JUDGEMENT
B.J.DIVAN -
(1.)This appeal has been filed by the State of Gujarat against the order of acquittal passed by the learned Judicial Magistrate First Class 2 Court Broach in Summary Criminal Case No. 835 of 1968 of his Court. The respondent is the original accused and he was charged under sec. 66(1)(b) and sec. 85(1)(3) of the Bombay Prohibition Act hereinafter referred to as the Act. Charge under sec. 65(1)(b) is in connection with consumption of intoxicant or alcohol and under sec. 85(1)(3) is in connection with being found drunk without being the holder of a permit. The learned Magistrate found the accused not guilty for both the charges and thereafter the State has preferred this appeal.
(2.)The prosecution case against the accused was that on June 27 1968 police constable Fatehsingh Kesarisingh of Task Force Broach had gone to village Taria for a prohibition raid along with other police constables accompanied by panchas. The police party went to the Bhilwada of the village at about 6 P.M. At that time on seeing the police arriving the accused began to walk away very fast and so police constable Fatehsingh suspected the accused of having consumed alcohol and the accused was caught by the police. The prosecution case is that the mouth of the accused was smelling of alcohol and he was found to be drunk. Immediately a panchnama of the physical condition of the accused was drawn up and thereafter the accused was sent to the Civil Hospital Broach. At the hospital Dr. A. H. Pathak examined the accused at 12-15 A.M. that is after the mid-night and in the vary early hours of June 28 1968 Thereafter Dr. Pathak issued the necessary certificate regarding the examination of the accused. Dr. Pathak took a sample of 5 c.c. of venous blood from the person of the accused for the purpose of analytical examination. On June 28 1968 a phial containing the blood sample was sent by registered post to the Chemical Analyser at Junagadh. This phial was received by the chemical analyser at Junagadh on July 8 1968 The said sample was analysed on July 9 1968 and it was ascertained by the Chemical Analyser that the sample contained O. 1403 percent W/v of ethyl alcohol. The report of the analysis was forwarded by the Chemical Analyser to the Civil Hospital at Broach and it was then forwarded to the appropriate police station. Thereafter the accused was chargesheeted before the learned trial Magistrate.
(3.)The learned Assistant Government Pleader who appeared for the State at the time of the hearing of this appeal before me has very rightly stated that in view of the medical report of Dr. Pathak which says that though the breath of the accused was smelling of alcohol his speech gait and pupils were normal and in view of the fact that the accused was not under the influence of alcohol it was difficult to sustain the charge under sec. 85(1)(3) of the Act. He however contended that the learned Magistrate was in error in acquitting the accused of the offence punishable under sec. 66(1) of the Act. He contended that in view of the Chemical Analysers report the presumption as required by sec. 66(2) the Bombay Prohibition Act should have been raised against the accused and the accused should have been convicted.
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