The State of Gujarat vs Bhatt Ashit Hariharkumar

S.R. Brahmbhatt, J.—Heard learned APP for the appellant. None is present for the respondent, though served.

The appellant-State of Gujarat has preferred this appeal u/s 378 of Criminal Procedure Code challenging the order of acquittal dated 7/5/2004 passed by learned JMFC, Gandhinagar in Criminal Case No. 633 of 1995, acquitting the respondent/original accused of the charge of committing offence u/s 85(1)(3) and 66(1)B of the Bombay Prohibition Act. The case of the prosecution before the Court was that the accused was caught on 5/12/1994 at 23.00 hours in an inebriated condition and he did not possess the permit for consuming alcohol. As he appeared to be under the influence of alcohol, he was proceeded against for committing offence u/s 85(1)(3) and 66(1)B of the Bombay Prohibition Act (''Prohibition Act'' for short). The court after recording evidence and appreciating the same came to the conclusion that there was serious lapses noticed on the part of the doctor who collected blood and sent it for examination. After recording lack of evidence with regard to lack of complete compliance with provision of Rule 4(1) of the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 (hereinafter referred to as the ''Prohibition Rules'' for brevity), the court came to the conclusion that the accused deserved to be given benefit of doubt, and accordingly accused was acquitted of the charge of committing offence punishable u/s 85(1)(3) and 66(1)B of the Prohibition Act vide order dated 7/5/2004, which is impugned in this appeal u/s 378 Cr.P.C.

Learned APP Ms. Shah has taken this Court through the order impugned as well as the original record that includes police report, the charge, testimony of the prosecution witnesses and accused statement recorded u/s 313 Cr.P.C. She submitted that though panchas did not support entirely the case of the prosecution, doctor''s evidence could not have been treated to be an evidence lacking veracity for establishing compliance with procedure for taking blood from the accused. However she could not controvert from the record the glaring discrepancies recorded in the testimony of the doctor, P.W. No. 1.

P.W. No. 1 the doctor, Exh. 11, has said that he had examined the accused at 0.20 hrs on 6/12/1994 and he was smelling of alcohol and the person was steady and the eye condition was normal. This testimony of doctor wold therefore naturally deal serious blow to the allegation of committing offence u/s 85(1)(3) & 66(1)B of the Prohibition Act. The doctor has testified that the blood sample was collected in the phial containing anticoagulant preservative which is available in his locker and which was prepared by himself. He also deposed with regard to affixing of seal of the phial and applying of hospital seal thereof. In his cross examination doctor has deposed that the phial was handed over to MNC clerk in the morning. The phial was sent but in which content was not known to him. He also admits in his cross examination that before taking the blood from the accused, 5 minutes ago he had taken blood sample from someone else also. He also admitted in his cross examination that he does not remember as to how many days ago the phial was prepared. He also admitted in his cross examination that he has not kept any register nor does the hospital keep any register in respect of preparation of phials nor does the phial is containing its date of preparation. He admits that there is laboratory departmental in Civil Hospital and technicians also. He also admitted that the anti coagulant and preservatives are kept in the custody of laboratory technician. He pleaded his ignorance with regard to phial being prepared by laboratory technician. He admitted that he had asked the concerned nurse for getting into coagulant preservative. But he did not have any knowledge where from she brought the same. He admitted that preservatives are put in phial in a prescribed manner and proportion and in the same breath he admits that he did not have any instruments in his chamber for pouring potassium solvent and mercury chloride. He admits that pure preservatives are required to be added and he pleaded ignorance with regard to they being refined or not.

The rest of the testimony of the other witnesses would be of no importance at this stage.

Looking to the testimony of the doctor and the discrepancies noticed herein above would go to show that the order of acquittal needs no interference u/s 378 of Cr.P.C. Hence the appeal fails and is accordingly dismissed. Bail bond shall stand cancelled.