V.S. Kotwal, J.
1. On May 7, 1981 when the darkness was set in the evening at about 7 p.m. the complainant Head Constable Patil, who attached to Task Force went to village Nagaon in Raigad District. They went near the temple and parked the jeep and walked down some distance when they noticed one person sitting under a Banyan tree with a glass and can. That person was apprehended on the spot and it was disclosed that can contained illicit liqour. The sample was taken in a bottle and it was sealed and it is after few days that it was sent to the Chemical Analyser, who certified it to contain 27% V.V. ethyl alcohol which was not tolerable or medical preparation. The person found is the accused, who was ultimately charge sheeted for an offence under section 66(1)(b) of the Prohibition Act.
2. The learned trial Magistrate convicted him on that charge and sentenced him to suffer R.I. for three months and to pay a fine of Rs. 500/- or in default R.I. for one month.
3. Criminal Appeal No. 38 of 1981 directed against the order was dismissed by the learned Sessions Judge, Raigad on August 31, 1982. An exception is being taken to that order of conviction and sentence in this proceeding.
4. Shri Vilas Kamat, the learned Counsel for the petitioner, mainly submits that several material features are ignored by both the courts below and as such this would be a proper case to upset the impugned order even in revisional jurisdiction. Shri S.B. Patil, the learned Public Prosecutor for the state, supports the order of conviction and sentence and contends that apparently there is no reason to discard the prosecution evidence.
5. It is true that there are limitations when revisional jurisdiction is being invoked. However, on going through the record it does appear that several material features are either ignored or are not considered at all, and those infirmities are quite material and, therefore, this is a fit case where even in the limited jurisdiction the impugned order cannot be sustained.
6. The evidence mainly consists of Head Constables Patil and two panch witnesses, Pandurang Satane (P.W. 2) and Sultan Patel (P.W. 3). Pandurang has not supported the prosecution in its entirely and he was disowned and cross examined by the prosecution. His evidence is very cryptic and does not advance the prosecution case. There are obvious infirmities in the evidence of other two witnesses which are not considered by the courts below. The foremost is that the Courts below have proceeded on an erroneous assumption and wrong reading of evidence that accused was actually holding a can and as such was found in physical possession of the contraband. On the contrary, the evidence of panch Sultan Patel makes it very clear that there was nothing in the hand of accused and there was no re-examination on that point. Since the prosecution wants to rely on that evidence we have to accept that part also. Thus the most vital link is missing. Therefore, merely the Head Constable suggesting that he saw the accused with the can would not be sufficient. There is also discrepancy as to whether the accused was sitting or standing at the relevant time. There is further discrepancy to the effect that Head Constables asserts that the accused did not move at all but was apprehended on the spot while the panch asserts that the accused not only moved but ran some distance and he was chased by several constables and brought back to the spot. This panch witness who was moving in the market, was picked up by the police and thus cannot be said to be the natural witness as claimed by the prosecution. It would thus be clear that it is not established that the accused was really in possession of the illicit liquor. At the most the article was lying in open space accessible to all.
7. The panch witness makes a tall claim that the panchanama was scribed on the spot in the light of the torch that was flashed. This claim is obviously not acceptable since even on a cursory persual of the panchanama the claim is exposed as it appears from the very neat manner of scribing the panchanama. It is also clear that it was dark at that time and all the details could not be observed even by the member of the raiding party. The said members walked quite for some distance during which period the accused could have easily bolted from the spot. No customer or any other persons was seen near about nor any watch was kept on the activities of the accused. Under the circumstances, therefore, it is not quite safe to accept this evidence to hold that the accused was in conscious possession of the contraband.
8. A grievance is also rightly made by Shri Kamat that the sample bottle was forwarded to the Chemical Analyser nearly after 28 days during which period it was lying at the Police Station in the midst of other property including the articles which were directed to be disposed of. No one from that office is examined nor any register is produced and, therefore, to some extent it is rightly relied on the ratio of the decision of this Court as referred to by the Lower Appellate Court that there may not be any guarantee that the same bottle was really sent. The Head Constable is unable to explain the same and he himself has no knowledge as to in what condition the bottle was lying in that police station. This, therefore, is an additional ground.
9. Having regard to all these features the minimum that can be said is that it would rather be hazardous to record conviction. The impugned order therefore, deserves to be set aside even in the revisional jurisdiction.
10. In the result, rule is made absolute. The impugned order of conviction and sentence recorded by the trial Court and confirmed by the learned Sessions Judge is set aside, and the petitioner is acquitted of all the charges levelled against him.
11. The fine, if paid, be refunded to the petitioner. His bail bonds stand cancellation.