(1) Cri. Application No. 2914 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 2914 of 2011 The State of Maharashtra, Through : Vitthal Dhondiram Shawale, .. Applicant N.P.C. - B.No. 703, (Original Latur (R) Police Station, Latur. complainant) versus Gunwant Apparao Katlakure, Age : 44 years, Occupation : N.P.C., B.No. 735, R/o. Police Head Quarter, .. Respondent Latur. (Original accused) ....................... Mr. S.N. Kendre, Additional Public Prosecutor, for the appellant. Mr. S.J. Salgare, Advocate, holding for Mr. Satej S. Jadhav, Advocate, for the respondent. ........................ (2) Cri. Application No. 2914 of 2011 CORAM : SHRIHARI P. DAVARE, J. DATE : 23RD NOVEMBER 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant / State seeking leave to file appeal challenging the judgment and order of acquittal dated 16th March 2011, rendered by learned 4th Judicial Magistrate (F.C.), Latur, in S.T.C. No. 1551/2009, thereby acquitting the respondent i.e. original accused for the offence punishable under Section 85(1) of the Bombay Prohibition Act, 1949. 3. Parties hereinafter are referred to as per their original status i.e. complainant and accused. 4. As per complaint, there are allegations against the accused, that the accused was on duty as Driver at Police Headquarter and at that time, he consumed liquor and was under influence thereof. The said allegations were narrated to the complainant by P.S.O. B.R. Bhande and asked him to take him for medical examination. Accordingly, accused was taken for (3) Cri. Application No. 2914 of 2011 medical examination and Medical Officer Dr. Sidhiki Zioddin Nairoddin (PW 1) examined him and also took his blood sample and sent it to Chemical Analyser for examination and report. On examination, Dr. Sidhiki (PW 1) found tht the accused had consumed liquor. Moreover, Chemical Analyser's report regarding blood of the accused also disclosed that 0.103 percent W/V of ethyl alcohol was found. 5. To substantiate case of the prosecution, the prosecution examined two witnesses, namely, Medical Officer Dr. Sidhiki Zioddin Nairoddin (PW 1) and Naik Police, Vithal Dhondiram Shevale (PW 2). 6. The testimony of Dr. Sidhiki (PW 1) discloses that he examined the accused and found smell of alcohol from his mouth. However, he has stated that his speech was normal, and his pupils, walking, breathing were all normal. He has also stated that due to smell from mouth, he came to the conclusion that the accused consumed liquor. Accordingly, he issued a certificate which is produced at Exhibit 17. He also stated that he collected blood sample of the accused and sent it to Chemical Analyser for examination purpose. Chemical Analyser's report Exhibit 24 discloses that blood of 3 ml. was received by him and he found that the blood contained 0.103 percent W/V. of ethy alcohol. (4) Cri. Application No. 2914 of 2011 However, the said blood was not examined immediately, since although the blood sample was taken on 11-3-2009, it was sent to C.A. on 12-3-2009 and report thereof is dated 19-3-2009. Moreover, it is also apparent from Exhibit 17, that the speech, walking and pupils of the accused were normal, and he was not found under the influence of liquor. Moreover, the contents of alcohol found in the blood of the accused i.e. 0.103 percent appears to be at low extent. The C.A. report discloses that if quantity of alcohol found in the blood is more than 0.05 percent, then a person is said to have consumed more alcohol than the requisite quantity. However, in the instant case, it appears that quantity of alcohol found in the blood of the accused i.e. 0.103 percent appears to be lesser than the aforesaid quantity. Hence, it cannot be construed that the accused was under the influence of drink at the relevant time. Besides, it is also material to note that the prosecution has not examined P.S.O. Mr. B.R. Bhande who would have been a vital witness. Pertinently, there is nothing on record to hold that the accused was on duty on the relevant day when he alleged consumed the liquor. 7. Apart from that, Section 85(1) of the Bombay Prohibition Act, 1949, contemplates two ingredients i.e. (i) behaviour in a disorderly manner, and (ii) under the influence of drink. The expression "disorderly behaviour" implies some (5) Cri. Application No. 2914 of 2011 indecent behaviour or abnormal behaviour, which has potency to disturb the public peace or to disturb the orderliness of the public tranquility. However, it is apparent from the evidence of Dr. Sidhiki (PW 1), that speech of the accused was normal, so also, pupils, walking and breathing were normal, and he also behaved normally. Moreover, no specific instances have been cited in respect of the alleged disorderly behaviour of the accused, and therefore, in the absence of such specific instances of disorderly behaviour, it cannot be concluded that the accused violated provision of Section 85(1) of the Bombay Prohibition Act, since both the ingredients of Section 85(1) of the said Act have not been established against the accused. Accordingly, the prosecution has failed to prove and establish the said charge against the accused. 8. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view and same does not appear to be perverse. Moreover, reasoning adopted by the learned trial court therefor, also cannot be faulted with, and hence, present Criminal Application deserves to be dismissed. 9. In the result, present Criminal Application, which is sans merits, stands dismissed. Leave to file appeal is refused. (6) Cri. Application No. 2914 of 2011 10. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka2914