LexBHAGWANBHAI DULABHAI JADHAV versus STATE OF MAHARASHTRA
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386 SUPREME COURT REPORTs ti 983) 1061 BHAGWANBHAI DULABHAI JADHAV -- Ju!J ~4. !! • STATE OF MAHARASHTRA (B. P. SINHA, C. J., K. N. WA.NOHOO and J.C. SHAH, JJ.) Prohibition-Transport of contraband articles by motor vehicle-Witnes•es to Bearch, if mU81 b<long to the locality-Ap~ t&l against acquitlal-Presumption of innocence-Power of H•gh Court-Bombay Prohibition Act, 19'9 (Bom, 25 of 1949), ••· 65 (e} 11, 88, 117-Code of Criminal Proced,ure 1898 (Act V of 1898) ••• 102,103. The two appellants, who were tried along with there others, were acquitted by the Judicial Magi1trate of chara:es under ss. 65(a) ,66(b},81 and 83 of the 'Bombay Prohibition Act, l 9-l9, but were convicted by the High Court in appeal by the State. The Magistrate found that the prosecution evidence was insufficient to establish conspiracy or abetment in transporting the con<raband liquor and tobacco found in the car on search. The High Court took a different view of the evidence and allowed the appeal so far as the appellants and another were concerned. It' was urged on behalf of the appellants that the search was in contravention of 1.103 of the Code of Criminal• Procedure and the finding of the contraband articles had not been proved. Ileld,, that a motor car was not a •place' within the meaning of ss.102 and 103 of the Code of Criminal Procedure or the Bombay Prohibtion Act, 194-9, and S. 103 of the Code had therefore no application to a search of a motor vehicle. Consequently, it was not obligatory upon the Police Officer to comply with the formalities prescribed by that section nor upon the Court to discard the Panchnama or the evidence of the finding of the articles where no witnesses of the locality could be called. Although the High Court in the present case was right in convicting the appellants under s. 66 (b) of the Prohibi· tion Act conviction under ss. 65 (a) 81 and 83 of that Act was ,;,ot sustainable and must be set aside. The Magist• rate was in error in discarding the entire evidence becau1e of discrepencios therein without appraising its intrinsic vo.lue. 3 S.C.R. SUPREME OOURT REPORTS 387 'Held, further that the Code of Criminal Procedure places . no special limitation on the powers of the High Court in deal- ing with'an appeal against acquittal. It can review the evi- aenee and·arrive at its own conclusion. The presumption of inno1ence applies with equal, if not greater force in such an appeal and the burden of proving its own case lying as always on the prosecution. The High Court would not therefore lightly disturb findings arrived at by the trial court on appre- ciation of the oral evidences CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.56 '61. Appeal by special leave from the judgment and order dated August 16, 1'960, of the Bombay High Court in Cr. A. No. 225 of 59. B. B. Tawakley and A. G. Ratnaparkhi, for the appellants. M. S. K. Sastri and P. D. Menon, for the res· pondent. 1962. July 24. The judgment of the Court was delivered by SHAH, J.-With special leave, the two appellants Bha.gwanbhai Dulabai Jadav and Haribhai Magan- bhai Bhandare-hereinafter referred to as accused Nos. l and 5 respectively-have appealed against the order passed by the High Court of Judicature at B'>mbay setting aside the order of the Judicial Magistrate, First Class, Thana acquitting them and three others of offences punis'l:iable under ss. 65(a), 66 (b), 81 and 83 of the Bombay Prohibition Act, 25 of 1949-hereinsfter called the Act. The case of the prosecution maibriefly be stated: On August 25, 1957, a. "wireless message" alerting the officers pJsted on "watch duty" at Kasheli Naka, ·District Thana that a motor-car bearing No BMY 1058 •belonging to the first appeal- lant was carrying '~oontrii.band goods'','was received. This moter car reached the Ko.sheli Naka at about • f I , • · . , . 1'62 llha1111an1'h•i Bulaih•i J •iA•1J v. Stal1 •f Maharashtra Shqh J. Bhagwanbhai Dulabhai J ti.dhav •• Stole of Maharashtra Shah J. 388 SUPREME COURT REPORTS [1963) 2.30 p.m. on August 28. The first accused Wat then driving the oar. the second accused was sitting by his side and accused 3 to 5 were sitting in the rear se~ts. Panchas were called by the Sub-Inspector of police Deshpande from a village nearby and in their presence the vehicle was searched and from the luggage compartment (which was opened with the key found on search on
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