POPATLAL MOTICHAND SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS revision application has been filed against the order convicting the applicant of the offence Under Section 85 (1) of the Bombay Prohibition Act (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 100/- and in default of payment of fine to undergo rigorous imprisonment for 3 weeks.

(2.) THE prosecution case against the applicant was that on 23rd October, 1974 at about 12-15 p. m. the applicant was in the Municipal Dispensary at Darwha. He was at that time under the influence of drink and was behaving in a disorderly manner by uttering some abuses. Sub-Inspector Ahirrao, who was in the Dispensary at that time, directed some policemen who1 were present there, to apprehend the applicant in view of his condition. Accordingly Constable Jagoba (P. W. 1) and Head Constable Vinayakrao (P. W. 2) apprehended the applicant. Since the Medical Officer, of the Darwha Dispensary was out of town, these two policemen took the applicant to the Medical Officer at Bori, who after examining the applicant, reported that his breath was smelling of alcohol, his gait was unsteady, his pupils were dilated and his speech was incoherent. The Medical Officer was of the view that the applicant had consumed alcohol and was under its influence. The Medical Officer had examined the applicant at 12-45 p. m. on the same day. On these allegations the appli- cant was put up for trial before the learned Judicial Magistrate, First Class at Darwha. The only evidence adduced by the prosecution consisted of the oral testimony of Jagoba and Vinayakrao. In addition to this, the prosecution also produced the report of the Medical Officer with regard to the examination of the applicant. The defence of the applicant was of denial. He contended that he had gone to the Dispensary as he was suffering from stomach-ache and before going to the Dispensary he had consumed the medicine known as Vinepar B-12. He contended that he had gone to the Dispensary because in spite of consuming the whole bottle of medicine, he did not get any relief. In the Dispensary there was a crowd in the Verandah and he asked the people to give him way and it was because of this that the Sub-Inspector arrested him. In short, he denied that he was behaving in a disorderly manner under the influence of drink. After appreciating the evidence on record and taking into account the defence set up by the applicant, the learned Judicial Magistrate held that the applicant had behaved in a disorderly manner under the influence of drink at the relevant time and hence he held that the applicant had committed an offence Under Section 85 (1) of the Act. In the view he took, he convicted and sentenced the applicant as stated above. Being aggrieved by this order of conviction and sentence the applicant preferred an appeal to the Sessions Court at Yeotmal. The learned Sessions Judge upheld the finding of the learned trial Magistrate and confirmed the order of conviction and sentence passed by him. It is against this order that the applicant has come to this Court in revision.

(3.) SHRI V. G. Palshikar, the learned counsel for the applicant, contended that both the Courts below had erred in finding that the applicant had behaved in a disorderly manner under the influence of drink. He submitted that the evidence on record with regard to the alleged disorderly behaviour of the applicant was not sufficient to establish that he was behaving in that manner. Mr. Palshikar pointed out that the only thing which was deposed to by the two policemen was that the applicant at the relevant time was abusing and these policemen had not given any details of the alleged behaviour of the applicant and particularly had not stated in clear terms as to what abuses the applicant was uttering at that time. In other words, the contention oi Shrjr Palshikar is that even assuming that the applicant was abusing, this by itself without any further details as regards the abuses or the behaviour of the applicant did not amount to establishing one of the two important ingredients of the offence under Sub-section (1) of Section 85 of the Act. In support of this contention he relies on unreported decision o this Court in Revision Application 114 of 1971 and Revision Application No. 134 of 1972 (Born)