Decided on October 24,1972

Sadhusingh Respondents


B.A. Masodkar, J. - (1.) The State has appealed against the acquittal of accused Sadhusingh for an offence punishable under section 66(1)(b) of the Bombay Prohibition Act, 1949 (hereinafter called the Act). The learned Magistrate who tried the accused found that the prosecution evidence adduced in the case was insufficient to prove that the seized dabkis contained nothing but liquor. He also recorded a finding that the dabkis which were seized in the case were in the possession of the accused.
(2.) So, the narrow question is whether upon evidence it is possible to take a view that the prosecution has established that the content of the dabkis was prohibited liquor and, therefore, the accused was guilty of the offence punishable under section 66(1)(b). The possession of the dabkis cannot be seriously disputed. The only question is how the prosecution has proved that the dabkis contained the prohibited liquor.
(3.) The whole effort on the part of the prosecution to establish this must necessarily relate to the samples being taken from the dabkis and being forwarded for the purpose of analysis to find out the nature of the contents. P.W. 6 Hariomdatta stated that be bad taken the property pertaining to this offence, i.e. two sealed bottles, to the Chemical Analyser at Bombay and had handed over the same on February 22, 1966. P.W. 5 Pundlik who appears to be the panch stated that samples were taken separately in two separate bottles and the bottles were sealed in his presence. The dabkis were opened in his presence and Exh. 8, which is the panchanama, was prepared to which he has subscribed. Panchanama, though not a substantive piece of evidence, is produced and proved properly and it states that two dabkis, which were sealed, were opened in the presence of the panchas and about 3 chhataks of liquor was taken out from the big dabki and similar quantity from another, and was put in bottles which were also sealed.;

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