State v. Heard

Heard learned APP Shri Nanavaty for the appellant State. Notice is not received back from the respondent.

The appellant State of Gujarat has preferred this appeal under section 378 (1) (3) of the Criminal Procedure Code challenging the acquittal order dated 23/4/2004 passed by learned JMFC (Court No.3), Gandhinagar in Criminal Case No. 1624 of 1995 acquitting of the accused of the charge of committing offence under section 85(1)(3) and 66(1)(B) of Bombay Prohibition Act.

Short facts leading to filing of this appeal deserves to be set out as under.

The respondent accused was facing charge and was tried by learned JMFC, Gandhinagar in Criminal Case No. 1624 of 1995 for the offence punishable under section 85(1)(3) and 66(1)(B) of the Bombay Prohibition Act (herein after referred to as the 'Prohibition Act' for brevity). The Head Constable Jayantilal Vrajlal Khatri, i.e. the accused on 27/1/1995 was found in drunken condition in Sector No. 17, Gandhinagar, hence the offence was registered and after recording plea of not guilty trial began . The Court after appreciating evidence on record came to the conclusion that the prosecution has failed in establishing the case against the accused of non-acquitting him for the charge of committing offence under the Prohibition Act and hence passed the order of acquittal dated 23/4/2004 which is impugned in this appeal.

In this appeal record & proceedings are available and the record indicates that the accused is served but he has chosen not to remain present either himself or through his advocate. The Court heard learned APP and proceeded with deciding the matter in absence of accused respondent.

The appeal deserves to be dismissed for the following reasons:-

a) In case of prohibition offences doctor's testimony is assuming importance and as could be seen from the testimony of the doctor in the present case, namely PW-3 Purshottam Somabhai, he did not give any evidence indicating therein unequivocally that there was complete compliance with provision of Rule of the Bombay Prohibition (Medical Examination And Blood Test)Rules 1959 [herein after referred to as the 'Prohibition Rules' for brevity]. The doctor has deposed that the phial was brought to him containing preservative. In other words it can be said that the doctor did not give positive evidence in regard to adding of preservative in the phial. Plain reading of Rule 4 makes it clear that in compliance of said rule preservatives are to be added in to the phial in which the blood is required to be collected. Blood in question has been collected by the doctor but he has said that he used the phial which was brought to him which contains preservative. The preservative was not added by himself nor were they added in his presence. This is a serious lapse so as to deal serious blow to the case of the prosecution.

b) The second aspect of the matter is in respect of non maintaining of sanctity in regard to seal or otherwise same being found in possession of a person other than the doctor himself as the seal which is used by the doctor is said to be a seal of C.H., Gandhinagar and very same seal is also found to have been applied to the other phials also. Therefore the question with regard to maintaining sanctity in regard to seal and handling of the seal would also be subject to reasonable doubt in respect of its usage.

c) This Court on the earlier occasion in such a situation upheld the acquittal as could be seen from the decision of this Court (Coram: S.R. Brahmbhatt, J) in Criminal Appeal No. 1331 of 2004 decided on 12/3/2010.

The appeal for the above reasons deserves to be dismissed and is accordingly dismissed. Bail bond shall stand cancelled.

[ S.R. BRAHMBHATT, J ] /vgn Top