MANGI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Petitioner, Mangilal was tried for the offences under sections 4 (1) (g) and 4(2) of the Prohibition Act (for short the Act) and sentenced to 6 months rigorous imprisonment and a fine of Rs. 200.00and in default to further undergo 3 months imprisonment on the first count and 3 months simple imprisonment and a fins of Rs. 100.00, in default to further undergo one month's simple imprisonment on the second count by the Chief Judicial Magistrate, Jaisalmer by the judgment dated 26th Oct., 1977. Allegation against the petitioner was that on 4-8-75 Chhotusingh Sub-Inspector of Police found the petitioner sitting out side his house, consuming alcohol from a glucose bottle. The sub-inspector apprehended the petitioner and took in possession the bottle half filled with liquor. The petitioner was taken to Jawahar Hospital Jaisalmer where PW 2, Dr. B.K. Mathur examined him. The learned magistrate held the prosecution case established and passed the sentence for the aforesaid offences as stated above. In the appeal against the judgment, learned Additional Sessions Judge No 1, Jodhpur (Camp Jaisalmer) by his judgment dated 19-5-78 partly allowed the appeal and acquitted the petitioner for the charge under section 4(2) of the Act but maintained the conviction for the offence under section 4 (1) (g) of the Act and confirmed the sentence passed by the learned Chief Judicial Magistrate for that charge. It is in grievance of the judgment of that court that the petitioner has invoked the revisional jurisdiction of this Court.

(2.) The learned Counsel for the petitioner strenuously contended that despite a specific findings, by the learned trial Judge, that Dr. B K Mathur was not reliable as he appeared to help the accused, the conviction of the petitioner for the offence under section 4(l)(g) consuming liquor was maintained, without there being any other evidence.

(3.) Whether a person has consumed alcohol or not is to be established by the prosecution from expert evidence. In the present case, Dr. B.K Mathur has been examined to substantiate the prosecution case The doctor has stated that the eyes of the petitioners were congested at the time of examination. He however noted all other factors to be normal. In his cross-examination the doctor has admitted that he had neither tested urine or blood of the petitioner nor his stomach contents. The Doctor has given opinion about the petitioner consuming alcohol on the basis of the alcoholic smell emitting from his mouth It is pertinent to note that the Doctor has admitted that if a person has taken some medicine containing alcoholic contents, there may be alcoholic smell from his mouth. The doctor has also admitted that B.G Phos and Pickle containing alcoholic contents may also give smell of alcohol if consumed The re-appraisal of the evidence is of course not required in deciding a revision petition, but in a case like present one where except the statement of the Doctor there is no other convincing evidence about the consumption of liquor by the petitioner and the learned appellate court has dis-believed the finding of the trial court regarding the charge under section 4(1) (g) of the Act, interference is required. In view of the statement of the doctor, I am inclined to hold that prosecution has failed to establish that the petitioner had consumed alcohol at the relevant time. It is relevant to observe that the learned appellate court while discarding the testimony of the Doctor has observed that the petitioner could not prove his defence by the convincing evidence. The defence taken by the petitioner in his statement was that he had taken medicine. It is the duty of the prosecution to establish the guilt against the accused. The prosecution having failed to do so, it cannot take advantage of the weakness of the defence to substantiate the plea taken by the accused by other evidence. In this view of the matter the conviction of the petitioner cannot be said to be justified.