CR.A/374/1998 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 374 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== STATE OF GUJARAT - Appellant(s) Versus MOHANBHAI SHANKARBHAI - Opponent(s) ===================================================== Appearance : MR UR BHATT APP for Appellant(s) : 1, MR HARIN P RAVAL for Opponent(s) : 1, MR AS SUPEHIA for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 24/11/2008 ORAL JUDGMENT 1. The challenge in this appeal preferred by the State of Gujarat CR.A/374/1998 2/6 JUDGMENT under Section 378 of the Code of Criminal Procedure ('Cr.P.C.', for short) is to the judgment and order rendered by the learned Metropolitan Magistrate, Court No.12, Ahmedabad ('learned Magistrate', for short) on dated 24.2.1998 in Summary Case No.1224 of 1998. By virtue of the impugned judgment, the learned Magistrate acquitted the respondent – accused from the charge of the offence punishable under Section 66(1)(B ) and Section 85(1)(3) of the Bombay Prohibition Act and for the offence punishable under Section 110 read with Section 117 of the Bombay Police Act. 2. As per the prosecution case, on dated 28.4.1997, while the Police Inspector Mr.R.B.Solanki was on patrolling duty, at that time the respondent – accused was found in a drunken position and was behaving indecently. A panchnama was drawn in presence of Panchas and PI Mr.Solanki lodged FIR in connection with the above-referred offences. During the course of police investigation, the accused was sent for medical examination, blood sample was collected from the persons of the accused by the Medical Officer and the same was forwarded for chemical analysis. After the receipt of the report of chemical analysis, chargesheet came to be filed in the Court of learned Magistrate. The learned Magistrate recorded the plea of the accused and the accused did not plead guilty and claimed to be tried. 2.1 The prosecution adduced its oral and documentary evidence. After the evidence was concluded, the learned Magistrate CR.A/374/1998 3/6 JUDGMENT recorded further statement of the accused, wherein he generally denied all the allegations levelled against him. After appreciating the oral and documentary evidence on record and after hearing learned advocates representing both the parties, the learned Magistrate delivered the impugned judgment, whereby he was pleased to acquit the appellant – accused. Being aggrieved and dissatisfied with the the impugned judgment, the State of Gujarat preferred this appeal. 3. None appeared for the respondent – accused. 4. Learned APP Mr.Bhatt for the appellant submitted that the prosecution successfully proved its case beyond any reasonable doubt against the accused. That as a matter of fact, no irregularities were committed by the Medical Officer, while extracting the sample of blood from the body of the accused. Therefore, the learned Magistrate acquitted the accused merely on technical grounds. That it is therefore requested that the appeal be allowed and the impugned judgment and order recording the acquittal of the respondent – accused be set-aside and the accused be convicted appropriately for the offences charged against him. 5. Now, before the oral and documentary evidence adduced by the prosecution in this matter is re-appreciated and re-analysed, it would be necessary to consider the principle established by Hon'ble the Apex Court in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415: CR.A/374/1998 4/6 JUDGMENT (1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3)Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 6. Keeping in mind the above principles and re-appreciating the oral and documentary evidence adduced by the prosecution in this case, it clearly transpires that the learned Magistrate did not commit any illegality while acquitting the accused. Considering the deposition of Medical Officer Mr.Dave at Exh.9 and the impugned judgment delivered by the learned CR.A/374/1998 5/6 JUDGMENT Magistrate, it clearly transpires that the learned Magistrate observed that there were violations of required Rules of Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 ('Rules', for short). In the impugned judgment, the learned Magistrate observed that while taking sample of blood from the body of the accused, the required precautions which were required to be taken by the Medical Officer under the Rules have not been taken. It is observed in the impugned judgment that the sample of blood was extracted from the body of the accused without undergoing due procedure of sterilization of the syringe used for the purpose. It was further observed that to collect the sample of blood, empty injection bottle was used and the concerned Medical Officer was unable to say as to whether the bottle was clean or not and who cleaned the bottle. It is further observed that on the sample bottle, there was a seal, but the specimen impression of the seal was not there in Form “B”. It was further observed in the impugned judgment that the Medical Officer was unable to reply as to which chemical was used by him for preservation of sample of blood. Appreciating the evidence on record, the learned Magistrate further observed that the sample remained unattended for the period from dated 28.4.1997 to 1.5.1997 and there was no evidence whatsoever as to during the period, how the sample was safeguarded. It is emerging from the evidence on record that the sample was not forwarded at the earliest for the purpose of analysis. Relying upon judgment delivered by this Court in the case of Jethaji Savaji Vs.State of Gujarat reported in 1988 GLR 927, the learned Magistrate observed CR.A/374/1998 6/6 JUDGMENT that the prosecution in the instant case failed to prove the safe custody of the same of blood from the period it was collected from the body of the accused and subsequently analysed by the chemical analyzer. It was further observed that in Form-”A”, there was no signature or any thumb-mark of the accused. 6.1Thus, appreciating the oral and documentary evidence on record, the learned Magistrate observed that there was violation of relevant Rules prescribed under the Rules. We do not find any illegality or any irregularity said to have been committed by the learned Magistrate while recording acquittal of the accused for the offences charged against him. There is no reason whatsoever for this Appellate Court while exercising its powers under Section 378 of the Cr.P.C. to interfere with the impugned judgment and order rendered by the learned Magistrate recording the acquittal of the respondent – accused. 7. For the aforesaid grounds, the appeal stands dismissed. (J.C.UPADHYAYA, J.) (binoy)