Bombay High Court
Hareram Babarao Wakode vs State Of Mah. Thr. Pso Ps Akot File ... on 20 June, 2022
Bench: Avinash G. Gharote
(1) 37.revn.138.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.138 OF 2022
Hareram Babarao Wakode
Vs.
State of Maharashtra, through, P.S.O. PS., Akot File, Akola Dist. Akola
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. H. M. Mohta, Advocate for applicant.
Mr. S. M. Ghodeswar, APP for non-applicant/State.
CORAM : AVINASH G. GHAROTE, J.
DATE : 20/06/2022
The only ground urged, is that the seizure
panchnama of the sand in respect of which the applicant
is convicted for having committed theft under Section
379 of the Indian Penal Code, has not been proved by
examining the witnesses to the panchnama at Exh.16,
and therefore, the learned Appellate Court was not
justified in setting aside the judgment of acquittal dated
18.2.2015 passed by the learned trial Court, by the
impugned judgment dated 15.6.2022. A copy of the
property search and seizure form is shown to the Court
at Exh.16 which is dated 6.2.2014, which indicates that
the panchs to the seizure R.C. Khandare and Milind
Kamble, have been examined as PW 2 Exh.17 and PW 3
at Exh.13, from the record of the exhibited documents
and the evidence tendered across the bar by Mr. Mohta,
learned counsel for the appellant, which is accepted and
marked as 'X' collectively for the purpose of
identification. It is not disputed by him that there is no
(2) 37.revn.138.2022
transit pass or any document which would indicate the
ownership of the sand by the applicant or the
entitlement to transport it. The contention is that the
witnesses to the seizure of the tractor trolley and the spot
panchnama have not been examined and therefore, the
entire judgment which is based on the testimony of PWs
2 and 3, who have seized the vehicle with sand in
question under the seizure memo at Exh.16 from the
spot, cannot be relied upon. He further submits that the
sand in question has not been sent to the chemical
analyzer for the purpose for determining as to from
which Ghat it belongs. Insofar as the contention
regarding the sending of sand to chemical analyzer, in
my considered opinion it is misplaced, for as per the
provisions of Section 48 of the MLR Code any
transportation of sand, without a legal transit pass has
been made an offence. Admittedly, the applicant did not
possess transit pass whatsoever, considering which, the
only conclusion which could have been logically drawn
was that the sand was stolen by the applicant, either
from the sand Ghat or any other place. Therefore the
question of sending the same to a chemical analyzer for
analysis did not arise at all. That apart, a perusal of
Section 48 of the MLR Code would indicate that PW 2
who was the Talathi/Revenue Officer had the authority
to conduct the seizure which has been so done by him
under Exh.16. By examination of PWs 2 and 3, Exh.16
the seizure memo in respect of sand in question has been
(3) 37.revn.138.2022
duly proved by the prosecution. The learned trial Court
did not advert to this aspect at all but went on a different
footing altogether to arrive at a finding that the offence
was not made out and that the prosecution had failed to
demonstrate as to from where the sand was brought by
the applicant. In my considered opinion, when
excavation and transportation of sand, cannot be done
under a permit issued by the competent authority, the
question as to from where the sand was procured,
becomes immaterial, considering the fact that the
applicant was found with the sand in his possession
without a legal valid permit which is an admitted
position on record. The learned Appellate Court
therefore, had rightly set aside the judgment of the
learned Magistrate as that was the sole ground for
acquittal and has rightly considered that though the
witnesses to Exhs.20 and 21 may not have been
examined, the witnesses to Exh.16 which deals with
seizure of the sand, have been examined as PWs 2 and 3
and have rightly proved Exh.16, which coupled with the
fact that the applicant did not have any permit for
transportation of the same lead to no other inference
that the sand was stolen, considering which, I do not see
any reason in the instant matter to interfere in the well
reasoned judgment of the learned Appellate Court.
The revision is accordingly rejected.
Digitally signed byANANT R
JUDGE
SARKATE
Signing Date:21.06.2022 Sarkate
18:42
