21.5.2016 has not been proved, inasmuch
as the punch witnesses before whom the seizure has been
made have turned hostile. He therefore submits that in
absence of an independent witness, to prove the seizure,
the conviction cannot be based upon the mere statements
and evidence of police constables who are all interested
in ensuring that the prosecution succeeded and therefore
have narrated the incident in a parrot like manner. He
therefore submits that the learned Courts below ought
not to have relied upon the evidence of PW-3 to 8, as
they were all interested witnesses. He further submits
that even during the course of evidence, PWs-3 to 8 have
not identified the accused, as no question to that effect
was put to them. He therefore submits that the conviction
based upon the testimony of PWs-3 to 8 who are
interested witnesses, cannot be sustained.
6] Learned APP opposes the application and
supports the impugned judgment. He does not dispute
that the witnesses to the spot panchnama and the seizure
viz. PW-1 and 2 have turned hostile and so also the fact
that no question was put to PW-3 to 8 in the nature of
identifying the accused, he however submits that the
evidence of PWs-3, 4 and 5 who were present on the spot
(3) 31revn116.21
is worthy of credence and the conviction based upon
their evidence is clearly sustainable in law.
7] It is a trite position of law, that wherever
possible, the conviction ought to be based upon the
testimony of independent witnesses and upon the chain
of events being established to the satisfaction of the court
based upon the evidence on record, and unless it is
shown from the record that the testimony of the other
witnesses was clear and reliable, it would not be safe to
base a conviction upon the testimony of interested
witnesses. In the instant case, there is no doubt that PW-1
and PW-2 who are the panch witnesses to the spot and
seizure have turned hostile. It is also a matter of record
that the conviction is based upon the testimonies of
PWs-3, 4 and 5 & 8 who are the police constables and
who are claimed to have carried out the raid on the basis
of secret information.
8] PW-3 is the person who has lodged the FIR
on the basis of the raid which is claimed to have been
conducted by him along with PWs-4 and 5. It is however
material to note that neither PW-3, nor PW-4 have
identified the appellant, as the accused person who is
claimed to be carrying the bottles of foreign liquor on the
fateful day from whom it is claimed to have been seized.
Though PW-5 in his chief states about the incident,
however, in his cross examination he categorically states
that the incident narrated by him in his examination in
(4) 31revn116.21
chief had never occurred. It is therefore apparent that the
entire conviction has been based upon the testimony of
PWs-3 and 4, who have failed to identify the accused. In
absence of the PWs-1 and 2, supporting the prosecution
story regarding the seizure of the material and the
evidence of PW-5 which indicates that no such incident
had taken place, the conviction of the appellant merely
on the testimony of PWs-3 and 4 is clearly unsustainable.
The courts below as is apparent from perusal of the
impugned judgment have not taken into consideration
the admission of PW-5 as has been brought out in his
cross examination. The evidence of PW-6, is of the
Station Diary Constable, who has lodged the crime
against the accused. PW-7 was the police constable who
has taken the seized liquor bottles to Chemical Analyzer
Laboratory, Nagpur, who in his cross examination has
also admitted that he did not know the date of recording
of his statement and the duty pass at Exh. 33 did not
bear his signature regarding receipt of the same. PW-8
has in his cross examination stated that he was unable to
tell the number of the motor-cycle of the accused. There
is also contradiction between the deposition of PW-3 who
says in his cross examination that on the fateful day no
secret information was received, as against which the
PW-8 says that the raid was conducted on the basis of
secret information received from the informant.
9] That apart, PW-8 further in his cross
examination indicates the absence of PW-4 at the time of
(5) 31revn116.21
the incident. It would therefore be apparent that the
testimonies of PWs-3, 4, 5 and 8 are contradicting each
other, considering which the same were clearly unsafe for
a conviction to be based upon. The impugned judgments
do not indicate these contradictions and omissions to
have been taken into consideration. It would not be out
of context to mention here that the name of the appellant
has been included in the list of persons who are held to
be eligible for compassionate appointment by the
Ordnance Factory, Chanda, on account of demise of his
father, who was working there. Considering that the
impugned judgments do not consider the inherent
contradictions and omissions in the evidence of PWs-3, 5
and 8 and that there is no independent witness to
support seizure of the material from the accused, in my
considered opinion, the conviction as rendered by the
Court below cannot be sustained, in view of which the
impugned judgments are hereby quashed and set aside
and the appellant is acquitted from the offence under
Section 65(e) of the Maharashtra Prohibition Act. His
bail bond stands cancelled. The fine amount be refunded
to the appellant.
10] Criminal Revision is allowed and disposed of
accordingly.
JUDGE
Rvjalit Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:15.07.2022 10:37
