1. This is a revision application filed by the petitioner original accused against the order passed by the learned Sessions Judge, Bhri, dated 3-3-1976 dismissing the appeal and ordering the appellant, that is, the petitioner to surrender to his bail, from the order of conviction in Criminal Case No. 11 of 1975 which was decided by the Judicial Magistrate, First Class, Ashti on 27th November, 1975 whereby the learned Magistrate convicted the accused for the offence Under Section 85(1) of the Bombay Prohibition Act and sentenced him to suffer R. I. for one month and to pay a fine of Rs. 200/- in default to pay the fine, to suffer one month's R. I. more.
2. Ordinarily this Court would not go into the evidence for the purpose of appreciating it in criminal revision application, especially when there are concurrent findings on questions of fact, by both the lower Courts. I would have followed this ordinary course, but Mr. Deshpande appearing for the petitioner submitted that this is not a case where it is a question of appreciation of evidence, but this is a case where there is no evidence whatsoever for the purpose of establishing the guilt Under Section 85(1) of the Prohibition Act, as modified upto 15th September 1972 and he submitted that even if the entire version given by the P. S. I., who is the only witness examined by the prosecution, besides the doctor, is accepted in toto and that evidence does not show that accused had behaved in a disorderly manner. At the most, it would show that the accused was under the influence of the drinks and could not take care of himself. He submitted that according to the accused no such incident had ever taken place but because of certain grudge which the P.S.I had against the accused, this case had been filed against him. He further submitted that as a matter of fact, though there were three other police constables present at the time of the incident, none of them has been examined. He submitted that according to the prosecution, the incident has taken place at the police station between a police constable and the P.S.I and it was witnessed by persons who were in the police station, viz., persons locked up, besides the police constables who were on duty. One of the persons who was in the lock up, viz. Habib Hussein had been examined as a defence witness by the accused and he has supported the defence that no such incident has ever taken place. He submitted that in the crossexamination of the P.S.I suggestions were made that the P.S.I main witness for the prosecution was bearing a grudge because there was an enquiry held against the P.S.I and in that enquiry the petitioner had been called as a witness. But these suggestions are not admitted and not proved by calling any documentary evidence or in any other manner.
3. If it were a mere appreciation of evidence between the prosecution evidence and the defence version as led by the defence witness Habib Hussein, I would not have interfered because both the lower Courts have decided as a finding of fact that the evidence led by the defence was not reliable, nor I would like to act on the suggestion of the Petitioner that this prosecution was filed falsely without any basis because of the grudge borne in mind by the P.S.I against the Petitioner. There is one more suggestion made to the P.S.I that belonging to the community to which he belonged, he had shown partiality in the conduct towards his inferior staff, but that also remains a suggestion, which has been denied by the P.S.I. These suggestions though made not having been accepted to the satisfaction of the lower Courts, and both the lower Courts as a finding of fact have come to the conclusion that the accused has not been able to shake the evidence, I do not think, sitting in revision, I would reappreciate the defence evidence and consider whether these suggestions require any consideration for the purpose of decision of this matter.
4. But, the first point raised by Mr. Deshpande is of grave significance and to my mind, it requires consideration by this Court. Even though sitting in criminal revision, if it is pointed out to this Court that there is not an iota of evidence which is required to establish the ingredients for which the accused is charged and convicted then I think, it would be necessary for this Court to go into the question and find out whether there is any substance in such arguments advanced at the bar.
5. Before I deal with the submissions made by Mr. Deshpande, in this behalf, it will be pertinent to note that the Bombay Prohibition Act, 1949 (Act No. XXV of 1949) has undergone various changes. Originally, when the Act was framed, Section 85(1) had several sub-sections and the old section read as follows :
85(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.
(1) is drunk and incapable of taking care of himself, or
(2) behaves in a disorderly manner under the influence of drink ; or
(3) is found drunk but who is not the holder of permit granted under the provisions of this Act or is not eligible to hold a permit Under Sections 40, 41 shall on conviction be punished.
Section 85(2) reads as follows :
(2) In prosecution for an offence under Sub-section (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.
Section 85 has now been amended by the amendment of 1972, where Sub-section (1) of Section 85 is substituted by the following provisions :
(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 : ....
This amendment clearly shows that the original Section 85(1), viz., 'is drunk and incapable of taking care of himself' has been omitted and the original Sub-section (3) seems to have been omitted, with which we are not concerned. Before I proceed to consider the ingredients required to be established for the proof of the offence Under Section 85(1), it will be clear from the very legislative intent by introducing this amendment that upto 1972 what was considered to be an offence, viz,, 'whoever is drunk and incapable of taking care of himself' is no more considered to be an offence. Therefore, one has to find out whether under the Act, as it stood, what were the ingredients of Section 85(1) (1) and Section 85(1) (2), viz., a person merely drunk and incapable of taking care of himself and a person behaving in a disorderly manner under the influence of drink. I do not think the legislature acts without assigning separate meanings to separate sections. Therefore, I assume that under the old Act, both the things, viz., a person found drunk and incapable of taking care of himself as well as a person who behaves in a disorderly manner under the influence of drink were liable to be punished. But, with the change in policy, the legislature has now not thought it fit to punish a person who is merely drunk and incapable of taking care of himself. Therefore, what was the element which was required for the purpose of proving guilty Under Section 85(1) (2), viz., behaving in a disorderly manner under the influence of drink, which would distinguish that offence from merely finding a person drunk and not capable of taking care of himself? The words 'behaving in a disorderly manner under the influence of drink' must be given a separate meaning and for that purpose, I asked Mr. Deshpande to make a little research and after the night's labour, he has been able to point out to me that the words 'behaves in a disorderly manner' has three different expressions, viz., (1) behave (2) disorderly and (3) manner. Therefore, we must look to the meaning of each one of them. The word 'behave' in the Concise Oxford Dictionary is defined as 'conduct one self, act conduct oneself with propriety .. show good manners.' The word 'disorderly' is defined in this very dictionary as : '1. Untidy, confused ; irregular, unruly, riotous ; 2. Constituting public nuisance'. The word 'manner' has been defined as 'way a thing is done or happens,' with several other meanings. The word 'disorderly' is defined by Random House Dictionary (413) as 'characterized by disorder ; irregular, untidy ; confused ; unruly ; turbulent, tumultuous 3. Law. violating or opposing constituted order contrary to public order or morality.
6. Ayer's Law Lexicon at p. 339 refers to the word 'disorderly' and describes it as 'unregulated by restraints of morality ; not complying with the restraints of law or social order ; confused or out of order ; lawless or contrary to good morals as disorderly behaviour.' He further submitted that in spite of his research, he could not find any other reported decision of this Court which is directly dealing with the expression in connection with the Bombay Prohibition Act. He pointed out that Under Section 110 of the Bombay Police Act, no person shall wilfully and indecently expose his person in any street or public place or within sight of and in such manner as to be seen from any street or public place, whether from within any house or building or not or use indecent language or behave indecently or riotously, or in a disorderly manner in a street or place of public resort or in any office, station or station house. He submitted that the exact expression 'behave indecently or riotously or in a disorderly manner. ...' appeared in this section also. In the Commentary by P. P. Bhanage on p. 179, under this Section 110, it is stated that it prevents use of indecent language or indecent behaviour or riotous behaviour or disorderly behaviour in a place of public resort or street or office or station or station house. Further relying upon (1916) 17 Cri LJ 273(1)(Lah) in this commentary, it is stated that the word 'riotous' occurring in the section, is sufficiently wide to cover the case of a person who creates a row in a thoroughfare. The word 'disorderly' would mean 'other than orderly' which is likely to cause a breach of the peace or a public nuisance. He submitted that there is one decision in which directly deals with the offence Under Section 85(1) and 85(3) as the old Act stood, That at least even in respect of Section 85(1) and (3) the word 'drunk' should be taken in its natural meaning as overcome by alcoholic liquor or intoxicating liquor. He submitted that the prosecution was Under Section 85(1) (3) and though the presumption is arising under the old Act, the Court merely on evidence finding the man smelling of alcohol without alcohol in the blood, had acquitted the accused in that case. He admitted that that case only throws light as far as original Section 85(1)(3) is concerned and it does not throw any light on Section 85(2) which now stood as Section 85(1) under the amended Act.
7. Mr. Deo appearing for the State submitted before me that in this criminal revisional jurisdiction. I should not interfere with the finding of facts of the two lower courts ; that to behave in a disorderly manner should be taken in its ordinary meaning as defined by various dictionaries and the Court should not confine itself to the meaning which is taken in law, as defined in Random House Dictionary or as defined in Law Lexicon but the Court should give and rely upon the ordinary meaning as given by those very dictionaries for those words. He submitted that he was supported by this Court by a decision of a Single Judge (Mr. Justice Abhyankar) which is reported in (1964) 66 Bom LR 42 State v. Vijaysingh where the accused was prosecuted both Under Section 66(1)(b) and Section 85 of the old Prohibition Act, meaning thereby that the prosecution was Under Section 85(1)(2) and (3) of the said Act. Now, as I observed before, the case before me is under the amended section. It is not under the old Act. As I have observed before, if the Legislature under the old statute had made a distinction between merely finding a man drunk and not capable of taking care of himself and behaving in a disorderly manner under the influence of drink, that distinction should always be borne in mind by the Court. In my opinion, in order to succeed for the prosecution, mere finding a man 'drunk or incapable of taking care of himself' would not be sufficient to hold that he was behaving in a disorderly manner under the influence of drink. In law, this offence assumes gravity and the gravity is due to the conduct of the accused, which may be either violent or such that it would disturb the peace of the locality or would create a public nuisance, but it must be something more than merely finding a man drunk and incapable of taking care of himself. He relied upon the observations on p. 47 of the said report by the learned Judge Abhyankar to the following effect :
Thus there is no doubt that the condition of the accused when he went into the office of the D. S. P., which is a public place, was that of a man overcome by intoxication and in whose case drink has resulted in drunkenness. It is, however, urged that the symptoms of disorderly behaviour or incapacity to take care of himself are not sufficient to hold that the accused could be guilty either under Sub-clause (1) or Sub-clause (2) of Section 85(1) of the Bombay Prohibition Act. If a person, having taken an intoxicant, drives a jeep car in a rash and negligent manner, dashes it against a wall before it comes to a halt, is unable to walk or talk properly or coherently, smells of liquor in his mouth, has unsteady gait, has to be supported for being taken into a room, and talks incoherently, it is difficult to see what other symptoms are necessary to be proved to hold that he was incapable of taking care of himself and was behaving in a disorderly fashion.
Mr. Deo relying upon these observations wanted me to hold that these observations clearly show that a man who is drunk and incapable of taking care of himself and in the facts and circumstances of the case having driven a car and dashed against the portion of the porch, the Court has taken the view that nothing more is required to establish under the Old Act, viz,, 'drunk and incapable of taking care of himself' and behaving in a disorderly manner under the influence of drink. In my opinion, the prosecution in the case cited before me was Under Section 85 of the Old Act as it then stood and would make no difference because even if an offence Under Section 85(1) is established, the man would be found guilty. Further, in this particular case, three eye-witnesses were examined and the conduct of the accused having gone out intoxicated himself by taking a drink and driving a jeep and dashing it against the porch and thereafter presenting himself before the D. S. P. and talking incoherently, was considered for having found guilty of both, of having drunk and incapable of taking care of himself and for having behaved in a disorderly manner under the influence of drink. What is required to be considered is after the amendment what was the original legislative intent of finding a man drunk and incapable of taking care of himself and finding a man behaving in a disorderly manner under the influence of drink has not been discussed by this case, and, therefore, though Mr. Deo may be justified in pointing out these observations, I do not think that they are of any assistance to me in order to arrive at a conclusion to which I have to arrive for the purpose of finding the guilt or innocence under the amended Section 85(1) where the only offence is 'behaving in a disorderly manner' and not being found drunk and incapable of taking care of himself.
8. Thus, having seen the position in law, Mr. Deshpande for the accused submitted that I should look at the evidence of the prosecution and even giving liberal interpretation of what has been stated by the P. S. I. the only witness for the prosecution, who has stated in his evidence as under. I am reproducing the exact words as recorded by the learned Magistrate though they make no sense whatsoever. I am constrained to observe that it has not been put happily worded but carelessly worded :
When I enquired with Jogdand about his consumption, I talked with me incoherent speech. At the time of my enquiry with accused, H. C. Nagarkar, H. C. Baig and P. C. Morale were present. When accused was talking with me, he told me what I can do and in saying thus, he pulled a chair and tried to sit, but in doing that he was not in a position to control himself. Accused after sitting on the chair said that he sitting there and let he be referred to M. O. and whatever you can do let you do.
9. This is all the important portion of evidence with regard to the behaviour of the accused in the Office of the PSI when some enquiry was being made about his consumption of liquor. It is now for me to decide whether both the trial Court or the appellate Court were justified in reading this incoherent evidence as has been recorded as would amount to behave in a disorderly manner under the influence of drink. As I find it, if I accept every word and whatever I can understand from what is recorded, there may be a case of a constable found in a drunken condition not taking care of himself, but it cannot be said that this is a case where he behaved in a disorderly manner because, in my opinion, when he enquired he said : 'If I am sent to M. O. you can do whatever you like.' This expression shows that he is required to be sent to the Medical Officer, which is a requirement for establishing whether he was in a drunken condition and being a subordinate officer telling his superior, 'You can do whatever you like' does it amount to behave in a disorderly manner? If taking the words at their worst, it means that he was not capable of taking care of himself and he was incoherent in speech. There was nothing to show that the accused was violent and his behaviour was such as would amount to public nuisance. This may be a good case for disciplinary action for insubordination or for not answering properly when questioned by a superior officer. But, as rightly pointed out by Mr. Deshpande, can these words be called evidence on which this Court can conclude that the accused had acted or behaved in a disorderly manner under the influence of liquor. He has emphasised two points. (1) that there was neither any violence nor his conduct created any breach of peace or a riot or a situation whereby the people were required to be collected. All that had happened was that he was unable to take care of himself and was not in a position to talk coherently. If both the elements of violence or riotous attitude or causing nuisance to the public are absent, according to Mr. Deshpande, the legislature had intended that this is an aggravated form when these elements are present. He submitted that the definition given in Random House Dictionary of the word 'disorderly' under Law and the definition given of the word 'disorderly', in Law Lexicon clearly indicates that every sort of disorderly behaviour should not be considered disorderly in law. An untidy act or an act which is not in order may be called disorderly. When you are considering a serious offence and when you have the amendment of the Act, whereby mere finding a man under the influence of drink and not taking care of himself would not amount to an offence, to hold the man guilty only when these faculties are established is rather not carrying out the legislative intent which requires the ingredients to be proved for the establishment of the offence. I see considerable force in the submission of Mr. Deshpande and in spite of what Mr. Deo has pointed out in : (1964)66BOMLR42 , I am unable to convince my mind that the prosecution has established the necessary ingredients required to establish the offence, viz., the accused having behaved in a disorderly manner under the influence of liquor.
10. It need not be understood that I approve of the conduct of the accused. It may be the most insubordinate action on his part or it may be a conduct which requires disciplinary enquiry and if found to be insubordinate or indiscipline, may result into his dismissal from the job, My finding is confined to the expression 'behave in a disorderly manner under the influence of drink as required Under Section 85(1) of the Amending Act of 1972. Therefore, I am confining my observation only to this part of the case and nothing more. In this finding, I see considerable force in the argument of Mr. Deshpande that there is absence of evidence whatsoever to establish the necessary ingredient as required Under Section 85(1) of the Act and that if there is no evidence which could convict a man, even if there is a finding of fact by both the lower Courts, I think this Court in its revisional jurisdiction should not uphold the conviction but must set aside the conviction and the confirmation of conviction by the lower Court.
11. Mr. Deo has further submitted that in any event, when the person is charged Under Section 85(1), if he is found to be drunk or intoxicated by liquor, he could be convicted Under Section 66(1)(b) of the Bombay Prohibition Act. But in my opinion, Section 66(1) (b) cannot come into operation as in the first instance, the accused is not charged under that section and he has not been called upon to defend himself under that charge. Further Section 66(2) provides that subject to the provisions of Sub-section (3) where in any trial of an offence under Clause (b) of Sub-section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent, (weight in volume) then the burden of proving that the liquor consumed was a medicinal or toilet preparation, or an antiseptic preparation or solution, or a flavouring extract essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary.
12. As on the prosecution evidence itself, the blood was not examined and on the finding of the percentage of alcohol, if the accused were charged Under Section 66(1) he would have been able to show that he falls under an exception. There being no charge and no evidence on record of finding of percentage of alcohol in the blood, I do not think that the prosecution can at this stage urge not to convict the accused Under Section 85(1) but convict him Under Section 66(1)(b). I do not think that there is any substance in the argument of Mr. Deo and I have to reject the same.
13. In the result, the petition succeeds. Rule made absolue. The conviction and the order of sentence passed by the Judicial Magistrate and confirmed by the learned Sessions Judge, Bhir, are set aside. The accused is set at liberty forthwith. His bail bond stands cancelled. Rule made absolute.