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
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