STATE OF GUJARAT Vs. AMARSINGH CHOTHABHAI

JUDGEMENT

(1.) The State has preferred this appeal against the order of acquittal passed by the court of the J.M.F.C. Lunawada in Criminal Case No. 559/73 of his file acquitting the respondent-accused of the offences under sec. 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act.

(2.) Short facts of the case are that the respondent-accused is a police constable and was attached at the relevant time to the office of the P.S.I. Lunawada. On 7th February 1973 at 7-30 p.m. the P.S.I. Balkrishna Shan- karrao whose deposition appears at ex. 15 called the accused to take his explanation as he was absent on his duty on the night round of 3rd February 1973 It is said that when the accused appeared before the P.S.I. he was speaking at random and his mouth was smelling of alcohol. A rojkam of his physical condition was thereupon made as found at ex. 16. The accused was thereafter sent to Dr. Rajbala Kantilal for medical examination. The doctor examined him at 8-45 p.m. on the same day. The doctor found on examination that the breath of the accused was smelling of alcohol but his speech was normal and his gait was steady the doctor therefore opined that the accused had consumed alcohol but was not under its influence. The doctor also took sample of the blood of the accused for chemical analysis. She took 5 cc. of blood from a vein of the accused in a phial containing anticoagulant pottasium anxelate. The said phial was received in the office of the Assistant Chemical Analyser Rameshchandra Nandlal ex. 9 of Junagadh on 12-2-1973. The sample was analysed by this witness On 15-2-73. On analysis it was found to be containing 0.0759 per cent of w/v. alcohol. This percentage of alcohol is admittedly more than what is contemplated by sec. 66(2) of the Act.

(3.) The accused was thereafter tried and as a result of the trial the learned Magistrate who tried the accused acquitted him principally on the ground that the prosecution had failed to prove that the accused had consumed alcohol within the territory of the State of Gujarat. For com- ing to this conclusion the learned Magistrate has put reliance upon the decision given by this court in CHHAGANJI KHENGARJI V. STATE REPORTED IN (1970) 11 G.L.R. 573.