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CR.A/1320/2004 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1320 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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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 ?
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THE
STATE OF GUJARAT - Appellant
Versus
BHATT
ASHIT HARIHARKUMAR - Opponent
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Appearance :
MS. C.M.
SHAH, LD. APP for Appellant:
NOTICE SERVED
for Opponent:
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 05/04/2010
ORAL
JUDGMENT
Heard
learned APP for the appellant. None is present for the respondent,
though served.
The
appellant- State of Gujarat has preferred this appeal under section
378 of Criminal Procedure Code challenging the order of acquittal
dated 7/5/2004 passed by learned JMFC,Gandhinagar in Criminal Case
No. 633 of 1995, acquitting the respondent / original accused of the
charge of committing offence under section 85 (1) (3) and 66 (1) B
of the Bombay Prohibition Act. The case of the prosecution before
the Court was that the accused was caught on 5/12/1994 at 23.00
hours in an inebriated condition and he did not possess the permit
for consuming alcohol. As he appeared to be under the influence of
alcohol, he was proceeded against for committing offence under
section 85 (1) (3) and 66 (1) B of the Bombay Prohibition Act (
‘Prohibition Act’ for short). The court after recording evidence and
appreciating the same came to the conclusion that there was serious
lapses noticed on the part of the doctor who collected blood and
sent it for examination. After recording lack of evidence with
regard to lack of complete compliance with provision of Rule 4 (1)
of the Bombay Prohibition (Medical Examination And Blood Test) Rules
1959 (hereinafter referred to as the ‘Prohibition Rules’ for
brevity), the court came to the conclusion that the accused deserved
to be given benefit of doubt, and accordingly accused was acquitted
of the charge of committing offence punishable under section 85 (1)
(3) and 66 (1) B of the Prohibition Act vide order dated 7/5/2004,
which is impugned in this appeal under section 378 Cr.P.C.
Learned
APP Ms. Shah has taken this Court through the order impugned as well
as the original record that includes police report, the charge,
testimony of the prosecution witnesses and accused statement
recorded under section 313 Cr.P.C. She submitted that though
panchas did not support entirely the case of the prosecution,
doctor’s evidence could not have been treated to be an evidence
lacking veracity for establishing compliance with procedure for
taking blood from the accused. However she could not controvert from
the record the glaring discrepancies recorded in the testimony of
the doctor, P.W. no.1.
P.W.
No.1 the doctor, Exh. 11, has said that he had examined the accused
at 0.20 hrs on 6/12/1994 and he was smelling of alcohol and the
person was steady and the eye condition was normal. This testimony
of doctor wold therefore naturally deal serious blow to the
allegation of committing offence under section 85 (1) (3) & 66
(1) B of the Prohibition Act. The doctor has testified that the
blood sample was collected in the phial containing anticoagulant
preservative which is available in his locker and which was
prepared by himself. He also deposed with regard to affixing of seal
of the phial and applying of hospital seal thereof. In his cross
examination doctor has deposed that the phial was handed over to MNC
clerk in the morning. The phial was sent but in which content was
not known to him. He also admits in his cross examination that
before taking the blood from the accused, 5 minutes ago he had taken
blood sample from someone else also. He also admitted in his cross
examination that he does not remember as to how many days ago the
phial was prepared. He also admitted in his cross examination that
he has not kept any register nor does the hospital keep any register
in respect of preparation of phials nor does the phial is containing
its date of preparation. He admits that there is laboratory
departmental in Civil Hospital and technicians also. He also
admitted that the anti coagulant and preservatives are kept in the
custody of laboratory technician. He pleaded his ignorance with
regard to phial being prepared by laboratory technician. He admitted
that he had asked the concerned nurse for getting into coagulant
preservative. But he did not have any knowledge where from she
brought the same. He admitted that preservatives are put in phial in
a prescribed manner and proportion and in the same breath he admits
that he did not have any instruments in his chamber for pouring
potassium solvent and mercury chloride. He admits that pure
preservatives are required to be added and he pleaded ignorance with
regard to they being refined or not.
The
rest of the testimony of the other witnesses would be of no
importance at this stage.
Looking
to the testimony of the doctor and the discrepancies noticed herein
above would go to show that the order of acquittal needs no
interference under section 378 of Cr.P.C. Hence the appeal fails
and is accordingly dismissed. Bail bond shall stand cancelled.
[
S.R. BRAHMBHATT, J ]
/vgn
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