Bhagwanbhai Dulabhai Jadhav vs State Of Maharashtra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 56 of 1961

Decision Date: 24 July 1962

Coram: Shah, J.

In the matter Bhagwanbhai Dulabhai Jadhav versus the State of Maharashtra, the Supreme Court of India delivered its judgment on 24 July 1962. The petition was filed by Bhagwanbhai Dulabhai Jadhav, who is identified as the petitioner, and the State of Maharashtra was the respondent. The case concerned the provisions of the Bombay Prohibition Act of 1949, specifically sections 65(b), 81, 83 and 117, and also invoked sections 102 and 103 of the Code of Criminal Procedure of 1898 (Act V of 1898). The issues that arose involved the prohibition of transporting contraband articles by motor vehicle, the question of whether witnesses to a search must belong to the locality, the effect of an appeal against an acquittal, and the application of the presumption of innocence together with the powers of a High Court on such an appeal. The headnote records that two appellants, tried together with other accused persons, had been acquitted by a Judicial Magistrate of charges under sections 65(a), 66(b), 81 and 83 of the Bombay Prohibition Act, 1949. The State appealed, and the High Court, overturning the magistrate’s order, convicted the appellants and one other accused. The magistrate had concluded that the prosecution evidence did not establish either a conspiracy or any abetment in the alleged transport of contraband liquor and tobacco that were discovered during the search of the motor‑car. The High Court, however, re‑examined the material and reached a different conclusion, affirming conviction of the appellants. The appellants argued that the search violated section 103 of the Code of Criminal Procedure and that the contraband items had not been duly proved. The Supreme Court held that a motor‑car does not constitute a “place” within the meaning of sections 102 and 103 of the Code of Criminal Procedure, nor under the Bombay Prohibition Act, 1949; consequently, section 103 of the Code was inapplicable to the search of a motor vehicle. Accordingly, the police officer was not required to observe the formalities prescribed in that section, and the trial court was not bound to discard the panchnama or the evidence of the seized articles merely because local witnesses could not be produced. The Court further observed that the conviction of the appellants under section 66(b) of the Prohibition Act could not be sustained, and that the High Court erred in discarding the entire evidentiary record on account of discrepancies without assessing its intrinsic value. The Court also clarified that the Code of Criminal Procedure imposes no special limitation on the powers of a High Court when hearing an appeal against acquittal; the High Court may review the evidence and form its own judgment. The presumption of innocence remains fully operative in such an appeal, and the burden of proof continues to rest on the prosecution. Hence, the High Court should not lightly disturb the findings of the trial court when those findings are based on a careful appreciation of oral evidence. This judgment was rendered in Criminal Appeal No. 56 of 1961, an appeal by special leave from the Bombay High Court’s order dated 16 August 1960 in Criminal Appeal No. 225 of 1959, with counsel appearing for both the appellants and the respondent.

In this case the judgment was delivered by Justice Shah. With special leave the two appellants, Bhagwanbhai Dulabai Jadav and Haribhai Maganbhai Bhandare, who are identified as accused Nos. 1 and 5, appealed the order of the Bombay High Court that had set aside the order of the Judicial Magistrate, First Class, Thana acquitting them and three others of offences punishable under sections 65(a), 66(b), 81 and 83 of the Bombay Prohibition Act, 1949. The prosecution case may be summarised as follows: on 25 August 1957 a wireless message was received by officers on watch duty at Kasheli Naka, District Thana, informing them that a motor‑car bearing the registration BMY 1068 and belonging to the first appellant was carrying contraband goods. The motor‑car arrived at Kasheli Naka at about 2‑30 p.m. on 28 August. At that time the first accused was driving the vehicle, the second accused was seated beside him and accused Nos. 3 to 5 occupied the rear seats. Sub‑Inspector Deshpande of the police called a group of Panchas from a nearby village and, in their presence, the vehicle was searched. The luggage compartment was opened with a key that had been found on the person of the fifth accused. From the compartment the police recovered forty‑three sealed bottles of foreign liquor and a large number of packets of tobacco. A search list was prepared and the five occupants of the vehicle were arrested. The vehicle and the seized articles were attached, and the vehicle was handed over to the Central Excise Authorities together with the ignition key and the key to the luggage compartment for further action in respect of the tobacco packets. A charge‑sheet was then filed in the Court of the Judicial Magistrate, First Class, Thana charging the five accused with offences under sections 65(a), 66(b), 81 and 83 of the Act. All the accused pleaded not guilty, claiming that the case was false, that no liquor or other contraband was found in the motor‑car, and that the whole plot had been engineered by enemies of the first accused. They denied that the motor‑car had been searched in their presence, and the fifth accused denied that the key to the luggage compartment had been found on his person.

The trial magistrate held that the prosecution evidence was insufficient to establish that the persons before him were acting in conspiracy or abetting each other in transporting contraband articles in the car and consequently acquitted them. The State of Bombay appealed this order of acquittal to the Bombay High Court. The High Court observed that the trial court had treated the case as “a mathematical problem” and had given undue importance to minor discrepancies while examining the evidence. In the view of the High Court, the evidence established that, as a result of information received from the Vapi police‑station, motor‑car No. BMY 1068 was stopped near Kasheli Naka at 2‑30 p.m. on 28 August 1957; that at that time the first accused was driving the car which belonged to him; that the second accused was sitting near him; that accused Nos. 3 to 5 were seated in the rear seats; that the key to the luggage compartment was found on the person of the fifth accused; and that, when the compartment was opened in the presence of the Panchas, forty‑three bottles of foreign liquor and a large number of packets of tobacco were discovered. The High Court therefore concluded that the evidence warranted the conviction of all the accused for offences punishable under sections 65(a), 66(b), 81 and 83 of the Bombay Prohibition Act. Accordingly, the High Court allowed the appeal against accused Nos. 1, 2 and 5 for all the offences, directing each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs 500 for each offence, and providing that, in default of payment of the fine, each offence would attract an additional rigorous imprisonment of three months.

On the afternoon of 28 August 1957, at approximately two‑thirty p.m., a police patrol stopped a motor car near Kasheli Naka. The record showed that the first accused was driving the car, which he owned, and that the second accused was seated beside him while the third, fourth and fifth accused occupied the rear seats. The key to the luggage compartment was later found on the person of the fifth accused. When the compartment was opened in the presence of the five policemen, known as the Panchas, the police discovered forty‑three bottles of foreign liquor together with a large number of packets of tobacco. The High Court concluded that these facts provided sufficient basis to convict all the accused of offences punishable under sections 65(a), 66(b), 81 and 83 of the Bombay Prohibition Act.

The High Court therefore allowed the State’s appeal against the first, second and fifth accused on each of the charges. It sentenced each of them to rigorous imprisonment for one year and imposed a fine of five hundred rupees for each offence. The Court added that if any fine remained unpaid, a further period of three months’ rigorous imprisonment would be imposed for each unpaid fine, and that all substantive sentences were to run concurrently. The appeal against the third and fourth accused was dismissed because the notice of appeal could not be served upon them.

Although the matter concerned an appeal from an order of acquittal, the Code of Criminal Procedure does not place any special limitation on the powers of the High Court to hear such appeals. The High Court is authorised to review the evidence and to arrive at its own conclusions, subject only to the inherent constraints of its appellate jurisdiction. In criminal trials the burden of proof always lies on the prosecution, and the accused enjoys the presumption of innocence until the prosecution establishes guilt beyond reasonable doubt. This presumption of innocence continues to apply with equal, if not greater, force in a High Court appeal against an acquittal.

When applying this presumption, the High Court is understandably cautious in overturning findings that are based on the assessment of oral testimony, because a trial court that has observed the witnesses directly is in a better position to evaluate their credibility than a court that reviews only the written record. In the present case, the High Court correctly observed that the trial magistrate had ignored the overall thrust of the prosecution’s case and had confined his analysis to minor inconsistencies. The magistrate had juxtaposed the testimony of various witnesses on disputed points and, upon encountering any discrepancy, discarded the entire body of evidence. The High Court rightly described this approach as fallacious. The magistrate should have examined whether any reliable evidence existed that could satisfy the prosecution’s burden, rather than rejecting all evidence solely because of inconsistencies, without any attempt to assess the inherent quality of the material presented.

In considering whether the prosecution evidence was reliable, the magistrate would have been justified in turning attention to any other material that contradicted or was inconsistent with the prosecution’s case. However, the court observed that it was unwarranted to discard the entire body of evidence merely because discrepancies existed, without first evaluating the intrinsic quality of each piece of testimony. Sub‑Inspector Deshpande testified that a wireless message had been received at Kasheli Naka reporting the arrival of the motor‑car belonging to the first accused at 2:30 p.m. on 28 August 1957. He further described that the vehicle was searched in the presence of the Panchas and that the search uncovered forty‑three bottles of foreign liquor together with packets of tobacco concealed in the luggage compartment. During cross‑examination, no question was raised that would cast doubt on the veracity of Deshpande’s account, and no satisfactory motive was offered to suggest that he might have fabricated evidence in order to falsely implicate the accused in a serious offence. Deshpande’s testimony was corroborated by the contemporaneous written record known as the “Panchnama,” which documented the details of the search, and by the evidence of the Panch witness Pandu Kamliya. In addition, Head Constable Chodabrey gave partial support to Deshpande’s version. He stated that the motor‑car driven by the accused was stopped at Kasheli Naka and that the Panchas were summoned; however, according to Chodabrey, the search was conducted before the Panchas arrived and the bottles were removed from the luggage compartment and placed on the ground near the vehicle.

The Court agreed with the High Court’s view that, although Head Constable Chodabrey’s statement showed some inconsistency with the testimony of Sub‑Inspector Deshpande and the Panch witness, it nonetheless aligned with their overall narrative that the liquor bottles were present in the motor‑car when it was halted at Kasheli Naka on the day in question. The Court held that this testimony alone was sufficient to establish that the accused were in possession of the foreign liquor bottles. It was submitted, however, that the law required a search to be conducted in the presence of independent local witnesses and that, according to the evidence of Head Constable Chodabrey and Panch witness Laxman Ganpat, the search had been carried out without complying with the formalities mandated by Section 103 of the Criminal Procedure Code. The argument advanced that, because of this non‑compliance, the Panchnama recording the search and the evidence of the seized articles should be discarded, leaving the remaining evidence insufficient to overcome the presumption of innocence reinforced by the acquittal order. The Court rejected that contention. Referring to Section 117 of the relevant Act, the Court noted that, “Save as otherwise expressly provided in this Act, all investigations, arrests, detentions in custody and searches shall be made in accordance with the provisions of the Code of Criminal Procedure, 1898: provided that no search shall be deemed to be illegal by reason only of the fact that witnesses for the search were not inhabitants of the locality in which the place searched is situated.” In view of this statutory provision, the Court held that the absence of local inhabitants as witnesses did not render the search illegal, and therefore the evidence obtained from the search could not be discarded on that ground.

The Court observed that the law required a police officer who was about to conduct a search to summon at least two respectable inhabitants of the locality in which the place to be searched was situated, so that they could attend and witness the search. However, the Court held that a motor‑car could not be treated as a “place” within the meaning of sections 102 and 103 of the Code of Criminal Procedure, and that the Act contained no provision that would classify a motor‑car as such for the purpose of a search. Consequently, the provisions relating to searches contained in section 103 of the Code of Criminal Procedure did not apply to the search of a motor vehicle, and the officer was not legally bound to obey those requirements when searching a motor‑car. The Court clarified, however, that this legal position did not imply that the customary practice followed by police officers in investigations under the Act—namely, keeping respectable persons present during the search of a suspected person or vehicle—should be abandoned. Although the statute did not make the presence of such witnesses compulsory, the Court recognized that police officers, when able, wisely secured the attendance of respectable witnesses, and that this practice contributed to a cleaner investigation and served as a safeguard against the frequent allegation that police officers plant evidence. Counsel for the appellants had vigorously contended that the High Court had failed to give sufficient weight to a piece of evidence that strongly contradicted the prosecution’s case. The contested evidence, according to the appellants, concerned the ignition key and the luggage‑compartment key that had been produced at trial. The Court recalled that the motor‑car, together with the ignition key and the luggage‑compartment key, had been handed over to the Excise Authorities for investigation of a case involving tobacco that was found together with liquor. The Excise Authorities had, at the request of the accused, produced the motor‑car and the keys before the trial Magistrate. An attempt had been made to open the luggage compartment of the motor‑car using one of the keys, and the trial Magistrate had recorded his observations. The Magistrate noted that the keys had been produced by the Sub‑Inspector of Central Excise and that “with the white key the lock of the carrier was tried for thirty minutes; oil was allowed to be put, yet the lock did not open. The yellow key was then tried on the petrol tank and opened immediately.” However, the evidence of Inspector Jambekar indicated that the white key was the ignition key and the yellow key was the key of the luggage compartment. Head‑Constable Chodabrey testified that the white key was the key of the luggage compartment and that the first accused had used that key to open the compartment. The Court expressed puzzlement as to why the trial Magistrate had not made an effort to determine whether the yellow key could open the luggage compartment and whether the white key fitted the ignition switch.

The Court observed that the trial magistrate had not examined whether the yellow key could have been used to open the luggage compartment or whether the white key matched the ignition switch. Because of this omission, the Court found it difficult to accept that the narrative about discovering the key and subsequently finding the liquor after opening the motor‑car’s luggage compartment was false. The Court described the matter before the trial magistrate as straightforward. There was no dispute that police officers had attached forty‑three bottles of foreign liquor at the Kasheli Naka on the day in question. The accused contended that those bottles were not in their possession and that Sub‑Inspector Deshpande had prepared a false panchnama indicating that the bottles had been discovered in the luggage compartment of the first accused’s motor car. The principal issue for the magistrate, the Court noted, was to assess the credibility of the prosecution’s evidence in the context of the defence raised by the accused. The bottles seized by the police were valued at more than Rs 2000, and the magistrate was required to consider whether it was reasonably possible for the police to have obtained the bottles with the intention of falsely implicating the accused, or whether the police could have taken the bottles from another source, allowed that source to escape, planted the bottles in the accused’s car and then fabricated a false panchnama. The Court found that no attempt was made to examine the evidence against the defence that had been set up or suggested. It was alleged that Inspector Mane of Bhilad police station bore animosity toward the first accused, but the Court held that this allegation did not explain Sub‑Inspector Deshpande’s conduct. The Court further observed that it would have been difficult for Deshpande to obtain such a large quantity of foreign liquor, and even if he could, there was no rational reason for him to retain it in anticipation of the first accused’s arrival at the Kasheli Naka. The High Court, after considering the testimony of Sub‑Inspector Deshpande, the panch witness Pandu Kamaliya and Head Constable Chodabrey, concluded that accused Nos. 1, 2 and 5 were guilty of possessing liquor in violation of the Act, and the Court agreed with that finding. However, the Court held that the conviction order and the sentence imposed by the High Court were not in accordance with law. Section 65 of the Act penalises a person who, in contravention of the Act, its rules, regulations, orders, licences, permits or authorisations, imports or exports any intoxicant (other than opium) or hemp, and defines “import” in section 2(20) as the act of bringing an item into the State other than across a customs frontier. The Court noted that there was no evidence on record that any of the accused had imported the foreign‑liquor bottles into the State. The mere circumstance that the bottles contained foreign liquor and that the accused were residents of the former Portuguese territory of Daman, or of a nearby locality, was insufficient to prove that they had imported the bottles.

It was held that the fact that the accused were residents of the former Portuguese territory of Daman or of a nearby locality did not, in the judgment, establish that they had imported the bottles of foreign liquor. The record contained no evidence that any of the accused brought the liquor into the State, and the mere presence of foreign liquor in the bottles was not enough to prove an importation. Consequently, the conviction of the accused under section 65(a) of the Bombay Prohibition Act was found to be erroneous. In addition, the court observed that there was no evidence, nor any consideration by the High Court, that two or more persons had agreed to commit, or had caused the commission of, any offence under the Act. Section 83 of the same Act punished conspiracy to commit an offence, but the facts established in the case—namely that the five accused were found in a motorcar whose luggage compartment contained several bottles of foreign liquor and that some of the accused were blood‑relations—did not allow an inference of conspiracy. Therefore, a conviction under section 83 was not supported by the evidence.

The court further examined the possibility of convicting accused numbers 1 and 5 for abetting an offence that they might have themselves committed under section 66(b) of the Act. It concluded that it was difficult to appreciate how the same persons could be held guilty of both the substantive offence and its abetment. Accordingly, the offence under section 81 of the Act was also deemed not to be made out. The appellants were therefore liable to be convicted only of the offence under section 66(b), for which the maximum penalty for a first offence was rigorous imprisonment for six months and a fine of Rs 1,000. The order of the High Court was modified: the convictions under sections 65(a), 81 and 83 were set aside, and the conviction under section 66(b) was upheld. The sentence for section 66(b) was altered to rigorous imprisonment for six months together with a fine of Rs 500. In case of non‑payment of the fine, the court directed an additional rigorous imprisonment of one month and fifteen days. Subject to this modification, the appeal was dismissed.