M.P. Kanade, J.
1. The petitioner was prosecuted for offence under section 66(1)(b) of the Bombay Prohibition Act in a Summary Case No. 180/1981. It is alleged by the prosecution that the petitioner was found dealing in liquor behind the temple of Kholaba at village Anjangaon, Taluka Madha, District Solapur in the evening on January 14, 1980. The police party was on patrolling duty and they received an information about the said dealing in illicit liquor. A raid was conducted and the petitioner was found with a liquor can and a glass and it is, thereafter, that the sample was taken and was sent to the Chemical Analyser and after the receipt of the report from the Chemical Analyser, the prosecution was launched against the accused.
2. The accused pleaded not guilty to the charge framed by the learned Magistrate. On consideration of the evidence on record, the learned Magistrate, by his order dated August 6, 1981, was pleased to convict the petitioner under section 66(1)(b) of the Bombay Prohibition Act and sentenced him to suffer rigorous imprisonment for 4 months and to pay a fine of Rs. 750/- or in default to rigorous imprisonment for 3 months. This conviction and sentence was challenge before the learned Sessions Judge, Solapur. The learned Judge of Solapur was pleased to dismiss the appeal by judgment and order dated July 12, 1982.
3. Mr. P.S. Patankar, the learned Counsel, appearing on behalf of the petitioner contended that the prosecution has failed to establish that the Chemical Analyser's report was in respect of the bottles seized or attached in the raid and that the accused was in possession thereof. Mr. Patnakar pointed out a number of infirmities in the case. It is contended by Mr. Patankar that there was no C.R. number put on the label at the time of the Panchanama. It was stated that the paper seal was put on the attached goods while sending the same to Chemical Analyser, but it was found that there was a wax seal. The person who carried the articles to the Chemical Analyser has not been examined. Even his statement was on recorded by the police. The muddemal article itself was not produced, even though asked for. And lastly it is pointed out that the Investigating Officer Dattoba More (Police Jamadar) who is examined as P.W. 3, admitted in the cross-examination that he had overwritten No. '7' of Cr. No. 47, on No. '6' at Ex. 8. There is much substance in this contention. A number of infirmities shown by the learned Counsel creates a doubt as to whether the articles said to be in possession of the accused were really sent to the Chemical Analyser. If there is a doubt the benefit must go to the accused. The admission on the part of Dattoba More (Police Jamadar P.W. 3) that he had over written No. '7' of Cr. No. 47, on no. '6' at Ex. 8 re-enforces that doubt whether really same goods were sent to the Chemical Analyser for examination. In the said circumstances it is not possible to hold that the prosecution has proved nexus with the report and the articles attached during the raid. In view of this infirmity and a serious doubt about as to the report of the Chemical Analyser the petitioner should get the benefit of doubt.
4. Accordingly, the revision application is allowed and the rule is made absolute. The order of conviction and sentence passed by the learned Sessions Judge, Solapur dated July 12, 1982, in Criminal Appeal No. 128 of 1981, confirming the order of conviction and sentence, passed by the learned Judicial Magistrate, First Class, Karmala (on deputation at Madha) dated August 6, 1981 in Criminal Case No. 183 of 1981, is set aside. Accordingly, the accused is acquitted. His bail-bond stands cancelled. If fine is paid, the same may be returned to the accused.