{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.397 OF 1998 The State of Maharashtra Through PSO, Osmanabad Police Station APPELLANT VERSUS Shaikh Vaidualla Ajmattula Haq R/o Arab Gali, Osmanabad RESPONDENT ....... Mr.N.R.Shaikh, Assistant Public Prosecutor for appellant Mr.H.V.Tungar h/f Mr.C.R.Deshpande, Advocate for respondent ....... [CORAM : V.R.KINGAONKAR, J.] DATE : 18th September 2009 ORAL JUDGMENT: 1. Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, Osmanabad in Criminal Appeal No.104/1996 whereby the appeal preferred by the respondent came to be allowed and he stood acquitted for offence punishable u/s 85 (i) of the Bombay Prohibition Act, 1949. 2. The prosecution case is that, the respondent (accused) went to the premises of the Office of the Superintendent of Police, {2} Osmanabad in the noon of 21st May 1992. He was found in drunken condition. He shouted and behaved in disorderly manner under the influence of alcoholic preparation. He was caught by ASI Gaikwad with help of ASI Mehetre and was produced before PSI Vedpathak. A report was submitted regarding unruly behaviour of the respondent under the state of intoxication. Respondent was sent for clinical examination. The Medical Officer collected blood sample of the respondent (accused) and examined him. It was noticed that he was in drunken condition, for, his gait was unsteady, putils were dilated and the speech was incoherent. His blood sample was sent for analysis to the office of Chemical Analyzer. On basis of the material gathered during the course of investigation, he was chargesheeted for offence punishable u/s 85 (i) and 66 (1) (b) of the Bombay Prohibition Act. 3. The respondent (accused) denied truth into the accusations. He denied that he had behaved in disorderly manner under the influence of alcoholic preparation, in the relevant noon. Learned Chief Judicial Magistrate held that offence u/s 85 (1) of the Bombay Prohibition Act was duly proved against the respondent, but acquitted him of the offence punishable u/s 66 (1) (b) of the said Act. The respondent was sentenced to suffer Rigorous Imprisonment for 6 months and to pay a fine of Rs.500/-, in default to suffer Simple Imprisonment for one month. Being aggrieved by the order of conviction and sentence, the respondent preferred an appeal (Criminal Appeal No.104/1996), which came to {3} be allowed by learned Additional Sessions Judge, as indicated herein above. 4. Heard learned Assistant Public Prosecutor Mr.Shaikh and learned counsel Mr.Tungar for the respondent. 5. The respondent was employed as a Police Constable and was deputed to the Head Quarters. What transpires from the record is that he was dissatisfied with his deputation to the Head Quarters from the regular posting. Versions of PW3 Suryabhan Gaikwad and PW1 Harishchandra Mehetre would show that the respondent was found in the premises of the DSP office during the relevant noon. They vaguely stated that he was behaving in disorderly manner under influence of intoxicant. It is stated by PW Harishchandra Mehetre that the respondent was not able to walk and his gait was unsteady. He further stated that breath of the respondent was smelling of alcohol. Consequently, he and ASI PW Gaikwad took the respondent to the police station where a Panchanama was drawn regarding the drunken condition of the respondent. 6. Both the above witnesses are members of the Police Department at Osmanabad. They were experienced persons in the realm of detection of such crimes. It is admitted by PW Harishchandra (AS) that many a times he participated in the raids carried out by the police in prohibition cases. Both the witnesses {4} gave omnibus statements regarding the so called disorderly behaviour of the respondent. The expression “disorderly behaviour” does imply some indecent behaviour or abnormal behaviour, which has potency to disturb the public peace or to disturb the orderliness of the public tranquility. Mere vague statements to the effect that he was found behaving in disorderly manner will not suffice the purpose. Learned Additional Sessions Judge duly appreciated the ratio of “Popatlal Shah V/s State of Maharashtra” 1977 Mh.L.J. 855, in the context of fact situation of the present case. It is well settled that unless specific instances are spelt out to reach a conclusion that the behaviour of the accused was not in order, and that he was so behaving under the spell of alcoholic preparation, the charge of offence u/s 85 (1) could not stick to him. The prosecution failed to adduce reliable and cogent evidence to establish the said charge. It is true that the opinion of the Medical Officer corroborates case of the prosecution to the effect that the respondent was found to have consumed alcoholic preparation. The respondent has been acquitted for offence punishable u/s 66 (1) (b) of the Bombay Prohibition Act, by the learned Chief Judicial Magistrate. The said order of acquittal is never challenged by the prosecution and thus became final. 7. Considering the foregoing reasons, I am of the opinion that the respondent could be departmentally proceeded with for the alleged act of appearing in public place in drunken condition. However, the standard of proof, required in a criminal case, is not {5} demonstratedly achieved through the examination of the witnesses. There is no perversity in the view taken by the learned Additional Sessions Judge. It is well settled that when two views are possible, the acquittal rendered by the Court need not be disturbed only because some other view is also possible. 8. In the result, I find not much substance in the appeal and as such the same is dismissed. [V.R.KINGAONKAR, J.] drp/criapl397-98