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2010 DIGILAW 773 (ALL)

Dharam Pal Singh v. State Of U. P.

2010-03-08

A.P.SAHI

body2010
JUDGMENT Hon'ble Amreshwar Pratap Sahi,J. Heard Sri Amit Saxena learned counsel for the petitioner and the learned standing counsel. 2. The petitioner who is a police constable has been dismissed from service on the charge that during the performance of his official duty he was under the influence of alcohol which resulted in escape of two under trials from his custody. Even though it is not necessary but it would be appropriate to mention that the two under trials were dreaded criminals booked under the Gangster Act. This fact is being stated only to indicate the responsibility which was entrusted to the petitioner. 3. The incident as discussed in the inquiry report indicates that when the petitioner was present in the premises of the District Judgeship Moradabad, the said two under trial prisoners were along with the petitioner who had been handcuffed. They escaped. The inquiry report indicates that the petitioner set up his defence that some hawker had arrived from when the petitioner had a glass of water where after he went unconscious. The state of unconsciousness prolonged was prolonged for a considerably long time to enable the said under trials to escape and when the petitioner recovered from his consciousness he is stated to have made efforts to know about their whereabouts. He thereafter went to the Police Station concerned when they had escaped. However, he deposited the key of the handcuff with the official concerned where after the report was lodged and the matter proceeded. 4. From the inquiry report it also appears that the petitioner was sent for a medical examination and one Dr. Surendra Singh is stated to have examined the petitioner.The petitioner had been sent along with one constable Bhupendra Chaubey for the said medical examination. The doctor found him to be under the influence of alcohol and the medical report was prepared to that effect. 5. During the inquiry proceeding the said constable Bhupendra Chaubey as well as the Doctor were both examined in the presence of the petitioner and he was given an opportunity to cross examine them. They categorically stated that the petitioner was under the influence of alcohol. The doctor also proved the report which had been prepared by him in this regard. 6. They categorically stated that the petitioner was under the influence of alcohol. The doctor also proved the report which had been prepared by him in this regard. 6. Sri Amit Saxena learned counsel for the petitioner has advanced his submission primarily on the ground that the said medical examination was not followed by any medical test namely either a blood test or any other medically recognised test for the purpose to establish that the petitioner was under the influence of alcohol. According to him the absence of such a medical test having not been carried out is evident which stand has been admitted in the counter affidavit. It was disputed that the petitioner was under the influence of alcohol. In view of the fact that the charge has not been proved, the petitioner has been punished in that event disproportionately. 7. Learned standing counsel on the other hand contends that this is a disciplinary inquiry and not a criminal proceeding where the standard of proof has to be such as suggested by the learned counsel for the petitioner and in view of the fact that the medical examination was carried out by the doctor which was proved by him and also by the statement of the concerned police officials was sufficient to establish that the petitioner had consumed? alcohol during duty, and hence the charge was brought home by the prosecution so as to warrant this extreme punishment of dismissal. 8. I have perused the affidavits and the statements which were recorded as also the inquiry report. From a perusal thereof of it appears that while cross examining the doctor concerned the petitioner had an opportunity to put a specific question in relation to the smell of alcohol viz-viz Pudeen Hara. The doctor had categorically replied to this that the smells are entirely different. It further appears that the petitioner had set up a case that he had one glass of water where after he had become unconscious and since he was ailing on account of an abdominal pain he had consumed Pudeen Hara. However, while filing the appeal the petitioner in ground no.5 has categorically stated that he had not taken only Pudden Hara but he had also taken"Mrityu Sanjeevni Sura" which was a alcohol based ayurvedic medicine. 9. However, while filing the appeal the petitioner in ground no.5 has categorically stated that he had not taken only Pudden Hara but he had also taken"Mrityu Sanjeevni Sura" which was a alcohol based ayurvedic medicine. 9. It is not known as to why the petitioner did not introduce this information to the doctor during the cross examination. In my opinion this was a deliberate avoidance of the petitioner during the cross examination to explain his conduct with regard to the consumption of ''Mrityu Sanjeevni Sura" which according to his own admission in the memo of appeal was an alcohol based liquid. In view of this the only inference that can be drawn is that the petitioner had taken some thing which contained alcohol. The petitioner has nowhere led any evidence of purchasing any such medicine on prescription or anything that such a liquid was a medicine for stomach ache. 10. Sri Amit Saxena learned counsel for the petitioner contends that while drawing the aforesaid inference the question of medical test should also have been considered by the authorities concerned. 11. Even if for the sake of arguments it is admitted that the medical test as suggested by the learned counsel for the petitioner had not been conducted, the same in my opinion would not in any way dilute the opinion already framed by the punishing authority in relation to the consumption of alcohol which is based on the statement of Moharrir of the Police Station concerned where the petitioner had arrived in the Police Station under intoxication. Not only this, the statement of the doctor has not been faulted. In such a situation the absence of the medical test cannot in any way impede or bring about the conclusion to the contrary that the petitioner had not consumed alcohol. 12. The act of the petitioner of consuming alcohol during duty also involves moral turpitude as expressed in the case of Durga Singh Vs. State of Punjab AIR 1957 Punjab Pg 97. 13. In view of the facts and circumstances of the case there is no ground for interference under Article 226 of the Constitution. The petitioner was responsible for the escape of two dreaded criminals and the punishment is proportionate. There is no merit in this writ petition. 14. The writ petition is dismissed.