JUDGMENT - R.K. JOSHI, J.:---The petitioner before the Court (original accused) was convicted by the learned Judicial Magistrate, First Class, Jalna, under section 85(1), Clauses 2 and 3 of the Bombay Prohibition Act. He was sentenced to simple imprisonment with a fine of Rs. 85/- under each count, with direction that the substantive sentences should run concurrently. In the appeal taken out in the Court of District Judge, (Appellate Side), Aurangabad, conviction under section 85(1), Clause 3 only was set aside and under Clause 2, the sentence was confirmed. Consequently, sentences awarded by the lower Court under Clause 2 was maintained. It is against this order, the accused has come in revision. 2. The facts are few and simple. On information being received at the Police Station at about 1.30 a.m. on the night between 18th and 19th July, 1973, two constables Shamsherrao and Suryakantappa attached to Jalna Police Station went to the spot known as New Modha and found a person, viz. the accused before the Court addressing abuses and taking irrelevantly. He was taken to the Police Station and from there to the Medical Officer who examined him at 2.40 a.m. The Medical Officer opened that the accused was under the influence of alcohol. On completing the preliminaries he was put on trial under the various counts referred to at the outset. The defence was that he was found at 10.30 a.m. and not at 1.30 p.m. as alleged, at Sadar Bazar and not near Baroda. Next he placed that he had taken some medicine prescribed by Dr. Satya Kumar just before his arrest. 3. This defence found little favour with both the lower courts and ultimately the learned Sessions Judge who modified the order of the lower Court found him guilty under Clause 2 of section 85(1) of the Bombay Prohibition Act. 4. This clause penalises a person whoever, in any street or public place or in any place to which the public have or are permitted to have access, behaves in a disorderly manner under the influence of drink. What is utmost important is that he must be shown to be under the influence of drink, in the sense he is unable to control himself and secondly, his behaviour must be disorderly, thirdly it must be in a public place. 5. What is utmost important is that he must be shown to be under the influence of drink, in the sense he is unable to control himself and secondly, his behaviour must be disorderly, thirdly it must be in a public place. 5. The prosecution mainly relied upon the evidence of the two constables who had taken charge of the accused. According to them, he was found near the Baroda Bank on a public road and was unable to stand firmly. He was addressing abuses and talking irrelevantly and his breath was smelling of liquor. He was referred to a doctor at 2.45 a.m. who has not been examined in this case and the doctor issued a certificate Exh. 9, in which he noted that the breath was smelling of liquor, his speech was incoherent, his gait was unsteady, pupils were dilated and was muttering irrelevantly. From these symptoms he opined that the accused was under the influence of alcohol. The Medical Officer has made note that the blood of the accused was not collected for chemical analysis. 6. Mr. Irani, the learned Counsel appearing for the petitioner raised mainly three points. In the first instance, he submitted that the evidence of the two constables being interested needs a critical scrutiny. Next he urged that the time 1.30 a.m. may be apparently odd but it is reality of life, that the second cinema show is over at 12.30 or 1.00 a.m. and some persons invariably pass by. The offence is said to have taken place on a road in Mondha near Baroda Bank, it could be legitimately inferred that there were passers by even if it be found otherwise the watchman at the Bank gate would have been available and should have been examined as an independent witness. The first infirmity he emphasised was of non-examination of the Doctor and the second was want of blood-examination by the Chemical Analyser. To fortify his last point, he strongly relied upon the provisions of section 129-A and 129-B of the Bombay Prohibition Act, 1949. A correct reading of these sections according to Mr. Irani, casts a burden upon the prosecution to collect the blood and if it is found to be contain 0.05 ethyl alcohol in the blood a person should be said to be under the influence of liquor. A correct reading of these sections according to Mr. Irani, casts a burden upon the prosecution to collect the blood and if it is found to be contain 0.05 ethyl alcohol in the blood a person should be said to be under the influence of liquor. The symptoms noted by the Medical Officer are not per se conclusive evidence of the person being under the influence of liquor. It is common knowledge that persons respond differently at different length of time according to the quantity of liquor consumed. While meeting this argument, it was urged by Mr. Bhonsale for the State that it is not incumbent upon the prosecution to collect the blood and refer it to the Chemical Analyser. Secondly, it is open to the accused to examine the Medical Officer of the Chemical Analsyer. Nowhere any suggestion was made to this witness that the accused was not under the influence of liquor. My attention was also further drawn to the provision of sub-section 2 of section 85 which inter alia lays down that in prosecution for an offence under sub-section (1), it shall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medical purpose. According to Mr. Bhonsale when the accused makes the statement that he had taken some medicine on the prescription of Dr. Satya Kumar, the burden would he on the accused. 7. In the first instance, independent witness being available, as urged by Mr. Irani, are not brought before the Court. Passers-by may or may not be available but the accused was found just near the gate of Baroda Bank, which is, I am told, on the main road. Some watchmen are bound to be on duty and it was not difficult for the prosecution to examine them. Next the medical certificate brought on record is not a substitute for the substantive evidence of the doctor. Neither section 129-A nor section 129-B of the Bombay Prohibition Act says that it has presumptive value and it could be good piece of evidence in the absence of the Doctor. Next the medical certificate brought on record is not a substitute for the substantive evidence of the doctor. Neither section 129-A nor section 129-B of the Bombay Prohibition Act says that it has presumptive value and it could be good piece of evidence in the absence of the Doctor. No reasons are ascribed by the prosecution as to why the doctor is kept behind, but the argument pressed into service for the State is that it is open to the accused to examine the doctor. It may be so, but by this contravance the prosecution cannot eliminate its preliminary duty and foist the responsibility on the shoulder of accused to lead the medical evidence. Then it is again worthy to note that sub-section 2 of section 129-A, the Medical Officer on examining such person is required to collect the blood and forward it in the manner prescribed. The specific concentration of 0.05 of liquor in the blood is a sure and certain test of the person being drunk. That positive test is not availed of and I am asked to draw presumption from the contents of the certificated that the accused must be drunk. Such presumption cannot be drawn and this is quite obvious from the plain language of both these sections 129-A and 129-B. Section 129-B inter alia says that the certificate under the hand of a Registered Medical Practitioner may be used as evidence of the facts stated in such certificate and not that the Court must use it and conclude that he is under the influence of liquor. The last point urged by Mr. Bhonsale founded on sub-section 2 of section 85, to my mind, is a misdirection on the point of law or half reading of the section. The impact is quite explicit. It says that on the prosecution showing that particular person is drunk, the presumption will be that he has consumed prohibited intoxicant and not a medical preparation. Taken at its face value, one may leave aside the defence of the accused when he says that under the advice of Dr. Satya Kumar he had consumed something which he is unable to name. But that does not fortify the prosecution case or prove the allegations levelled against him. Now what is the sum total of the evidence led before the Court? Satya Kumar he had consumed something which he is unable to name. But that does not fortify the prosecution case or prove the allegations levelled against him. Now what is the sum total of the evidence led before the Court? The constables stated in their evidence that the accused was smelling of liquor, addressing abuses and talking irrelevantly. The question would be whether he was behaving in a disorderly manner and on a public road. Disorderly behaviour can notes something more so as to cause discomfort to the members of the Society or neighbour. If a person were to lie in a corner or by the side of road, addressing abuses or muttering something irrelevant, one is act to ignore its nuisance value. As a matter of fact, if he was so drunk, he would not be in a condition to behave disorderly. These are all questions of facts and on the evidence placed before the Court with so many infirmities, it is difficult to sustain the conviction recorded by the learned Sessions Judge. In any event, the lacunae pointed out by Mr. Irani, to my mind, introduce an element of reasonable doubt to the benefit of which the accused would be entitled. 8. In the result, the revision application is allowed. Rule is made absolute. The accused is acquitted and discharged. The fine, if paid, be refunded Bail-bond stands cancelled. -----