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2020 DIGILAW 964 (BOM)

Jagdish v. State Of Maharashtra

2020-09-11

ANIL S.KILOR, V.M.DESHPANDE

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JUDGMENT V. M. Deshpande, J. - Hearing was conducted through Video conferencing and the learned counsel agreed that the audio and visual quality was proper. 2. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 3. Police Sub-Inspector Smt. Priyanka Godmale of Pardi Police Station, Nagpur lodged a report with said Police Station on 12.06.2020, stating therein that on 11.06.2020, she was attached to Pardi Police Station and was discharging her duties as a Day Officer from 10.00 hours till 21.00 hours. During her duty time, at about 20.00 hours one individial came to Police Station and informed that one person on Nagpur-Bhandara Road at Pardi square, under the influence of liquor, is misbehaving. The first information report states that upon getting such information, she along with police staff, including Police Constable Akash (B. No.6923) reached to Pardi square. That time, she noticed that one person was under the influence of liquor. On making inquiry with him, he disclosed his name as Jagdish Wasudeo Lanjewar, resident of Plot No. 21, Vinobha Bhave Nagar, behind Traffic Police Chowki, Pardi, Nagpur (applicant). Therefore, he was taken in the vehicle and was brought to the Police Station. The first information report further states that after the medical examination of said Jagdish (applicant), it was found that he was under the influence of liquor and therefore, an offence punishable under Section 85 of the Maharashtra Prohibition Act, was registered against the applicant, vide Crime No.384 of 2020. 4. Since the offence was bailable, the applicant was released on bail by the Police Authority itself. 5. The applicant has approached to this Court for exercising its inherent power under Section 482 of the Code of Criminal Procedure for quashing the First Information Report. 6. We have heard Shri Sumedh Kadam, the learned counsel for the applicant and Shri T. A. Mirza, the learned Additional Public Prosecutor for the State. 7. The submission of the learned counsel for the applicant is that; i) The applicant is falsely implicated. ii) The Blood Test or Urine Test was not conducted to determine as to whether the applicant was under the influence of liquor. 8. As per the submission of Shri T. A. Mirza, learned Additional Public Prosecutor for the State, the applicant was arrested at the time of the incident itself from the spot when he was misbehaving under the influence of liquor. 8. As per the submission of Shri T. A. Mirza, learned Additional Public Prosecutor for the State, the applicant was arrested at the time of the incident itself from the spot when he was misbehaving under the influence of liquor. He, therefore, prays that the application be dismissed. 9. The notice on this application was issued on 14.08.2020 and at that time, this Court observed that the investigation may continue, however, charge sheet against the applicant shall not be filed, until further orders. Today, when this application was taken fro hearing, learned Additional Public Prosecutor submitted that entire investigation is over and he handed over to us the complete investigation papers. 10. We have given our anxious thought to the given set of facts. The First Information Report shows that the incident occurred in between 18.00 hours to 19.00 hours on 11.06.2020. The information was received at Police Station, as per the printed First Information Report, at 20.00 hours and the entry in general diary vide reference No.38 was taken at 23.48 hours. 11. In this case, the applicant is booked by the police authorities for committing offence punishable under Section 85 of the Maharashtra Prohibition Act. Section 85 (1) of the Act reads thus: "85. Penalty for being drunk and for disorderly behaviour. - (1) Whoever in any street or thoroughfare 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) for a first offence, with rigorous imprisonment for a term which may extend to six months and with fine which may extend to [ten thousand rupees: Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgement of the Court such imprisonment shall not be less than three months and fine shall be less than ten thousand rupees; and (b) for a subsequent offence, with rigorous imprisonment for a term which may extend to one year and also with a fine of ten thousand rupees: Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than six months and fine shall not be less than seven thousand rupees. (2) In prosecution for an offence under subsection (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 medicinal purpose. From the above, it is clear that to attract the said penal provision, the prosecution has to prove:- (i) The person charged was under influence of liquor. (ii) He was found present under the influence of liquor in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access. And, (iii) at such place behaves in disorderly manner under the influence of liquor. From the plain reading of sub section (1), merely because a person was under the influence of liquor at the relevant time is not sufficient to attract the penal provision. Secondly, even a person charged was under the influence of liquor and was found at public a place or street or thoroughfare, still he cannot be charged for the offence punishable under Section 85 of the Act. To charge a person under Section 85 of the Act, a person must be under the influence of liquor at a public place or street or thoroughfare and there he behaves in "disorderly manner under the influence of liquor." Thus, if all these ingredients are found collectively then only it may be said that the person has committed an offence punishable under Section 85 (1) of the Act. 12. In view of the order dated 14.08.2020, as per the submission of the learned Additional Public Prosecutor, the investigation was conducted and completed. The reply on behalf of the prosecution is also filed on record along with the medical examination report of the applicant. As per the completed investigation, there are three statements in the investigation papers. Those statements are of Police Constable Akash Shahane, Police Constable Rajesh Naik and Police Constable Manish Ramrashile Tiwari, which are recorded on 28.06.2020, 17.07.2020 and 29.07.2020, respectively. 13. The First Information Report lodged by PSI Priyanka Godmale, would show that when she was discharging her duties as a Day Officer, one person came to Police Station and gave information to the Police that one individual is behaving in disorderly manner under the influence of liquor. 13. The First Information Report lodged by PSI Priyanka Godmale, would show that when she was discharging her duties as a Day Officer, one person came to Police Station and gave information to the Police that one individual is behaving in disorderly manner under the influence of liquor. Upon receiving such an information, PSI Priyanka Godmale along with her staff reached to the spot of the incident. The identity of person who gave information to the police is not brought on record. In fact, in our view, when the said informant disclosed the commission of the offence, the Police Officer was duty bound to record his statement immediately or after some time. In the present case, statement of the said informant who disclosed the commission of offence, is not recorded nor any step was taken by the investigation agency to identify the said person. At least, the entire case papers which were handed over to us by the learned Additional Public Prosecutor, are totally silent about any step being taken to locate the identity of the person who gave information in the Police Station. 14. Further, as per the First Information Report lodged by PSI Godmale when she along with Akash (Police Constable) reached to the spot, she noticed one person under the influence of liquor. It would be useful to reproduce the relevant portion of the First Information Report as under:- 15. Thus, from the aforesaid, in our view, one can deduce two aspects; i) When Police party reached the Pardi square, one person was found to be present under the influence of liquor. However, the First Information Report is totally silent that he was found to be in a position of creating any nuisance, ruckus, misbehaving with anybody or was behaving in a disorderly manner, and ii) after the inquiry, he disclosed his identify. 16. As per the report, Police Constable Akash was accompanied with PSI Godmale. The statement of Police Constable Akash is recorded on 28.06.2020. It would be interesting to note that this Akash did not support PSI Godmale about the identity, as it could be seen from his statement. The relevant portion of the statement of Akash is reproduced as under :- 17. Thus, from the statement of Akash, it is clear that when the inquiry was made with that person, he was not able to give his name and address. The relevant portion of the statement of Akash is reproduced as under :- 17. Thus, from the statement of Akash, it is clear that when the inquiry was made with that person, he was not able to give his name and address. Thus, there is variance in between the First Information Report and the statement of Akash regarding the identification of the person. 18. Further, though Akash states in his police statement that when the police party reached to Pardi square, they found that one person was shouting under the influence of liquor, however, there is no such disclosure in the First Information Report. Further statement of Akash is recorded on 28.06.2020 i.e. after sixteen days and no explanation is offered in the statement for recording the statement belatedly. Here it is to be noted that Akash was discharging his duty as Police Constable in the very same police Station. Therefore, his presence ought to have been there from 12.06.2020 onward till 28.06.2020, but for the reason best known to the Investigating Officer, his statement was not recorded immediately. 19. Insofar as the statement of PC Rajesh Naik is concerned, his statement does not show that he accompanied the police party. His statement shows that he took the applicant for his medical test at Indira Gandhi Shashkiya Vaidyakiya Mahavidhalaya wa Rugnalaya, Nagpur. 20. The statement of PC Manish, which is recorded on 29.07.2020, shows that at the place of the incident, the person apprehended was not able to disclose his name and after bringing him in the Police Station, he disclosed his name as Jagdish Lanjewar. We are not able to accept his statement for the same reason for not accepting the statement of PC Akash. 21. According to the prosecution case, the applicant was found under the influence of liquor at Pardi square, which is a public place. As per the FIR, time of offence is in between 7.00 p.m. to 8.00 p.m. It is not disputed before us that Pardi square is a busy locality. If that be so, if the applicant was behaving in disorderly manner in a public place, which is the essence of offence under Section 85 of the Act, he would have been noticed by many persons and shopkeepers whose shops are located in the area. If that be so, if the applicant was behaving in disorderly manner in a public place, which is the essence of offence under Section 85 of the Act, he would have been noticed by many persons and shopkeepers whose shops are located in the area. However, the investigating officer, for the reasons best known to her, did not record statements of any of the independent individuals. The completed investigation papers do not contain even the spot panchanama. In our view, these two are fatal to the prosecution case. 22. The prosecuting agency has filed Medical Report of the applicant, which shows that medical officer of Indira Gandhi Medical College and Hospital, Nagpur examined the applicant at 8.15 p.m. From the said report, it is clear that the blood sample of the applicant was not taken for testing. 23. As per the prosecution case and as per the First Information Report, at 20.00 hours the information was received and thereafter, the steps were taken. The Medical Report would show that at 8.15 p.m. the applicant was examined at Indira Gandhi Shashkiya Vaidhkiya Mahavidhalaya wa Rugnalaya, Nagpur and undisputedly, the distance between the Pardi Police Station and the said hospital is more than eight kilometers. Therefore, it is not possible that the police party can reach within a period of 15 minuets to the said hospital. 24. In our view, the authoritative pronouncement of the Hon'ble the Apex Court in Bachubhai Hssanalli Karyani Vs. State of Maharashtra, (1971) 3 SCC 930 , conclusively clinches the issue in favour of the applicant. The Hon'ble Apex Court was considering the case wherein Bachubhai, a driver, was convicted by the learned Presidency Magistrate, 4th Court, Girgaum, Bombay for rash and negligent driving under Section 304-A of the Indian Penal Code and for other penal provisions. He went in appeal before the High Court and the High Court upheld the conviction. 25. As per the verdict given by the High Court, Bachubhai was found to be drunk in the night and he was driving the car rashly and negligently at excessively high speed. What was argued before the Hon'ble the Apex Court on behalf of Bachubhai was that Dr. Kulkarni, who examined Bachubhai based his conclusion merely on the facts that the appellant's breath was smelling of alcohal and his gait was unsteady and his speech was incoherent and that his pupils were dilated. What was argued before the Hon'ble the Apex Court on behalf of Bachubhai was that Dr. Kulkarni, who examined Bachubhai based his conclusion merely on the facts that the appellant's breath was smelling of alcohal and his gait was unsteady and his speech was incoherent and that his pupils were dilated. Urine test of driver was not carried and through blood was collected and sent for chemical analysis, the report was not placed on record. 26. In this backdrop, the Hon'ble the Apex Court found that no urine test was carried and though the blood of the applicant was sent for chemical analysis, no report of the analysis was produced by the prosecution. In this backdrop, the Hon'ble the Apex Court ruled that it cannot be definitely held that Bachubhai was drunk at the time of the incident occurred. 27. In the present case also the doctor did not obtain blood sample and his finding was based on his observation that applicant's breath was smelling of alcohol and his gait was unsteady and his speech was incoherent. 28. The completed investigation papers, as placed before us by the learned Additional Public Prosecutor, show that the FIR is totally silent that at public place, at the relevant time, the applicant was found misbehaving. The fact of misbehaving is introduced in this prosecution case after lapse of 16 days, in the statements of police constables who were readily available in the police station. In our view, that casts serious doubt about the said aspect. In order to fill up the lacunae in the prosecution case, the said aspect is introduced in the belated statements. Though recording of statements belatedly cannot, by itself, a ground to reject the prosecution case, at the same time, if it is writ large, that too to cover up the lacunae in the prosecution case, such statements surfaced belatedly, it is always open for the Court not to put reliance on the said statements. 29. In our view, the blood and urine tests will play its important role in the present case because the person who gave the information to the Police Station is not examined by police during investigation. Further, there is a variance in between the statement of the first informant and the police Constable. Non examination of independent witnesses and not drawing spot panchanama gives rise to the serious doubts on the prosecution case. Further, there is a variance in between the statement of the first informant and the police Constable. Non examination of independent witnesses and not drawing spot panchanama gives rise to the serious doubts on the prosecution case. Further, there is an unexplained delay in recording statements of the police constables themselves. Therefore, we are of the view that in such circumstances, it would be futile to conduct the trial against the applicant. In our view, it will be nothing but a sheer waste of time apart from the fact that it may cause prejudice to the applicant. Therefore, we pass following order :- ORDER i] The Criminal Application is allowed. ii] The First Information Report registered against the applicant vide Crime No.384 of 2020 with Police Station, Pardi, Nagpur for the offence punishable under Section 85 of the Maharashtra Prohibition Act, is hereby quashed and set aside. iii] The criminal application is disposed of.