Jignesh @ Pappu Chhagan Mochi Rathod vs State Of Gujarat
2024 Latest Caselaw 1546 Guj

Gujarat High Court

Jignesh @ Pappu Chhagan Mochi Rathod vs State Of Gujarat on 20 February, 2024

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    R/CR.RA/205/2012                               CAV JUDGMENT DATED: 20/02/2024

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL REVISION APPLICATION NO. 205 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1      Whether Reporters of Local Papers may be allowed                   No
       to see the judgment ?

2      To be referred to the Reporter or not ?                            No

3      Whether their Lordships wish to see the fair copy                  No
       of the judgment ?

4      Whether this case involves a substantial question                  No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                  JIGNESH @ PAPPU CHHAGAN MOCHI RATHOD
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1
MS ASMITA PATEL, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 20/02/2024

                             CAV JUDGMENT

1. Present revision application u/s 397 r/w section 401 of the Code of Criminal Procedure, 1973 is filed by the petitioner - accused being aggrieved with the judgment and order rendered

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in Criminal Appeal No.13 of 2012 by the Ld. Addl. Sessions Judge, Una dated 16.04.2012 confirming the judgment and order of conviction & order of sentence passed by Ld. JMFC, Una dated 15.04.2009 passed in Criminal Case No. 701 of 2005, whereby the petitioner - org. Accused was convicted for offences punishable u/s. 66(B). 65(A)(E) and 81 of the Bombay Prohibition Act and sentence for (i) simple imprisonment of 06 months and fine of Rs. 500/- and further S.I. of 15 days in case of in default of payment of fine for the offence under section 66(B) of the Bombay Prohibition Act and (ii) simple imprisonment of 6 months with fine of Rs. 500/- and further S.I. of 15 days in case of default of payment of fine for the offence punishable under section 66(A)(E) and 81 of the Bombay Prohibition Act. All the sentences are ordered to run concurrently.

2. The case of the prosecution was that incident of raid of prohibition of illicit liquor happened on 20.03.2005 at about 3.20 pm. It is the case of the prosecution that on that day, present applicant as well as co-accused were travelling in Maruti Esteem Car No.GJ-1-HH-7734 and they were passing from Una Town and they were coming from Union Territory, Diu. They were intercepted and asked by police persons of Una to stop vehicle, but both the persons did not stop car and ran away towards Bhavnagar side. Therefore, police persons of Una informed police persons of Nageshri police station to intercept said Maruti car and also asked them to inform police of Una. Therefore, police persons of Nageshri Police Station kept watch on road. When car reached near village Hemal, the said car was

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intercepted by police persons of Nageshri police station. On seeing police persons of Nageshri police station, both the persons parked their car behind one society and both the accused tried to run away from that place. They were intercepted and arrested by police and muddamal of illicit liquor i.e. bottle of prohibited foreign liquor worth Rs.9720/- was found under rear seat of car and also from box lying in the car. All these contraband bottles of illicit liquor and maruti car, etc. were attached under panchnama. The police registered FIR and thereafter, applicant and co-accused were arrested.

3. Charge was framed. The petitioner pleaded not guilty and claimed to be tried. Therefore, the case was returned for recording the prosecution evidence. The prosecution has examined witnesses, as also produced documentary evidence. The learned trial Court having appreciated the said evidence recorded the finding as noted in the judgment culminated in conviction as stated supra followed by imposition of punishment as above, which has been unsuccessfully challenged before the first appellate Court and thus present revision is filed.

4. Learned Advocate for the petitioner while assailing the concurrent judgments of the courts below would submit that the the learned Courts below have not properly appreciated the evidence on record. It is submitted that learned Courts below erred in holding petitioner guilty for the offence punishable under section 66(B), 65(A)(E) and 81 of the Bombay Prohibition Act. It is submitted that the petitioner is not found in conscious and actual possession of alleged muddamal. It is submitted that there is no evidence that so-called muddamal alleged to have

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been found from the car are contraband bottles of illicit liquour. It is submitted that there is no report of Forensic Science Laboratory obtained by the investigating officer. It is submitted that panch-witnesses of the panchanama under which contraband illicit bottles of liquor were allegedly attached have not supported the prosecution case. It is submitted that no any independent evidence is led by the prosecution to prove the prosecution case. It is submitted that no any seizure memo is prepared by the police officers, though it is case of police that the muddamal was attached during broad day light on National High way. It is submitted that there is no evidence that the applicant was owner of the muddamal. It is submitted that there is no evidence that petitioner was selling or buying muddmal bottles. It is submitted that the learned Courts below have committed serious error in understanding the law as well as understanding the facts and to analyze the evidence.

5. Upon above submission, learned advocate Mr. Tolia submits to allow this petition.

6. On the other hand, learned APP would submit that the revisional jurisdiction of the Court is very limited. This Court cannot intervene with the concurrent impugned orders until it is stand and proved that the learned Courts below have ignored the basic principles of law and its applicability to the facts of the case. She would further submit that the learned Courts below have appreciated the evidence on record. She would further submit that since there are concurrent findings of facts arrived by the learned Courts below, the finding is germane and could not be disturbed. She would submit that Panchnama at Exh.10

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came to be exhibited on endorsement made by learned advocate for the accused. Panchnama is main evidence which indicates that accused have been arrested with liquor bottles in the car. It is submitted that accused have speedily run through Una city and were arrested at the outskirts of Nageshri Police Station. Since panchnama was exhibited on the endorsement made by learned advocate for the accused, it can be read into evidence and has been rightly considered as evidence by the learned Trial Court and approved by the learned Sessions Court in appeal. She would submit that merely because witnesses are police persons, their deposition cannot be doubted. So their evidence is rightly believed by the learned Trial Court and affirmed by the learned Sessions Court. In these circumstances, it is submitted that the Court in limited jurisdiction under section 397 read with section 401 of IPC should not disturb the concurrent findings.

7. Upon such submission, learned APP would therefore submit to dismiss the revision application.

8. I have heard the learned Advocates for the rival sides at length and have also examined the records and proceedings and also perused the concurrent findings of fact arrived at by the learned Courts below. Having gone through the record what appears that according to prosecution case accused were arrested within jurisdiction of Nageshri Police Station but FIR came to be lodged with Una Police Station. This is stark anomaly which is required to be explained by the prosecution why FIR is registered with Una Police Station when accused are arrested within territorial jurisdiction of Nageshri Police Station.

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No plausible explanation is coming from the evidence of prosecution. It is worth to observe that Maganlal Patel who is first informant was serving as PI, Una Police Station at relevant time. As per his deposition Una Police has received tip that car is coming from Diu loaded with Indian made foreign liquor. They tried to stop car within Una City but the car ran away and that could be stopped within territorial jurisdiction of Nageshri Police Station from where accused were arrested on the spot and it was found that car was loaded with liquor.

9. What more glaring is that other evidence on record are also of police personnel. They have deposed like first informant. Their deposition become suspicion on two grounds. Firstly accused are arrested within territory of Nageshri Police Station, yet FIR came to be lodged in Una Police Station. As stated herein above, this is not explained by any of the witness of prosecution side. Spot of incident from where car was intercepted and accused were arrested with liquor bottles is public place i.e. national highway. Car was told to park near Sardar Patel Awas Housing scheme, still the police could not find out any independent witness whose statement could be recorded and could be examined. Thus, oral evidence of police witness cannot relied solely without having any corroboration. Panchas who were examined at Exh.9 and Exh.11 have turned hostile. They have not supported panchanama at Exh.10.

10. It was argued by learned APP that since endorsement was made by learned advocate for the accused to exhibit panchnama, it would absolve prosecution from proving contents thereof. This submission is totally misconceived. The prosecution itself has

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examined both panchs to prove contents of panchnama at Exh.10. Both of them have turned hostile and did not support the case of the prosecution nor proved contents thereof. Prosecution was also knowing fully well that on endorsement, panchnama can be exhibited but contents thereof cannot be held proved. Panchans deposed only about their signature on the Panchnama. This was sole evidence which could be said to be done in presence of independent witness and it turned sour to the prosecution. Apart from this witness there is no other material available on record to involve accused into accusation.

11. On going through the judgment of learned JMFC, what appears that learned JMFC has passed order on the presumption that police has no reason to do wrong against the accused and therefore, learned Trial Court believed that prosecution has proved the case. This is sorry state of affairs. Findings in Criminal Case is based on surmises and conjunctures and it has no legs to stand. Fundamental canon of criminal jurisprudence demands prosecution to prove case / charge against the accused beyond reasonable doubt. Strange finding was recorded by the learned JMFC that accused has failed to prove that police has no interest in inculpating accused. This findings run contrary to the very fundamental canon of criminal jurisprudence. It is unfortunate that finding arrived by learned JMFC is confirmed by learned Sessions Judge, who added another illegal finding that since accused are arrested with liquor bottles hence, they have to explain that aspect in view of section 106 of the Evidence Act. Learned Sessions Judge failed to notice that both the panchas have turned hostile, no recovery of liquor bottles was proved. So there was lack of

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evidence in proving conscious possession and in such kind of case, section 106 of the Evidence Act cannot be applied. Finding arrived by learned Sessions Court is palpably wrong.

12. So for as presumption under section 116(B) of the Prohibition Act is concerned, this Court in the case of Dhirajlal Gandalal v/s. State of Gujarat [1991 (2) GLH 124] has held that in absence of deposition of panchas supporting case of prosecution, it cannot be presumed that seal and signature on the liquor bottle are made. This judgment has been totally allowed to go by, by the learned Trial and Appellate Court. What appears more that no FSL has been conducted in the present case. Thus, there are plenty of illegality in the impugned orders. Learned Trial Court as well as learned Sessions Court committed serious error in understanding provision of law and passed judgment on surmises and conjunctures without appreciating evidence keeping in mind fundamental canon of criminal jurisprudence. Learned Sessions Judge was expected to re- appreciate the entire evidence, affirmed judgment of learned Trial Court adding section 106 of Evidence Act instead. The judgment of learned Sessions Court also suffers from illegality. Findings and reasoning arrived by both the Courts below are unpalatable. Therefore, this Court needs to interfere in the limited revisional jurisdiction. This Court cannot allow to continue injustice when impugned orders are palpably wrong.

13. In wake of above, the present Revision Application is allowed. Thus, both the judgment and order of the learned Courts below are quashed and set aside. The petitioner - Jignesh @ Pappu Chhagan Mochi Rathod is acquitted of the

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charges levelled against him. Bail bond stands cancelled. The amount of fine if paid shall be refunded to petitioner on proper verification and identification. Record & Proceedings be sent back to the learned Trial Court. Rule is made absolute to the aforesaid extent.

(J. C. DOSHI,J) SATISH