VISHNU FAKIRA WAKODE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Applicant Vishnu Fakira Wakode seeks to challenge the Judgment and order in Criminal Case No. 967 of 1979, decided on 8-4-1980, by Judicial Magistrate, First Class, Khamgaon, finding him guilty of an offence punishable under section 66 (1) (b) of The Bombay Prohibition Act, 1949 and sentencing him to suffer rigorous imprisonment for three months and a fine of ? 500, in default of which he had to suffer further rigorous imprisonment for one month. He had challenged this judgement and order of conviction in criminal case No. 63 of 1980 before Additional Sessions Judge Khamgaon who dismissed his appeal on 20th August, 1980.

(2.) Prosecution alleged that accused Vishnu Fakira Wakode consumed liquor, got drunk and entered the premises occupied by P. W. 1 Kausalyabai at about 4.40 P. M. on 6-9-1979. P. W. 3 Head Constable Shankar of Police Station, Khanigaon, raided the spot along with staff and found that accused was hurling vulgar abuses at the daughter of Kaushalyabai. The Police Pati1, therefore, apprehended the accused and recorded a panchnama and accused was taken to the Police Station and was sent for medical-examination. P. W. 5 Dr. Choudhary, Medical Officer, Khamgaon examined accused at 6.10 P. M. and opined that the accused had consumed alcohol but was not under the influence of alcohol. He also collected sample of blood of accused as per rules and it was carried to the office of Assistant Chemical Analyser by Police Constable Pandit (P. W. 4). The sample was delivered in the office of Assistant Chemical Analyser, Nagpur on 10-9-1979 and on analysis, it was found that the blood contained 0.069% w/v of ethyl alcohol. It was on these allegations that particulars for offences punishable under section 110, read with section 117 of the Bombay Police Act and 66 (1) (b) of The Bombay Prohibition Act were explained to the accused. The defence of accused was that he was called by Police from his house and sent for medical examination. The fact that Doctor Choudhary examined him and took sample of his blood was not challenged. The further allegation that the report of Chemical Analyser, which is at Ex. 16, pertained to the examination of his blood, was also not challenged. According to the accused, he had consumed two bottles of beer and drakshasava because of pain in stomach. Trial Court found that mere statement in examination of accused under section 313 Criminal Procedure Code, that accused had consumed two bottles of beer and drakshasava was not sufficient to discharge the burden cast upon the shoulders of accused to prove that he has consumed medicinal toilet preparation or antiseptic preparation or essence or syrup containing alcohol, the consumption of which was not in contravention of the Act or any rule, regulation or orders made thereunder, as provided by sub-section 2 of section 66 of the Bombay Prohibition Act and found the accused guilty of an offence punishable under section 66 (1) (b) of The Bombay Prohibition Act, while acquitting him of offence punishable under section 110, read with section 117 of the Bombay Police Act. The learned Trial Judge placed reliance on a decision of Supreme Court in the case of Ram Kishan Bedu Rane v. State of Maharashtra, 1973 AIR(SC) 246for coming to the conclusion that reasonable and plausible explanation offered by accused in statement under section 313 Criminal Procedure Code was not enough to discharge burden cast upon accused u/s 66 (2) of The Bombay Prohibition Act and something more was necessary.

(3.) The learned Appellate Judge found in paragraph 9 of the appellate judgement that,