State of Gujarat vs Somabhi Punabhai Bhangi

M.D. Shah, J.

1 This appeal is filed by the State against the judgment and order dated 30.11.2004 passed in Criminal Case No. 4453 of 1995 by the learned Chief Judicial Magistrate, Gandhinagar, where by the learned Judge acquitted the accused.

2 The brief facts leading to filing of this appeal are such that on 10.9.94, when the complainant Ranchhodji Varsangji, Police Constable, Sector 21 Police Station, Gandhinagar was on duty, the applicant Savitaben Somabhai Bhangi, resident of Sector 20 Chhapra, Gandhinagar gave an application and stated in the said application that her husband Somabhai is creating nuisance by drinking liquor. On the basis of this application, the complainant went near the Chhapra situated in Sector 21 and saw that one person was moving around on the road. On catching hold of him and asking his name and address in presence of two panchas, he stated his name as Somabhai Punabhai Bhangi, resident of Sector 20, Chhapra, Gandhinagar and there was smell of liquor coming from his mouth and his eyes were also very red and on asking him about the pass permit for drinking liquor, he said that he did not have the same and therefore the said person was arrested and a complaint was filed against the said accused under Sections 85(1)(3), 66(b) of Bombay Prohibition Act.

At the end of investigation, the charge sheet was filed against the accused and the Court recorded plea of the accused wherein he pleaded not guilty and claimed to be tried. The prosecution examined seven witnesses including the complainant, Medical Officer, Panch witnesses and Investigating Officer to prove the case against the accused. At the end of trial, the learned Judge passed the impugned judgment and acquitted the accused against which this appeal is filed by the State.

Heard learned APP for the State and perused the paper book and other relevant papers.

As per the deposition of P.W.5 Dr. Pursottambhai Punjalal Patel at Exh.26, he examined the accused on 10.9.94 at 6.20 hours in the evening and he took blood from the vein of the accused and certified the state of his body as `A''. He stated that the smell of alcohol was coming from the breath of the accused and his language was fine. As per the opinion of this witness, the accused had consumed liquor. He submitted that he collected the blood and kept in five bottles which were supplied by the laboratory of the hospital. Nothing has come out from his evidence to show that how he prepared the phial but he simply stated that there was preservative in the phial provided by the laboratory. It has come from the deposition of witness Pallaviben B Thakar who has performed the analysis of the blood collected from the accused that there was 0.1573% ethylalcohol in the blood. The panch witnesses have turned hostile.

It is to be noted that the learned trial Court has not given any cogent reasons for acquitting the accused but only held that Savitaben-wife of the accused who gave application was not examined and the panchas have also turned hostile and therefore acquitted the accused. But as discussed above, when the doctor who has examined the accused and collected the blood from the body of the accused did not disclose regarding how the phial was prepared and which preservative was used for reserving the blood, in opinion of this Court, the prosecution has failed to prove beyond reasonable doubt the charges levelled by the prosecution against the accused.

In view of the above, the appeal deserves to be dismissed and is accordingly dismissed.