Amin Bin Mohammed Arab vs State Of Gujarat
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Gujarat High Court

Amin Bin Mohammed Arab vs State Of Gujarat on 10 January, 2024

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     R/CR.RA/151/2012                           ORDER DATED: 10/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 151 of 2012

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                        AMIN BIN MOHAMMED ARAB
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR HK PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 10/01/2024

                             ORAL ORDER

1. By way of this Revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), the Revisionist seeks to challenge the order dated 29.09.2006, passed by the learned Judicial Magistrate, First Class, Kodinar, in Criminal Case No. 366 of 2002, whereby, the Revisionist is convicted for the offence punishable under Section 66B of the Bombay Prohibition Act and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.1,000/- and in case of default, to undergo further simple imprisonment for three months as well as the order dated 20.03.2012, passed by the learned Additional Sessions Judge, Una, in Criminal Appeal No. 09 of 2012 (Old Appeal No. 19 of 2006) and confirmed the judgment and order passed by the learned JMFC Court.

2. The brief facts of the case are that an FIR, being C.R. No.

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III-150/2002, came to be lodged with Kodinar Police Station for the offence punishable under Sections 66B, 65 A, E, and 116(2) of the Prohibition Act. After the investigation was over, the concerned IO filed the charge-sheet before the Court of the learned JMFC, Kodinar, whereupon, the same was registered as Criminal Case No. 366 of 2002. Since, the Revisionist did not plead guilty, the learned JMFC, Kodinar, proceed to record the evidence and on completion of the same, passed the judgment and order of conviction dated 29.09.2006.

2.1 It appears that, being aggrieved and dissatisfied with the same, the Revisionist preferred Criminal Appeal No. 09 of 2012 (Old Appeal No. 19 of 2006) before the Sessions Court, which, in turn, dismissed the same, while confirming the judgment and order passed by the learned JMFC Court dated 29.09.2006.

Hence, the present Revision is filed.

3. Learned Advocate, Mr. Dagali, appearing for the Revisionist submitted that both the Courts below have failed to consider the fundamental principles of criminal jurisprudence that an accused shall be held to be innocent, till he is not found to be guilty of the offence alleged against him / her. It was submitted that the both the Courts below have passed the impugned orders on extraneous grounds. While taking this Court through the impugned order of the learned JMFC Court, it was submitted that the same is passed only on the basis of the depositions of the police witnesses, who are interested witnesses, and no independent witness was examined by the

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prosecution to prove its case. It was submitted that there is no evidence to show that Indian Made Foreign Liquor ('IMFL', hereinafter) was recovered from the conscious possession of the Revisionist. It was, therefore, submitted that this Revision application be allowed.

4. On the other hand, learned APP, Mr. Patel, strongly opposed this Revision and supported the judgment and orders passed by the Courts below. It was submitted that the prosecution produced cogent and convincing evidences on record to prove its case and therefore, the Courts below have rightly passed the impugned orders. It was submitted that the Courts below have recorded that the Revisionist was found to be in the conscious possession of 284 bottles of IMFL and hence, no interference is called for with the impugned orders. It was also submitted that the learned JMFC Court rightly relied on the provisions of Section 106 of the Indian Evidence Act. It was submitted that, at the time of raid, as the Revisionist had fled from the scene of offence, it cannot be said that no offence is committed. It was, therefore, prayed that this Revision application be dismissed.

5. Heard, learned Advocates for the parties and perused the material on record. At the outset, it would be relevant to refer to the findings arrived at by the learned JMFC Court, while taking recourse to the provisions of Section 114E of the Indian Evidence Act, so as to apply the principle of presumption against the Revisionist, herein. The learned JMFC Court also believed the deposition of the police witnesses that when, they

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raided the shop in question, the Revisionist fled from the scene of offence. It is also observed that the Revisionist failed to give any explanation with regard to the muddamal seized by the police. The learned JMFC Court, further, recorded that as the Revisionist failed to explain her conduct, post commission of the offence, she is held to be guilty and on the basis of such considerations, the Revisionist came to be convicted.

5.1 It may be noted that the learned Sessions Judge went a step further and employed the provisions of Section 106 of the Indian Evidence Act to held that, since, the accused-Revisionist showed no objection when she was arrested and as the huge quantity of IMFL bottles were seized from the shop, alleged to be owned by the Revisionist, the learned JMFC Court committed no error in passing the order of conviction and thereby, confirmed the said order.

5.1.1 So far as the presumption under Section 116B of the Prohibition Act is concerned, it is not in dispute that when the bottles of IMFL were seized, they were in seal-pack condition and they also had their original labels on them. In view of the same, the presumption under Section 116B of the Prohibition Act is made.

5.2 From a perusal of the material on record, it is revealed that both the Courts below have given improper reasons, de hors the very fundamental principle of criminal jurisprudence that unless a person is proved guilty, he / she is deemed to be innocent and therefore, it was the duty of the prosecution to

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lead cogent and credible evidence, since, conjectures and surmises cannot be made basis for conviction. Further, the evidence produced or led by the prosecution should prove its case beyound reasonable doubt, against the concerned accused person. Unfortunately, there is nothing on the record to show that the prosecution successfully proved that the shop, from which the bottles of IMFL were seized, belonged to the Revisionist. Further, the prosecution also does not appear to have led any cogent evidence, so as to attract the presumption under Section 116B of the Prohibition Act and to believe that the bottles of IMFL contained original labels and their seals were in tact. In the considered opinion of this Court, there appears to be total non-application of mind on the part of the Courts below in applying the provisions of Section 106 and 114E of the Indian Evidence Act and to make the accused- Revisionist to disprove the case of the prosecution. As stated above, conviction cannot be based solely on the evidence of police officials, who are interested witnesses and therefore, in absence of any independent witness or evidence, the orders passed by the Courts below cannot be sustained.

6. For the foregoing reasons, the present Revision application is ALLOWED. The impugned order dated 29.09.2006, passed by the learned Judicial Magistrate, First Class, Kodinar, in Criminal Case No. 366 of 2002, as well as the order dated 20.03.2012, passed by the learned Additional Sessions Judge, Una, in Criminal Appeal No. 09 of 2012 (Old Appeal No. 19 of 2006) are hereby quashed and set aside.

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6.1 The bail bond of the Revisionist is discharged. The Revisionist is ordered to be released, if she is in custody and if she is not required in connection with any other case. The amount of fine, if any, paid by the Revisionist shall be refunded to her, on production of original receipts. Rule is made absolute, accordingly. Direct Service is permitted.

(J. C. DOSHI,J) UMESH/-