ORAL JUDGMENT
Page 1 of 7
The State is in appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" for short) to question the legality and validity of the judgment and order of acquittal dated 31.8.2004 passed by learned Judicial Magistrate First Class, Kalol, in Criminal Case No.867 of 2000, whereby the respondent came to be acquitted for the offences punishable under Sections 66-1-B, 85-1-3 of the Bombay Prohibition Act and the under sections 110, 117 of the Bombay Police Act.
2. The prosecution story as unfolded during the trial is that on 9.6.2000 while complainant was discharging his duties at about 9:00 hours the respondent accused, was found in drunken condition and gave abuses to the complainant and threatened him with dire consequences. Thereafter the complainant along with staff members visited Senior Police Inspector and was asked to produce the pass or permit for consuming liquor. Thereafter, arrangement for panch witnesses as well as medical examination was made and after drawing panchnama, offences was registered against the respondent accused for the alleged offences under section 66(1)
(b) and 85(1)(3) of the Bombay Prohibition Act as well as seciton 110, 117 of Bombay Police Act. On the basis of the available evidence, charge sheet was
Page 2 of 7
filed in the court of Judicial Magistrate, First Class, Kalol being Criminal Case No. 867/2000. The learned Magistrate on the available evidence acquitted the respondent and hence this appeal.
3. Upon the conclusion of investigation, prima-facia case was found against the respondent and therefore, charge sheet came to be filed against them in the Court of learned Judicial Magistrate, First Class,Kalol in Criminal Case No. 867/2000. Since, the offences alleged against the respondents were exclusively triable by the Sessions Court, the learned Judicial Magistrate by order dated 31.8.2004 committed case to the court of Judicial Magistrate First Class under Sections 66-1-B, 85-1-3 of the Bombay Prohibition Act and the under sections 110, 117 of the Bombay Police Act. Upon committal, the case came to be registered in criminal Case no. 867/2000 in the Judicial Magistrate First Class, Kalol.
4. Charges were framed and read over and explained to the respondent. They pleaded not guilty and claimed to be tried in order to bring home the guilt to the respondent.
5. The learned Trial Judge upon hearing the learned A.P.P. and learned advocate for the defense and after
Page 3 of 7
analyzing the oral and documentary evidence, recorded the findings that the prosecution has failed to prove the case against the respondent beyond reasonable doubt and therefore, acquitted them under Sections 66-1-B, 85-1-3 of the Bombay Prohibition Act and the under sections 110, 117 of the Bombay Police Act by his impugned judgment and order dated 31.8.2004.
6. The appellants-State being aggrieved and dissatisfied with the impugned judgment and order dated 31.8.2004 hence, has preferred this appeal.
7. I have heard Ms. Reeta Chandarana, learned A.P.P for the State, Mr. A.M Parekh, learned advocate for the respondents.
8. Ms. Chandarana, learned A.P.P. submits that the learned trial judge has committed a serious error in acquitting the respondent on the ground that in the present case sample blood was taken on 9.6.2000 for the purpose of analysis and was received late after testing on 17.6.2000 and therefore, there is a breach of provision of section 4(2) of the Rules. She, therefore, submits that the Appeal may be allowed and the respondent may be convicted.
Page 4 of 7
8.1 Learned advocate for the respondent has supported the impugned judgment and order of acquittal.
9. The scope of the acquittal appeal under Section 378(1)(3) of the Code is limited. The Supreme Court in the case of Sadhu Saran Sing v/s. State of Uttar Pradesh, (2016) 4 SCC 357, have explained this court of acquittal appeal in paragraph 20 as under :
"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration for the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held:
7. " The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal, are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an
Page 5 of 7
accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal.""
10. Hence, this court will have to examine the evidence adduced by the prosecution and the evaluations of the evidence, done by the learned Trial Judge, keeping in mind the aforesaid proposition of law, as regards the scope of the acquittal appeal. The perusal of record reveals that the incident had taken place on 9.6.2000 and complaint was filed on 7.7.2000, thus, there is a delay of 25 days in filing compliant and no proper explanation has been given by prosecution for the late filing of the complaint. Apart from that, independent witnesses were available at the place of incident, but no independent prosecution witnesses were examined by the prosecution. I am, therefore, of the view that the learned trial judge has committed no illegality or error in acquitting the respondent.
11. Therefore, the impugned judgment and order of acquittal recorded by the learned trial judge does not warrant interference, in this appeal.
12. For the foregoing reasons, the Appeal fails and is hereby dismissed. The judgment and order of acquittal dated 31.8.2004 learned Judicial
Page 6 of 7
Magistrate First Class, Kalol in Criminal Case No. 867/2000 is hereby confirmed.
13. R & P shall be transmitted to the trial court forthwith.
(A.G.URAIZEE,J)
MARY
Page 7 of 7