SADASHIV RAMCHANDRA BHALEKAR Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS revision application has been filed by the accused against the order dismissing his appeal passed by the learned Sessions Judge at Thana, which appeal was filed by him against the order of conviction and sentence passed by the learned Judicial Magistrate at Thana for an offence under Section 85(1)(i) of the Bombay Prohibition Act. The accused was sentenced to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 50 only, in default to suffer further simple imprisonment for 15 days.

(2.) THE case for the prosecution was that on June 29, 1959, a motor accident on the Bombay -Agra road was reported to the Thana Town Police Station and the police constable Mane attached to that police station started to go to the scene of the accident at about 5 -30 P.M. on that day. On his way to the scene of the accident, the police constable saw a touring car standing near the State Transport Workshop on the same road and found that that car had met with an accident. The police constable saw the accused sitting in the rear seat of that car and it was alleged by the prosecution that the accused was then drunk. Apanchnama of the condition of the accused was thereafter made and he was sent for examination to the Medical Officer, Thana, who found that he was overcome by alcohol. The accused was then put up for trial for offences under Section 85(1)(i) and 85(1)(iii) of the Prohibition Act. In defence the accused stated that he was sitting in a closed car. The police, according to him, came there after some time and asked him as to what had happened. He replied that he did not know anything at all. Then, according to him, he was told that he was smelling of alcohol and in reply he stated that he was ill. and had taken some medicine. He further stated that he was suffering from high blood pressure, that when he was excited he could not speak or walk properly and that, therefore, he had taken a medicine.

(3.) MR . Shrikande, the learned Counsel for the petitioner, contended that on the evidence the accused was found sitting in his own car on the Bombay -Agra Road, that the car was a sedan car, that there was neither accessibility nor visibility so far as the condition of the accused himself was concerned and that, therefore, he could not be said to have been found on a public road in a drunken condition. He urged that in order that a person mightbe charged for having been drunk in any street or thoroughfare or public road or any place, to which, the public have access, it was necessary that the person alleged to have been so drunk must be accessible by members of the public and also his condition of being drunk must be clearly visible to the people going along the road, and that, if either of these conditions was not fulfilled, then he could notbe guilty under Section 85(1) of the Prohibition Act. Mr. Dalvi, on behalf of the State, on the other hand, contended that our own High Court had held in a similar case, where a man was going along the public road in a tonga in a drunken condition, that he was guilty under s.85(1)(i) of the Prohibition Act, because, although the man was travelling in a tonga, the tonga was itself going' along the public road and, apart from the question of accessibility or visibility which was not at all considered in that case, the very fact that he was travelling in a drunken condition in a tonga on a public road was enough to convict him of the offence under Section 85(7)(i) of the Act. That decision was given by Mr. Justice Bavdekar in the case of Baldarkhan Kasamkhan Pathanv. The State of Bombay (1955) Criminal Revision Application No. 670 of 195 (Unrep.). In that case, the learned Judge was confronted with the question as to whether a person who was drunk and who was going along a public road in a tonga could be said to be incapable of taking care of himself so that he could be convicted under Section 85(7)(i) of the Act. From the judgment itdoes not appear that there was any evidence led on behalf of the prosecution to show that the person so going in the tonga was either prattling or chattering or making any sort of nuisance or mischief or using any abusive language. He was just sitting in the tonga and was being carried to his destination by the tonga driver. In spite of it, the learned Judge held that that man must be deemed to have been incapable of taking care of himself by reason of his having been drunk because, had it not been for the fact that he had placed himself in the charge of the tonga driver for the purpose of being' taken to his destination, he would certainly, by reason of the fact of his being overpowered by the drink taken by him, have been incapable of taking care of himself on the public road. According to the learned Judge, the test was not that he was making a nuisance of himself to the members of the public' going along the road. The test was as to whether he was in such a state in which he could not do for himself what he had to do if care had to be exercised. It would thus appear that all that the prosecution would have to prove in such a case for substantiating a charge under Section 85(7)(i) would be that the man was drunk in the sense that he was over -powered by alcohol with the symptoms which generally follow this kind of intoxication, and if the prosecution succeeded in showing that, then, even if that man was going along a public; road, in a vehicle either private or public, either visible or invisible, or accessible or inaccessible, he would be deemed to be incapable of taking care of himself on the hypothesis that, if he were not going along in the vehicle, if he were going by himself on the public road, he would be exhibiting a sort of behaviour which would be inconsistent with the behaviour of a normal man.