HIMANSHU BECHARBHAI DALWADI v. STATE OF GUJARAT/

Date : 31/08/2017 ORAL JUDGMENT

1. The present appeal is filed under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 18.09.2015 passed by the learned Sessions Judge, Gandhinagar in Criminal Appeal No.45/2015, whereby the Criminal Appeal No.45/2015 was ordered to be allowed and the order of acquittal dated 29.09.2014 passed by the learned 3rd Additional Judicial Magistrate First Class, Gandhinagar in Criminal Case No.4875/2008 was ordered to be quashed and set aside and the learned Sessions Court, Gandhinagar convicted and sentenced the appellant-accused as under: (1) To undergo simple imprisonment for six months and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for fifteen days for the offence punishable under Section 66(1)(B) of the Gujarat Prohibition Act. (2) To under simple imprisonment for one month and to pay fine of Rs.200/- and in default to undergo further simple imprisonment for five days for the offence punishable under Section 85(1)(3) of the Gujarat Prohibition Act. (3) All the sentences are directed to run concurrently.

2. The brief facts leading to the filing of the present case are that on 11.08.2008, the appellant-accused was found in intoxicated condition near the gate of Udyog Bhawan, 'Gh' Road, Gandhinagar. Security Guard Ishwarbhai Amrutbhai Desai had informed Sector-7 Police Station, Gandhinagar. On the inquiry, the appellant-accused was found in intoxicated condition and he was arrested on spot. His blood was taken and sent to the Forensic Science Laboratory for the analysis. Thereafter, the complaint was filed against the appellant-accused.

3. After completion of the investigation, the chargesheet was filed before the learned 3rd Additional Judicial Magistrate First Class, Gandhinagar, which was thereafter numbered as Criminal Case No.4875/2008.

4. At the time of trial, in order to bring home the charges levelled against the present appellant-accused, the prosecution examined several witnesses and produced documentary evidences by list of documents, and thereafter, the prosecution has closed its evidence by giving closing pursis.

5. At the end of the trial and after recording the statement of the appellant-accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned 3rd Additional Judicial Magistrate First Class, Gandhinagar acquitted him for the alleged offences.

6. Being aggrieved by the judgment and order of acquittal, the State of Gujarat preferred Criminal Appeal No.45/2015 before the learned Sessions Judge, Gandhinagar, whereby the Criminal Appeal No.45/2015 was ordered to be allowed and the order of acquittal dated 29.09.2014 passed by the learned 3rd Additional Judicial Magistrate First Class, Gandhinagar in Criminal Case No.4875/2008 was ordered to be quashed and set aside.

7. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence passed by the learned Sessions Court, Gandhinagar, the present appeal is preferred by the appellant-convict on the various grounds enumerated in the appeal memo.

8. Heard learned advocate for the appellant and the learned Additional Public Prosecutor for the respondent-State.

9. Learned advocate appearing for the appellant-accused submits that the judgment and order of conviction and sentence passed by the learned First Appellate Court is contrary to law and against the provision of law. It is further submitted that the present appellant is an innocent person, however, he has been falsely implicated in the alleged offences. It is also submitted that the learned Court of Magistrate in Criminal Case No.4875/2008 recorded the findings in favour of the appellant. The said findings are based on documentary as well as oral evidence and the learned Court of Magistrate has not committed any error while appreciating the evidence on record. It is also submitted that the conclusion drawn by the learned Court of Magistrate is legal ad proper, however, the learned First Appellate Court, without proper appreciation of evidence on record and more particularly the evidence discussed on Internal Page-5 of the judgment and order, jumped to the conclusion that the view taken by the learned Court of Magistrate is not legal and proper, and thereby, the said view taken by the learned Court of Magistrate is quashed and set aside and the appellant has been convicted for the alleged offences. The learned advocate for the appellant, while referring the FIR and the certificate issued by the Medical Officer as well as the evidence given by the Medical Officer at Exh.:11, submits that the offence as envisaged under Section 66(1)(B) of the Gujarat Prohibition Act is not established against the present appellant. The learned advocate for the appellant, while referring the medical certificate issued by the Medical Officer, General Hospital, Gandhinagar at Page-37, submits that as per the said certificate, the appellant was found in conscious condition, his eyes were normal, pupils were directed, gait was steady, speech was normal and he was not under influence of alcohol and he was able to take care of himself. It is also submitted that the Medical Officer, who has been examined as PW:11, has also endorsed the observation made in the medical certificate, which is produced at Exh.:14. The learned advocate for the appellant has also referred to and relied upon the provision as contained in Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 and submitted that in the instant case, the manner of collection and forwarding of blood sample is not in accordance with Rule 4 of the aforesaid Rules. While concluding the submissions, the learned advocate for the appellant submits that in view of the evidence on record and more particularly in view of the findings recorded by the learned Court of Magistrate at Internal Page-5 of the judgment and order, the judgment and order passed by the learned First Appellate Court in Criminal Appeal No.45/2015 deserves to be quashed and set aside. It is further submitted that the learned First Appellate Court has not properly appreciated the evidence on record. Learned advocate for the appellant further submits that the learned First Appellate Court has not properly appreciated the evidence on record and there are infirmities in the order passed by the learned First Appellate Court, and therefore, the conviction and sentence imposed upon the present appellant is required to be set aside and the appellant may be acquitted from the charges levelled against him.

10. The learned Additional Public Prosecutor appearing for the respondent-State, while opposing the present appeal, submits that the learned First Appellate Court has not committed any error while appreciating the evidence on record. It is further submitted that there is sufficient evidence on record to convict the present appellant for the alleged offences. It is further submitted that the appellant is the Government Servant, and therefore, looking to the seriousness of the offence, the view taken by the learned First Appellate Court is required to be confirmed and maintained. It is further submitted that the learned First Appellate Court has appreciated the evidence in its proper perspective and there is no infirmity with the findings recorded by the learned First Appellate Court, and therefore, the judgment and order of conviction and sentence imposed by the learned First Appellate Court may not be disturbed and the present appeal may be dismissed.

11. Regard being had to the above submissions and looking to the facts and circumstances as also considering the evidence on record and more particularly the findings recorded by the learned Court of Magistrate on Internal Page-5 of the judgment and order, this Court is of the view that the said findings are based on documentary as well as oral evidence. The learned Court of Magistrate has not committed any error while appreciating the evidence on record. It appears that the medical evidence

i.e. medical certificate at Exh.:14 of PW:11 Doctor does not support the prosecution case. On perusal of the evidence on record, this Court finds substance in the arguments advanced by the learned advocate for the appellant with respect to non-compliance of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. It appears that the learned First Appellate Court while dealing with Criminal Appeal No.45/2015 has discussed the various case laws cited before it, but on the basis of evidence on record, specific findings for compliance of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 is not recorded by the learned First Appellate Court.

12. Under the circumstances, the view taken by the learned First Appellate Court is required to be quashed and set aside and the judgment and order passed by the learned Court of Magistrate is required to be confirmed.

13. Accordingly, the present appeal is allowed and the judgment and order of conviction and sentence dated 18.09.2015 passed by the learned Sessions Judge, Gandhinagar in Criminal Appeal No.45/2015 is quashed and set aside and the judgment and order dated 29.09.2014 passed by the learned 3rd Additional Judicial Magistrate First Class, Gandhiangar in Criminal Case No.4875/2008 is confirmed. Accordingly, the appellant is ordered to be acquitted of the charges levelled against him. The bail and bail bond stands cancelled. Surety, if any, shall stand discharged. Record and Proceedings be sent back to the Trial Court concerned forthwith. (P.P.BHATT, J.) rakesh/