1. This is an appeal against an acquittal preferred by the State in a prosecution arising under Section 66(b) and Sections 85(1)(1) and 85(1)(2) of the Bombay Prohibition Act. 'The acquittal of the accused under Section 66(b) is not now challenged.
2. The finding of the Magistrate is that the accused was found drunk and was incapable of taking care of himself and also that he behaved in a disorderly manner under the influence of drink. The learned Magistrate, however, acquitted the accused on the ground that it was not shown by the prosecution that the accused had taken prohibited liquor. Now, this view cannot be supported in view of a recent decision of this Court reported in -- 'State v. Trimbak Dhondu' 57 Bom LR 541 (A).
The question whether an accused person has taken prohibited liquor or permitted liquor is Irrelevant for an offence under Section 85(1)(1) or Section 85(1)(2). If it is shown that an accused person was drunk and incapable of taking care of himself and also he behaved in a disorderly manner under the influence of drink, then the requirements of Section 85 are satisfied. Since the decision has proceeded upon an erroneous view of the law, the judgment cannot now be supported and must be set aside.
3. But Mr. Rele for the accused contends that the accused was suffering from a stomachache and so he happened to take the stuff. If the accused was suffering from a stomachache, it would have been more desirable for him to keep himself in-doors than to go out in a public street so as to be shown in a drunken condition and incapable of taking care of himself and also there would have been no occasion for showing that he was behaving in a disorderly manner under the influence of drink. In our view, therefore, there are no circumstances which will compel us to give a sentence less than the 'minimum'.
4. in the result, therefore, this appeal must succeed. The appeal will, therefore, be allowed and the order of acquittal will be set aside. We convict the respondent of offences under Ss. 85(1)(1) and 85(1)(2). However, it is not necessary to impose two separate sentences in respect of both these offences. Since the two offences arise out of the same incident it would be proper to impose only one sentence. The result is that the respondent is sentenced to suffer simple imprisonment under Section 85(1)(1) for a period of seven days and also to pay a fine of Rs. 25/- in default to suffer simple imprisonment for one week.
5. Appeal allowed.