AVADH BIHARI AMRUTLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a Criminal Revision Application filed under Section 401 read with Sec. 397 of the Criminal Procedure Code, 1973 ( in short " Cr.P.C") filed by original accused of Criminal Case No. 1735 of 1983 which was pending on the file of the learned Judicial Magistrate, First Class, Court No.4, Jamnagar (who will be referred to hereinafter as the learned Magistrate). He has, by filing this Criminal Revision Application challenged the correctness, legality and propriety of the judgment Ex.11 dated 24th February, 1989 rendered by the learned Additional Sessions Judge, Jamnagar (who will be referred to hereinafter as the learned Appellate Judge") in Criminal Appeal No. 57 of 1983. By that judgment dt. 24th February, 1989 in Criminal Appeal No. 57 of 1983, the learned Appellate Judge was pleased to dismiss the appeal preferred by the accused i.e.the present Criminal Revision Petitioner and he was pleased to confirm the order of conviction and sentence passed by the learned Magistrate by rendering his judgment in Column No.7 of Summary Form Ex.2 in Criminal Case No. 1735 of 1983 on 12th December, 1983. By that Judgment dt. 12th December, 1983 of the learned Magistrate, accused i.e. Criminal Revision Petitioner was convicted under Sec. 255(2) of Cr.P.Code for offence punishable under Section 66(1)(b) of the Bombay Prohibition Act, 1949 (for short "the Act") and was sentenced to undergo simple imprisonment for four months and to pay a fine of Rs 250/- and I/D of fine, further to undergo simple imprisonment for two months. By that judgment, accused was acquitted for an offence punishable under Sec. 85(1)(3) of the Act.

(2.) The facts leading to this present Criminal Revision Application in a nutshell are as follows:- On or about 5th December, 1982, the complainant Police Constable Shri Ranjitsinh Dipsinh, Buckle No. 1027 of Jamnagar "A" Division, City Police Station, was on duty at S.T.Depot of Jamnagar. One another Police Constable Mahesh Hiralal, Buckle No. 927 was also on duty with complainant. As per the case of the prosecution, at about 10-00 a.m., one person was found in a drunken condition and he was not in a position to take care of himself. His speech was incoherent. Therefore that person was called by complainant ,who in turn asked that person to state his name. That person gave his name as "Avadh Bhihari Amrutlal Brahman of Bagasara " who is present Criminal Revision Petitioner. The complainant called two panch witnesses and a panchnama of physical condition of accused was drawn. After drawing a panchnama of physical condition of accused in between 10-05 a.m. and 10-45 a.m., accused was arrested at 10-45 a.m. Immediately, thereafter he was brought to Jamnagar "A" Division Police Station and complainant lodged his complaint against accused at about 11-15 a.m. That complaint came to be registered as Jamnagar City Police Station CR.No. Prohibition 848/82. The Investigating Officer conducted the investigation on the basis of that complaint lodged by the complainant and ultimately, the Investigating Officer filed a chargesheet in the court of the learned Magistrate on 26th April, 1983. That chargesheet came to be registered as Criminal Case No. 1735 of 1983.

(3.) The learned Magistrate followed the procedure in a summary way under Chapter XXII of the Criminal Procedure Code, 1808 which is equivalent to Chapter 21 of Cr.P.C. Plea of the accused was recorded on 30th June, 1983. Accused pleaded not guilty to the charge. Therefore, prosecution examined four witnesses. Thereafter further statement of the accused under Sec.313 of the Cr. P.C. was recorded on 25th November, 1983. Accused denied the entire case of the prosecution. Thereafter, after hearing the arguments of the learned advocates of both the parties and after appreciating evidence led by the prosecution, the learned Magistrate was pleased to come to a conclusion that case against accused for an offence punishable under Sec. 66(1)(b) of the Act was proved beyond reasonable doubt, and simultaneously, he was pleased to come to a conclusion that case against accused punishable under Sec. 85(1)(3) of the Act, is not proved, and therefore, he, by rendering his judgment dt. 12th December, 1983, convicted accused under Sec.255(2) of Criminal Procedure Code for an offence punishable under Sec.66(1)(b) of the Act. He was further pleased to sentence accused to undergo simple imprisonment for four months and to pay a fine of Rs.250.00 and i/d. of fine, to undergo further simple imprisonment for two months. The learned Magistrate was pleased to acquit accused for an offence punishable under Sec. 85(1)(3) of the Act. Being aggrieved against and dissatisfied with the said order of conviction and sentence, accused preferred Criminal Appeal No. 57 of 1983 to the Sessions Court, Jamnagar. It may be noted that State did not prefer any appeal or revision application against acquittal of accused for an offence punishable under Sec. 85(1)(3) of the Act. The learned Appellate Judge heard the arguments of the learned advocates of both the parties, and after perusal of Record and Proceedings of the case, and after re-appreciating the evidence led by the prosecution in the trial court, he was pleased to come to a conclusion that the judgment of conviction and sentence is correct and according to law, and therefore, he was pleased to dismiss the appeal filed by accused and by dismissing that appeal, he was pleased to confirm the judgment i.e. order of conviction and sentence passed by the learned Magistrate who rendered his judgment in Column No.7 of Ex.2, on 12-12-1983.