State Of Gujarat (S) v. Koli Uka Masri Opponent(S)

ORAL JUDGMENT

1. This appeal is preferred by the appellant-State under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 22.01.1998 passed by the learned Additional Sessions Judge, Junagadh in Criminal Appeal No. 7 of 1996.

2. Learned A.P.P Ms. Krina Calla, representing the appellant - State, submitted that the learned Judge acquitted the respondents for the offence punishable under Sections 66(1)(B), 85(1)(3) of the Bombay Prohibition Act and Sections 110 and 117 of the Bombay Police Act. She submitted that the learned Judge has not appreciated the entire gamut of oral deposition and documentary evidence on record of the case in proper perspective while acquitting the respondents. She submitted that the learned Judge ought to have appreciated the deposition adduced by Dr. Hasmukhrai Prabhashankar Jani, Medical Officer, vide Exh.7 and the deposition of Dinkarrai Mahashankar Joshi vide Exh.13 Both these witnesses have deposed in their testimony that the respondent was in a drunken condition and was not able to maintain balance even while walking. This aspect was overlooked by the learned Judge in acquitting the respondent. Thus, it is submitted by the learned A.P.P that the order passed by the learned Judge deserves to be quashed and set aside and the respondent be convicted for the offence punishable under Sections 66(1)(B), 85(1)(3) of the Bombay Prohibition Act and Sections 110 and 117 of the Bombay Police Act.

3. Learned advocate Ms. Sejal K. Mandavia, representing the respondent, submitted that on perusal of the reasoning given by the learned Judge, it becomes clear that no case is made out against the respondent by the prosecution so as to convict the respondent for the offence punishable under Sections 66(1)(B), 85(1)(3) of the Bombay Prohibition Act and Sections 110 and 117 of the Bombay Police Act. She submitted that the learned Judge has considered the entire evidence on record of the case and, as there was no conclusive evidence against the respondent, the learned Judge acquitted the respondent for the offence punishable under Sections 66(1)(B), 85(1)(3) of the Bombay Prohibition Act and Sections 110 and 117 of the Bombay Police Act. The learned advocate further submitted that the appeal preferred by the State is under Section 378 of the Code of Criminal Procedure wherein, the power of this Court is very narrow and limited and unless egregious error is committed by the learned Judge or the order passed by the trial court is ex-facie illegal then, this Court can interfere in the appeal preferred under Section 378 of the Code of Criminal Procedure. Thus, it is submitted by the learned advocate that the prosecution has not made out any case against the respondent and the appeal deserves to be dismissed.

4. I have heard learned A.P.P Ms. Krina Calla for the appellant-State and learned advocate Ms. Sejal K. Mandavia for the respondent at length and in great detail. I have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case with reasonable and broad probabilities.

5. Considering the entire evidence on record of the case, the prosecution, in my view, has not made out a case against the respondent. The charge against the respondent was framed under Sections 66(1)(B), 85(1)(3) of the Bombay Prohibition Act and Sections 110 and 117 of the Bombay Police Act. The prosecution led evidence in order to establish the guilt against the respondent but, on perusal of the oral deposition and documentary evidence, it becomes clear that the prosecution has not conclusively established the entire link connecting the respondent with the commission of offence. The learned Judge rightly held that the procedure for sending sample was not strictly followed as per the provisions contained in Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test Gujarat Amendment) Rules, 1984 and, therefore, there is lacuna in the procedure adopted for sending the sample of blood of the respondent for analysis. In view of the above, the learned Judge acquitted the respondent for the offence punishable under Sections 66(1)(B), 85(1)(3) of the Bombay Prohibition Act and Sections 110 and 117 of the Bombay Police Act. I see no reason to interfere with the order passed by the learned Judge as there is apparently no infirmity in the order passed by the learned Judge.

6. I am aware that this is an acquittal appeal in which the Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly when the evidence has not inspired confidence of the learned Judge who had the opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Judge, the Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Judge and this Court is of the opinion that expression of general agreement with the view taken by the learned Judge would be sufficient in the facts of the case.

7. For the foregoing reasons, there is no merit in the appeal preferred by the State and, as the appeal is meritless, the same is hereby dismissed.