JUDGMENT - VISHNU SAHAI, J.:---By this revision the petitioner has impugned the judgment and order dated 22-2-1992 passed by the Additional Sessions Judge, Thane, in Criminal Appeal No. 10/91 whereby the judgment and order dated 14-2-1991 passed by the J.M.F.C., First Court, Kalyan, in S.C.C. No. 8632 of 1991 convicting and sentencing him to undergo R.I. for 1 month and to pay a fine of Rs. 200/- in default to undergo R.I. for 10 days for the offence punishable under sections 85(1) of the Bombay Prohibition Act has been confirmed. 2.In short the prosecution case is that on 8-9-88 Dilip Daware who was serving as in charge of Thane S.T. bus stand along with Babasaheb Patil P.W. 2, was on patrol duty and at about 8.30 p.m. when they reached S.T. Stand some passengers complained to them that the petitioner who was conductor in Bus No. MTD 8453 had consumed alcohol. Accordingly they went to the bus and found that the petitioner was sitting on the conductor's seat under the influence of alcohol. They took him to the office of the Deputy Manager and thereafter to Mahatma Phule Chowk Police Station where the F.I.R. was lodged. After the F.I.R. he was sent for medical examination in K.M.C. dispensary at Ambernath, where Dr. Satpute found that he was smelling of alcohol, his pupils were dilated, gait was steady, speech was rational and pulse was 100 per minute. After usual investigation the petitioner was chargesheeted for an offence under section 85(1) of the Bombay Prohibition Act. As mentioned in paragraph 1 the trial Court found him guilty for the said offence and the Appellate Court dismissed his appeal. 3.The submission of Mr. Mundergi is that the conviction of the petitioner for the offence under section 85(1) of the Bombay Prohibition Act, is unsustainable because there is no evidence to show that he was behaving in a disorderly manner under the influence of drink. 4.I find merit in Mr. Mundergi's submission. Section 85(1) of the Bombay Prohibition Act reads thus : "85. Penalty for being drunk and for disorderly behaviour. 4.I find merit in Mr. Mundergi's submission. Section 85(1) of the Bombay Prohibition Act reads thus : "85. Penalty for being drunk and for disorderly behaviour. - (1) Whoever in any street or thorough fare 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 shall, on conviction, be punished, ........" A perusal of section 85(1) would show that merely being under the influence of drink drinking in any street or thorough fare or any public place on in any place to which public have or are permitted to have access is not punishable. An offence would only fall within the ambit of this provision, if at any of the said places under the influence of drink a person behaves in a disorderly manner. 5.I have perused the evidence on record and the same does not show that under the influence of drink the petitioner was behaving in a disorderly manner. In the instant case two eye-witnesses viz. Dilip Daware P.W. 1 and Babasaheb Patil P.W. 2 were examined. A perusal of their evidence shows that on the complaints of passengers of the bus that the petitioner was drunk they went to the bus and found him sitting on the rear seat of the bus under the influence of alcohol. In their statements they have not stated that under the influence of drink the petitioner was behaving in a disorderly manner. From the statement of Dr. Satpute it also cannot be inferred that the petitioner was behaving in a disorderly manner, when he medically examined him. It is significant to point out that none of the passengers who found the petitioner to be under the influence of alcohol have been examined by the prosecution. 6.Since there is no evidence to show that under the influence of drink the petitioner was behaving in a disorderly manner his conviction for the offence under section 85(1) of the Bombay Prohibition Act cannot be sustained and he should be acquitted for the said offence. 7.In the result this revision application is allowed. The conviction and sentence of the petitioner for the offence under section 85(1) of the Bombay Prohibition Act is set aside. He is acquitted of the said offence. He is on bail and shall not surrender to the same. 7.In the result this revision application is allowed. The conviction and sentence of the petitioner for the offence under section 85(1) of the Bombay Prohibition Act is set aside. He is acquitted of the said offence. He is on bail and shall not surrender to the same. His bail bonds stand cancelled and sureties discharged. In case he has paid the fine the same shall stand refunded to him. Rule is made absolute. In case an application is made for a certified copy of this judgment the same shall be issued within 15 days from today. Revision allowed.