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State of Gujarat Vs. Bhimabhai Kalidas Patel - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR745
AppellantState of Gujarat
RespondentBhimabhai Kalidas Patel
Cases ReferredShanwar Manu Koli v. Emperor
Excerpt:
.....convict an accused person. in cases like these, it would be open to the trial court to accept the police evidence and convict the accused if the court was satisfied that the evidence was of a satisfactory character and the guilt of the accused was proved. if after careful scrutiny the court is satisfied that the evidence is such as can be safely acted upon it would certainly be open to the court to act on that evidence. the approach of the learned sessions judge, therefore, is clearly erroneous in this connection. joshi considered by itself was unreliable and did not inspire confidence. his evidence, therefore, is insufficient to connect the accused with the offence even though it is well established in the present case that the accused was present at the time and place of the incident,..........of panchas and the only evidence on which the prosecution ask for a conviction of the accused is police evidence, then certainly the court should not ordinarily act on that evidence. because the law has provided a certain safeguard by way of a panchnama being made and a search taking place in presence of panchas, and, in the absence of that safeguard, it would generally not be safe to convict an accused person. the absence of that safeguard would be prejudicial to the accused, and in most cases that prejudice is apparent in the very fact of doing away with the safeguard provided by the law.5. the division bench has then referred to another class of cases and has observed as under:there is a second class of cases where it is impossible to seize an article or to arrest a person in.....
Judgment:

R.J. Shah, J.

1. This appeal is directed against the judgment and order dated January 9, 1981 passed by the Sessions Judge, Valsad at Navsari in Criminal Appeal No. 58 of 1980 whereunder the order of conviction and sentence dated September 30, 1980 passed by the Chief Judicial Magistrate, Valsad at Navsari in Summary Case No. 77 of 1980 was set aside. The conviction was under Section 66(1)(b) of the Bombay Prohibition Act, 1949 and the sentence imposed was R.I. for three months and a fine of Rs. 500, in default R.I. for one month.

2. The short facts are that P.S.I. Joshi with about 7 persons was on patrolling duty on 7th July 1978 at about 6-35 A.M. For the. said purpose, they had started from Navsari. When they were near Boriach Village on National Highway No. 8, the accused was coming on the road with a gunny bag. Because it was suspected that an offence may have been committed the accused was stopped and it was found that he had in the said gunny bag along with photo frames 21 bottles of liquor of various types. Out of the same, three bottles were taken out as samples. At that time, Rs. 490 were also found on the person of the deceased (sic accused). The said bottles and the said sum of Rs. 490 were seized. A complaint was lodged in that connection which had ultimately ended in acquittal as stated above. Hence the present appeal at the instance of the State.

3. In support of the case, only P.S.I. Joshi was examined at the trial. The complaint given by him is at Exhibit 8. The short notes of the evidence are at Exhibit 6. In his evidence, P.S.I. Joshi has stated that on 7th July 1978 he was serving as a P.S.I. in District Rajkot, (sic Valsad) that on the National Highway near village Boriach accused was found to have a gunny bag in which there were 21 brandy bottles, that on search it was found that he had on his person Rs. 490/, that the bottles contained seal of the company, that the price of the bottles was of about Rs. 300/- to Rs. 350/- and that the accused was the same who was present in the Court. In his cross-examination, he has stated that when the accused was arrested, no truck was standing near him, that no driver was arrested in connection with the case, that the accused was coming towards them walking, that on seeing them he attempted to run but was caught, that some of the persons were in uniform and some were not, that there were no persons near the place where the accused was arrested because it was national highway, that no attempt was made by them to call any panch, and that in the search of the accused Rs. 490 were found which were seized. It is to be noted that nowhere in his evidence, P.S.I. Joshi has stated that the bottles were the same which were seized at the aforesaid time and place. Except stating that the bottles were having the seal of the company, no other particulars regarding the bottles have been given by him in his evidence. In his evidence P.S.I. Joshi has not stated the name of the manufacturer or manufacturers concerning the bottles which were seized. For that matter, even in the rojkam Exhibit 7, the name or the names of the manufacturers of the said bottles have not been stated though in the rojkam the names of different brands of liquor have been stated.

4. In a case such as the present, what should be the proper approach has been aptly set out in Shanwar Manu Koli v. Emperor : AIR1950Bom267 by the Division Bench. The Division Bench speaking through Chagla, C. J. has observed as under:

Where the law makes it obligatory for a search to take place in presence of panchas and a search has not taken place in presence of panchas and the only evidence on which the prosecution ask for a conviction of the accused is police evidence, then certainly the Court should not ordinarily act on that evidence. Because the law has provided a certain safeguard by way of a panchnama being made and a search taking place in presence of panchas, and, in the absence of that safeguard, it would generally not be safe to convict an accused person. The absence of that safeguard would be prejudicial to the accused, and in most cases that prejudice is apparent in the very fact of doing away with the safeguard provided by the law.

5. The Division Bench has then referred to another class of cases and has observed as under:

There is a second class of cases where it is impossible to seize an article or to arrest a person in presence of panchas. Police officers may suddenly come across a working still or they may come across a person on whose person there are incriminating articles and they may have to seize the still or they may have to arrest the person. It is impossible to contend in these cases that the police should not do their duty till they had found some panchas in whose presence they should seize the still or arrest the suspected person. In cases like these, it would be open to the trial Court to accept the police evidence and convict the accused if the Court was satisfied that the evidence was of a satisfactory character and the guilt of the accused was proved.

6. The Division Bench has then proceeded to consider a third class of cases where although the law does not make it obligatory for a search to take place in presence of panchas still in the view of the information already received there is sufficient time for panchas to be called and a seizure to be made in presence of panchas. In this connection, it has been observed that although the law does not make it obligatory, it would be advisable on the part of the police in such cases to raid a place or seize incriminating articles accompanied by panchas. The police should as far as possible avoid any suggestion being made that they have not taken all the precautions which are necessary in order to safeguard the liberty of the subject. If the police do not avail themselves of panchas in the last category of cases, the result would not be that the police evidence must necessarily be discarded and no conviction can be based on that evidence. But the Court must very carefully scrutinize the police evidence which would be the only evidence before it on which a conviction could be based. If after careful scrutiny the Court is satisfied that the evidence is such as can be safely acted upon it would certainly be open to the Court to act on that evidence. Thus, on principle it can be stated that it is possible to convict a person on the sole evidence of a police officer and law does not require that such evidence should be corroborated. In the present case, the learned Sessions Judge has nowhere in his judgment stated that it is not possible as a matter of principle to accept the sole evidence of a police officer. It appears to us that the learned Sessions Judge has not approached the problem from the aforesaid standpoint but has proceeded on the basis that unless corroboration is forthcoming the evidence of a police witness can never be accepted.

7. The present is a case which in our opinion falls in the aforesaid second category as the raiding party had come across a person who was suspected to be carrying articles which might ultimately establish that an offence was committed. In the present case, there is nothing to show that any information regarding the accused had been received by the members of the task force. In a case such as the present, therefore, it was open to seize the articles and arrest the person without the aid of panchas. In such a case, on principle, the evidence of a sole police witness without corroboration can be accepted, but such evidence should stand scrutiny and inspire confidence and the same cannot be discarded only on the ground that it is not corroborated by other evidence. In this connection, it is necessary to mention that the learned Sessions Judge has taken a view that in the present case it was not possible to have panchas in the beginning but then he has proceeded to observe as under:

However, the accused was intercepted on the road and before the search of the bag could be taken, there was the scope for the complainant to call panchas to witness the finding out of the bottles from the said bag. But no attempt was made in that direction and, therefore, lacuna in the prosecution case has not been fulfilled by the prosecution.

In a case falling under the second category, we do not think that it was either necessary under law to have panchas in the beginning or at some later stage before the goods were searched or the person was arrested. The approach of the learned Sessions Judge, therefore, is clearly erroneous in this connection.

8. The learned Sessions Judge has not reached a conclusion that the evidence of P.S.I. Joshi considered by itself was unreliable and did not inspire confidence. In his judgment, the learned Sessions Judge has observed as under:

I agree with the principle that evidence of police officer is not to be discarded nor the evidence of police is to be discredited merely because he is a Police Officer but the evidence of Shri Joshi is not sufficient in view of the peculiar facts that other witnesses had witnessed the search and some of them ought to have been examined to corroborate the say of P.S.I. Shri Joshi which has not been done in this case, and therefore, the evidence of Shri Joshi was not sufficient to hold the accused liable for the offence alleged with.

We are of the opinion that on principle the evidence of P.S.I. Joshi cannot be said to be insufficient because of the aforesaid reasons assigned by the learned Sessions Judge.

Keeping in mind the aforesaid principles propounded in the Bombay decision, it is to be concluded that the approach of the learned Sessions Judge in this connection was totally erroneous.)

9. As stated above, the evidence of P.S.I. Joshi shows that he has not identified in his evidence the muddamal bottles to be those which were seized at the aforesaid time and place. Apart from that, he has nowhere mentioned the names of the manufacturers of the bottles in. question. His evidence, therefore, is insufficient to connect the accused with the offence even though it is well established in the present case that the accused was present at the time and place of the incident, that a seizure was effected and that Rs. 490/-were recovered from the person of the accused. As a matter of fact, accused in his statement has admitted that Rs. 490/- were recovered from him which fact also goes to establish his presence at the time and place of the incident. In the rojkam also, the names of the manufacturers of the bottles in question have not been stated. Section 116B of the Bombay Prohibition Act, 1949 provides as under:

116B. Where in any trial for any offence of unlawful possession of liquor under this Act, it is provided that the accused person was in the possession of any sealed bottle bearing the original label indicating the name of any known brand of spirits, such as whisky, brandy, rum, gin, club cup, liqueurs, milk phunch, or of wines such as champagne, moselle, burgundy, chianti, white wines, clarets, hocks, riesling, meceira, ginger-wine, port type, port vermouth, sherry wincamis vibrona, manola, backfast, tonicine, or of fermented liquors such as ale, beer, milk-stout (porter), cidar, and the name of its manufacturer it shall be presumed that the accused person was in possession of liquor.

10. As per the said section, before a presumption can be raised thereunder, it is necessary to establish in evidence that the sealed bottle was bearing the original label indicating the name of any known brands of spirits and also the name of its manufacturer. It is clear on the record of the case that at least the condition regarding the manufacturer of the bottles in question has not been fulfilled in the present case. It is, therefore, not possible to raise the presumption under the said Section 116B. There is no other evidence in the case which connects the accused with the offence in question.

In that view of the matter, for the reasons stated in this judgment and not for the reasons stated by the learned Sessions Judge, the order of acquittal passed by the learned Sessions Judge is confirmed. The appeal, therefore, fails and stands dismissed.


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