ATMARAM SHIVLING DUPLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this writ petition the order of conviction and sentence recorded by the Ld. JMFC. Radhanagari on 31st December 1988 in Summary Case No.175 of 1985 and confirmed by the Addl. Sessions Judge, Kolhapur in Criminal Appeal No.22 of 1989 by judgment and order dated 5-8-1990 is under challenge.

(2.) THE brief facts necessary for disposal of this petition are as follows : THE petitioner, who was serving as Police Head Constable under Buckle No.2/1400 was attached to Radhanagari Police Station in Kolhapur District on the date of incident which is 2nd April 1983. On that day he was suspected of having consumed alcohol and, therefore, he was sent to the Medical Officer on the same day. He was examined by the doctor under Medical Case No.138/83. His blood was taken. THE C. A. report is at Exhibit 30 according to which the blood of the petitioner-accused contained 0. 14% ethyl alcohol. His blood was collected under the panchanama and there is no procedural lacuna pointed out. THE papers were submitted to the Sr. Prosecutor, Kolhapur in the month of April 1983 itself for obtaining the opinion for filing complaint. THEreafter the complaint (Exh. 20) came to be filed on 17-10-1984 at the Radhanagari Police Station and crime was registered against the petitioner under C. R. No.48/84. THEreafter the charge-sheet came to be filed on 13-5-85. THE evidence was led on behalf of the prosecution of the PSI Complainant and other witnesses including the Panchas in the trial Court and after appreciating the entire evidence on record the Trial Court found the petitioner guilty under the provisions of Section 66 (1) (b) of the Bombay Prohibition Act and was accordingly convicted and sentenced till rising of the Court and to pay a fine of Rs. 500/- in default to undergo RI for 15 days.

(3.) UNDER Section 468 (2) (b) the period of limitation in this case would be one year as the offence is punishable with imprisonment upto maximum of six months. UNDER Section 469 the period of limitation commences from the date of the offence which is 2nd April 1983 in this case. UNDER clause (b) of sub-section (1) of Section 469 the period is to be calculated from the day of knowledge of the commission of the offence by the person who is aggrieved by the said offence or from the date of establishment of identity of the offender, if the offender was not known. This case would be governed by Sections 468 (2) (b) and Section 469 (1) (a) of the Cr. P. C. According to the Ld. Sessions Judge clause (3) of Section 470 would be applicable under which the period required for previous sanction is to be excluded. However, the Ld. Sessions Judge has not mentioned how much period was taken for obtaining the sanction which could be excluded under Section 470, Sub-section (3) of the Code. In this case the cognizance cannot be said to have been taken by the Court at the time of lodging of the FIR on 17-8-1984 but only when the charge-sheet was filed on 13-5-1985.