S.M. Shah, J.
1. This revision application has been filed by the accused against the order dismissing his appeal passed by the learned Sessions Judge at Thana, which appeal was filed by him against the order of conviction and sentence passed by the learned Judicial Magistrate at Thana for an offence under Section 85(1)(i) of the Bombay Prohibition Act. The accused was sentenced to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 50 only, in default to suffer further simple imprisonment for 15 days.
2. The case for the prosecution was that on June 29, 1959, a motor accident on the Bombay-Agra road was reported to the Thana Town Police Station and the police constable Mane attached to that police station started to go to the scene of the accident at about 5-30 P.M. on that day. On his way to the scene of the accident, the police constable saw a touring car standing near the State Transport Workshop on the same road and found that that car had met with an accident. The police constable saw the accused sitting in the rear seat of that car and it was alleged by the prosecution that the accused was then drunk. Apanchnama of the condition of the accused was thereafter made and he was sent for examination to the Medical Officer, Thana, who found that he was overcome by alcohol. The accused was then put up for trial for offences under Section 85(1)(i) and 85(1)(iii) of the Prohibition Act. In defence the accused stated that he was sitting in a closed car. The police, according to him, came there after some time and asked him as to what had happened. He replied that he did not know anything at all. Then, according to him, he was told that he was smelling of alcohol and in reply he stated that he was ill. and had taken some medicine. He further stated that he was suffering from high blood pressure, that when he was excited he could not speak or walk properly and that, therefore, he had taken a medicine.
3. The prosecution led its evidence in support of the charge levelled against the accused and the learned Magistrate after considering the evidence came to the conclusion that the prosecution had proved that the accused was drunk and that he was found on a public road unable to take care of himself. The learned Magistrate also held that the accused was guilty of having been found drunk without a permit on a public road. He, however, sentenced him to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 50 only. Against this order of conviction and sentence passed by the learned Magistrate the accused took an appeal to the Sessions Court at Thana. The learned Sessions Judge after hearing the arguments advanced both for the accused as well as for the prosecution and going through the record agreed with the findings recorded by the learned Magistrate and dismissed the appeal. It is against the order of the learned Sessions Judge dismissing the appeal that the present revision application has been filed in this Court.
4. Mr. Shrikande, the learned Counsel for the petitioner, contended that on the evidence the accused was found sitting in his own car on the Bombay-Agra Road, that the car was a sedan car, that there was neither accessibility nor visibility so far as the condition of the accused himself was concerned and that, therefore, he could not be said to have been found on a public road in a drunken condition. He urged that in order that a person mightbe charged for having been drunk in any street or thoroughfare or public road or any place, to which, the public have access, it was necessary that the person alleged to have been so drunk must be accessible by members of the public and also his condition of being drunk must be clearly visible to the people going along the road, and that, if either of these conditions was not fulfilled, then he could notbe guilty under Section 85(1) of the Prohibition Act. Mr. Dalvi, on behalf of the State, on the other hand, contended that our own High Court had held in a similar case, where a man was going along the public road in a tonga in a drunken condition, that he was guilty under s.85(1)(i) of the Prohibition Act, because, although the man was travelling in a tonga, the tonga was itself going' along the public road and, apart from the question of accessibility or visibility which was not at all considered in that case, the very fact that he was travelling in a drunken condition in a tonga on a public road was enough to convict him of the offence under Section 85(7)(i) of the Act. That decision was given by Mr. Justice Bavdekar in the case of Baldarkhan Kasamkhan Pathanv. The State of Bombay (1955) Criminal Revision Application No. 670 of 195 (Unrep.). In that case, the learned Judge was confronted with the question as to whether a person who was drunk and who was going along a public road in a tonga could be said to be incapable of taking care of himself so that he could be convicted under Section 85(7)(i) of the Act. From the judgment itdoes not appear that there was any evidence led on behalf of the prosecution to show that the person so going in the tonga was either prattling or chattering or making any sort of nuisance or mischief or using any abusive language. He was just sitting in the tonga and was being carried to his destination by the tonga driver. In spite of it, the learned Judge held that that man must be deemed to have been incapable of taking care of himself by reason of his having been drunk because, had it not been for the fact that he had placed himself in the charge of the tonga driver for the purpose of being' taken to his destination, he would certainly, by reason of the fact of his being overpowered by the drink taken by him, have been incapable of taking care of himself on the public road. According to the learned Judge, the test was not that he was making a nuisance of himself to the members of the public' going along the road. The test was as to whether he was in such a state in which he could not do for himself what he had to do if care had to be exercised. It would thus appear that all that the prosecution would have to prove in such a case for substantiating a charge under Section 85(7)(i) would be that the man was drunk in the sense that he was over-powered by alcohol with the symptoms which generally follow this kind of intoxication, and if the prosecution succeeded in showing that, then, even if that man was going along a public; road, in a vehicle either private or public, either visible or invisible, or accessible or inaccessible, he would be deemed to be incapable of taking care of himself on the hypothesis that, if he were not going along in the vehicle, if he were going by himself on the public road, he would be exhibiting a sort of behaviour which would be inconsistent with the behaviour of a normal man.
5. This decision, to my mind, clinches the matter so far as the present application is concerned. The argument advanced by Mr. Shrikande, the learned Counsel for the accused, that the accused, though drunk, could not be said to have been found in a public place on account of the fact that there was no accessibility to the car and no visibility as the accused was sitting in a closed car, is fully met by the decision cited above. The test laid down by the learned Judge is not whether the vehicle was open or closed, or the vehicle was accessible to the public or the man was visible inside the vehicle, but whether the person who was drunk was travelling in a vehicle which was going along a public road. As the learned Judge put it, with respect quite rightly, the only impediment between the person so travelling in the vehicle and the public road would be the vehicle itself, and, while considering the question whether such a person could be said to be on the public road, the medium which intervenes should be ignored. Therefore, the fact that a man is going in a vehicle on a public road in a drunken condition cannot exempt him from the mischief of Section 85(1)(i) ofthe Prohibition Act.
6. The next argument of Mr. Shrikande is that there was no evidence on the record of the case to show that at 5 or 5-30 P.M. when the accused was found sitting in his own ear he was drunk, or that he was incapable of taking care of himself. All that was proved by the prosecution, according to him, was that the accused was smelling of alcohol and that none of the witnesses deposed to the accused having either used any abusive language or behaved in an abnormal manner. Accordingly Mr. Shrikande submitted that if there was no evidence to show that the accused was in a drunken condition incapable of taking care of himself, then whatever symptoms the doctor might have found after one and a half hours when the accused was examined by him did not improve the matters for the prosecution at all. According to him, what the prosecution really should show was the incriminating condition of the accusedat the time when he was first seen in the car. This argument can be said to have been met also by the judgment of Mr. Justice Bavdekar, though not so exactly as his first argument. In that case the accused was going along in a tonga in a drunken state as alleged by the prosecution. But no evidence seems to have been led to show that on the spot where he was found any medical examination had taken place so that it could be said that he had exhibited all the symptoms of a drunken or an intoxicated man. There also, the doctor examined him some time later and it was upon the evidence of that doctor that it was found in that case that the accused was intoxicated and overwhelmed by alcohol and. that he exhibited a number of symptoms which clearly pointed to his having been in a state of intoxication. It was upon that evidence that the conviction of the accused was based in that case. The facts in this case are not very dissimilar. Here, the accused was found sitting in his own. car on the Bombay-Agra Road, according to one version at 5 P.M. and according to another at 5-30 P.M. He was found smelling of alcohol The evidence also shows that he gave out his name when he was asked about it and, according to his own statement, when he was asked whether he knew anything about the accident that had occurred some time ago, he said he did not know anything about it. If the charge of being drank and incapable of taking care of himself was to be proved only by this evidence, then the prosecution would not succeed, but as it happens in every case of this nature, the drunken condition, of an accused person is not sought to be proved merely by the evidence of a person who found him smelling of alcohol, but he is generally taken to the hospital for being properly checked up by the medical authorities. It is true that in this case the accused was examined by the doctor in the Thana Hospital at 6-30 P.M. Nevertheless, instead of showing any depreciation in the effect of intoxication on account of the lapse of time between 5 P.M. and 6-30 P.M. the doctor found all such symptoms as generally accompany the state of intoxication. Mr. Shrikande, however, contended that if those symptoms were found at 6-30 P.M. by the doctor at the hospital, there was nothing to show that those symptoms really existed when be was found in the car at 5 or 5-30 P.M. and that, therefore, he could not be said to have been found in a drunken condition on a public road and incapable of taking care of himself. At. the same time, however, it was conceded by Mr. Shrikande that the accused had not taken any food or drink during this short interval of one or one and a half hours, and I think, all those who have the experience of drinks know fully well that the effects of alcoholic drinks take some little time before they manifest themselves, and that after the effects of such a drink are completely manifested, they gradually wear down, but that also takes a considerable time. In any event, in the absence of any evidence to show that during this interval of one or one and a half hours between the time the accused was detected in the car and the time he was taken to the doctor at the hospital for being examined, the accused had taken any food or drink so as to create a state of intoxication, the symptoms which were found in him by the doctor could well be attributed only to his having taken the alcoholic drink in rather an excessive quantity prior to his being detected in his car. In that view of the matter, and in view of the decision of Mr. Justice Bavdekar in the criminal revision application referred to above, there can be no doubt that the accused on the strength of the medical evidence was really drunk and incapable of taking care of himself, though he was sitting in his own sedan car on the Bombay-Agra Road. Accordingly, in my opinion, the conviction of the accused under Section 85(1)(i) of the Prohibition Act was perfectly justified in the circumstances of the case and on the evidence on the record. The order passed by the learnedMagistrate and confirmed by the learned Sessions Judge seems to be quite correct.
The application is, therefore, dismissed and the rule is discharged.