ORAL JUDGMENT :
The present revision is against the judgment dated 05.10.2013 passed by the learned Sessions Judge, Wardha, in Criminal Appeal No. 49 of 2010 by which she has confirmed the judgment dated 22.04.2010 passed by the Judicial Magistrate, First Class, Karanja Ghadge in SCC No. 251 of 2009.
2. The case of the prosecution against the present applicant
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(hereinafter referred as accused) in short, is that, the accused was working as Watchman. On 06.12.2008, in the night, accused was on duty as Watchman in the Court. At the time of closing office, he was found under the influence of liquor. He was not in a position to close the door. The said fact was brought to the notice of Presiding Judge of the Court. Accused was sent to the Police Station. He was taken to the Government Hospital, Arvi. Blood sample was taken. It was sent to Chemical Analyser.
3. As per the report of CA, 0.129 per cent W/V alcohol was found in the blood of accused. After completion of investigation, charge sheet was filed before the JMFC, Karanja Ghadge. Particulars were explained to the accused for the offence punishable under Section 85(1) and 66(1)(b) of the Maharashtra Prohibition Act. The prosecution has examined in all nine witnesses. PW-2 Police Constable Sontakke has stated before the Court that he had taken the accused for medical examination to the government hospital, Arvi. Blood sample of accused was taken out. The said sample was sent to CA. CA report is at (Exh.31). As per the CA report, the blood sample of the accused contained 0.129 per cent W/V of ethyl alcohol.
4. Witnesses who were working with the accused as Clerks have stated against accused that he was under the influence of liquor and was not in a position to work. All these evidence had taken into consideration by the
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JMFC, Karanja Ghadge and punished the accused for the offence punishable under Section 66(1)(b) and acquitted for the offence under Section 85(1) of the Maharashtra Prohibition Act. Being aggrieved by the judgment of conviction, the appeal was filed before the Sessions Judge, Wardha. The said appeal came to be dismissed. Hence, the present revision.
5. Heard Shri R.S. Kurekar, learned Counsel appearing on behalf of the applicant and Shri H.D. Dubey, learned Additional Public Prosecution appearing on behalf of the respondent/State.
6. Shri Kurekar, learned Counsel for the applicant has submitted that the applicant is wrongly convicted for the offence punishable under Section 66(1)(b) of the Maharashtra Prohibition Act, when he is acquitted for the offence punishable under Section 85(1) of the said Act. He has further submitted that after enquiry, the accused is dismissed from service. At last, he has submitted that the revision be allowed and accused be acquitted.
7. Shri Dubey, learned APP for the respondent/State has strongly supported the judgments and pointed out the material evidence on record. He has submitted that as per Section 66(1)(b), the accused is rightly convicted by the trial Court. There is no perversity or illegality in the
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impugned judgments. Hence, revision is liable to be dismissed.
8. Accused was charge-sheeted for the offence punishable under Section 85(1) of the Maharashtra Prohibition Act and Section 66(1)(b) of the said Act. Evidence of prosecution witnesses do not show that the accused was behaving in disorderly manner at public place. There is no dispute that the Court is a public place, but, there is no evidence to show that the accused was behaving in disorderly manner under the influence of liquor. Therefore, accused is rightly acquitted by the trial Court for the offence punishable under Section 85(1) of the Maharashtra Prohibition Act. Shri Kurekar, learned Counsel for the applicant has submitted that the accused cannot be convicted for the offence punishable under Section 66(1)(b) of the said Act.
9. Section 66 of the Maharashtra Prohibition Act reads as under -
"66. Penalty for illegal cultivation and collection of hemp and other matters. - (1) Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or of any licence, permit, pass or authorization issued, thereunder -
(a) ...
(b) consumes or uses any intoxicant other than opium or hemp,
for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend to ten thousand rupees (after amendment)."
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10. Evidence on record shows that the applicant was under the influence of liquor. He was not in a position to do any work. There is no dispute that he was working as a Watchman in the Court premises. Exh.23 is the duty register which shows that he was on duty at the time of incident in Court at Ashti. Exh.21 shows that the blood sample was taken by the Medical Officer. Exh.31 is the CA report which shows that blood of accused was containing 0.129 per cent W/V ethyl alcohol. CA report shows that accused consumed liquor. As per Section 66(1)(b) whoever consumes liquor without permit is the offence. All the witnesses have stated against the accused that at the time of incident, accused was under the influence of liquor. There is no perversity or illegality in the impugned judgments. Hence, revision is liable to be dismissed.
11. At this stage, learned Counsel Shri Kurekar has submitted that the accused is already dismissed by the Principal District Judge, Wardha. Now he is not in service. Learned Counsel has further submitted that the fine amount of Rs.5,000/- is already paid by the accused. Learned Counsel has submitted that lenient view be taken by allowing the revision. The accused is now aged about 55 years. He is already dismissed by the Principal District Judge, Wardha. He has already paid fine amount of Rs.5,000/-. The evidence of witnesses (employees of the Court) do not show any misbehaviour on the part of the accused.
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12. It is observed by the trial Court that offence punishable under Section 85(1) of the Maharashtra Prohibition Act is not proved but the applicant was found under the influence of liquor. The applicant was working as a Watchman in the Court. He is dismissed from the service. All the evidence show that accused is heavily drunken. The C.A. Report, Exhibit 31 shows that blood sample of accused contained 0.129 % w/v of ethyl alcohol. But accused was not misbehaving with any of the staff of the Court.
13. Learned counsel Shri Kurekar has submitted that the applicant has already lost his service. He has to maintain his family. Looking to the punishment provided under Section 66(1)(b) of the Maharashtra Prohibition Act and to meet the ends of justice, following order is passed.
ORDER
(i) The revision is partly allowed.
(ii) The judgment of conviction for the offence punishable under Section 66(1)(b) of the Maharashtra Prohibition Act is maintained, however, sentence is modified as under.
"Instead of sending the applicant/accused in jail, he is sentenced to suffer simple imprisonment till rising of the Court."
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(iii) Fine amount is already paid by the accused.
(iv) The revision is disposed of accordingly.
JUDGE
*rrg./wasnik
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