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STATE OF GUJARAT v. LODHIRAM SHRI JAYRAM MINA
R/CR.MA/2763/2023 ORDER DATED: 14/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2763 of 2023 In R/CRIMINAL APPEAL NO. 317 of 2023 With
R/CRIMINAL APPEAL NO. 317 of 2023
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STATE OF GUJARAT
Versus
LODHIRAM SHRI JAYRAM MINA
================================================== Appearance:
MR. HARDIK MEHTA, APP for the Applicant(s) No. 1 for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 14/06/2023
ORAL ORDER
ORDER IN CRI.MISC.APPLICATION 2763 OF 2023
[1] Heard Mr. Hardik Mehta, learned Additional Public Prosecutor for the appellant-State.
[2] This appeal is filed under Section 378 (1) (3) of Cr.P.C at the instance of the State, seeking leave to challenge judgment and order dated 08.07.2022 passed by the Court of learned Additional Sessions Judge, Bharuch at Ankelshwar in Criminal Appeal No. 36 of 2019.
[3] By the said judgment and order, the learned Sessions Judge has quashed and set aside the judgment and order of conviction dated 22.10.2019 passed by the learned Judicial Magistrate First Class (Railway), at Surat in Criminal Case No. 2336 of 2012 and has recorded acquittal of respondent original accused for the offence punishable under Sections 66(1)(B) and
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85(1) (3) of the Gujarat Prohibition Act, 1949.
[4] Mr. Hardik Mehta, learned Additional Public Prosecutor has invited the attention of this Court to the order of conviction passed by the Court of learned Judicial Magistrate First Class (Railway), Surat and has submitted that learned Magistrate having noticed evidence in the form of testimonies of prosecution witnesses No. 1 and 3 had accepted the case of the prosecution about the presence of Ethyl Alcohol being found in the blood of respondent accused. The learned Magistrate had found the testimonies of aforesaid witnesses to be cogent, consistent, reliable and trustworthy.
[5] Having been satisfied with the aforesaid evidence, learned Magistrate had concluded that the prosecution has been able to prove the case against respondent-original accused beyond reasonable doubt and hence had convicted the respondent-accused for the offence punishable under Sections 66(1)(B) and 85(1) (3) of the Gujarat Prohibition Act, 1949. The accused was accordingly awarded sentence of simple imprisonment for six (06) months with fine of an amount of Rs.1,000/-.
[6] Mr. Mehta, learned Additional Public Prosecutor had further invited the attention of this Court to the impugned judgment and order of learned Additional Sessions Judge and has submitted that the appellate Court ignored the evidence of testimony of prosecution witness No.1. He further submitted
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that the evidence in the form of medical opinion of the doctor, who is otherwise examined as PW No. 6 has come on record.
[7] In such circumstances, non-examination of the Assistant Chemical Examiner who had issued Form (C) would not have essential as sufficient evidence has come on record, which goes to suggest the presence of Ethyl Alcohol in the blood of respondent-accused and is found more than the prescribed limit.
[8] Considering the submission made by the learned Additional Public Prosecutor and having perused the judgment and order passed by the respective Courts, prima-facie arguable case is made out. Hence, the present leave to appeal is hereby granted. Application stands disposed of accordingly.
ORDER IN APPEAL
Heard Mr. Hardik Mehta, learned Additional Public Prosecutor for the appellant-State.
ADMIT. Notice of admission to be served through the concerned police station.
Let bailable warrant in sum of Rs.10,000/- be issued against the respondent-accused.
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Record and proceedings to be called for of Criminal Appeal No. 36 of 2019 from the Court of learned Additional Sessions Judge, Bharch.
(NISHA M. THAKORE,J)
VISHAL MISHRA
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