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Popatlal Motichand Shah Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1978CriLJ249; 1977MhLJ855
AppellantPopatlal Motichand Shah
RespondentThe State of Maharashtra
Excerpt:
- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - a person cannot be held guilty of the offence under sub-section (a) erf section 85 unless these two ingredients are clearly established by the prosecution. 9. in short, therefore, there is much substance in the contention advanced by shri palshikar that the prosecution has failed to establish the second ingredient of the offence namely that the applicant wag behaving in a disorderly manner......circumstances and the conduct which, according to him, would brand the behaviour of the accused person as disorderly behaviour. now in this case as i have said above, jagoba and vinayak rao only said that the accused was abusing. what abuses exactly the applicant uttered has not been deposed to by them. in the absence of the details of the abuses it would not be possible for the court to hold that the abuses uttered by the accused transgressed the limits or bounds of decency. shri garud, the learned counsel for the state, submitted that abuses are after all abuses and if a person indulges in abuses, naturally it must be held that he has transgressed the bounds of decency. it is not possible to uphold this submission of shri garud because one abuse differs from another and a particular.....
Judgment:
ORDER

Ginwala, J.

1. This revision application has been filed against the order convicting the applicant of the offence Under Section 85(1) of the Bombay Prohibition Act (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 100/- and in default of payment of fine to undergo rigorous imprisonment for 3 weeks.

2. The prosecution case against the applicant was that on 23rd October, 1974 at about 12-15 p.m. the applicant was in the Municipal Dispensary at Darwha. He was at that time under the influence of drink and was behaving in a disorderly manner by uttering some abuses. Sub-Inspector Ahirrao, who was in the Dispensary at that time, directed some policemen who1 were present there, to apprehend the applicant in view of his condition. Accordingly Constable Jagoba (P. W. 1) and Head Constable Vinayakrao (P. W. 2) apprehended the applicant. Since the Medical Officer, of the Darwha Dispensary was out of town, these two policemen took the applicant to the Medical Officer at Bori, who after examining the applicant, reported that his breath was smelling of alcohol, his gait was unsteady, his pupils were dilated and his speech was incoherent. The Medical Officer was of the view that the applicant had consumed alcohol and was under its influence. The Medical Officer had examined the applicant at 12-45 p.m. on the same day. On these allegations the applicant was put up for trial before the learned Judicial Magistrate, First Class at Darwha. The only evidence adduced by the prosecution consisted of the oral testimony of Jagoba and Vinayakrao. In addition to this, the prosecution also produced the report of the Medical Officer with regard to the examination of the applicant. The defence of the applicant was of denial. He contended that he had gone to the Dispensary as he was suffering from stomach-ache and before going to the Dispensary he had consumed the medicine known as Vinepar B-12. He contended that he had gone to the Dispensary because in spite of consuming the whole bottle of medicine, he did not get any relief. In the Dispensary there was a crowd in the Verandah and he asked the people to give him way and it was because of this that the Sub-Inspector arrested him. In short, he denied that he was behaving in a disorderly manner under the influence of drink. After appreciating the evidence on record and taking into account the defence set up by the applicant, the learned Judicial Magistrate held that the applicant had behaved in a disorderly manner under the influence of drink at the relevant time and hence he held that the applicant had committed an offence Under Section 85(1) of the Act. In the view he took, he convicted and sentenced the applicant as stated above. Being aggrieved by this order of conviction and sentence the applicant preferred an appeal to the Sessions Court at Yeotmal. The learned Sessions Judge upheld the finding of the learned trial Magistrate and confirmed the order of conviction and sentence passed by him. It is against this order that the applicant has come to this Court in revision.

3. Shri V.G. Palshikar, the learned counsel for the applicant, contended that both the Courts below had erred in finding that the applicant had behaved in a disorderly manner under the influence of drink. He submitted that the evidence on record with regard to the alleged disorderly behaviour of the applicant was not sufficient to establish that he was behaving in that manner. Mr. Palshikar pointed out that the only thing which was deposed to by the two policemen was that the applicant at the relevant time was abusing and these policemen had not given any details of the alleged behaviour of the applicant and particularly had not stated in clear terms as to what abuses the applicant was uttering at that time. In other words, the contention oi Shri Palshikar is that even assuming that the applicant was abusing, this by itself without any further details as regards the abuses or the behaviour of the applicant did not amount to establishing one of the two important ingredients of the offence under Sub-section (1) of Section 85 of the Act. In support of this contention he relies on unreported decision o this Court in Revision Application 114 of 1971 and Revision Application No. 134 of 1972 (Born)

4. Sub-section (1) of Section 8& of the Ac as it stood originally has been substituted by Act No. XXXIII 1972 with effect from 13th September, 1972. Before this amendment sub-a (1) consisted of three clauses. Clause (1) provided that a person drunk and incapable of taking care of himself in a public place was liable to be punished as provided therein, Clause (2) penalised a person who behaved in a disorderly manner under the influence of drink in a public place. Clause (3) provided punishment for a person who was found drunk in a public place but who was not holder of permit granted under the provisions of the Act. It would, therefore, appear that behaving in a disorderly manner under the influence of drink in a public place was made an offence by virtue of Clause (2) of Sub-section (1) of Section 85 as it stood before the amendment of 1972. By the amendment of 1972, the offences under Clause (1) and (3) of the original Sub-section (1) are done away with and Sub-section (1) as it stands now with effect from 13th September, 1972 penalises only those persons who are found' behaving in a disorderly manner under the influence of drink in any street r thoroughfare or public place or in any place to which the public have or are permitted to have access. Hence in order to bring home the guilt to a person for the offence under Sub-section (1) of Section 85 of the Act &s; it stands now, it is incumbent upon the prosecution firstly to establish that the accused was at the relevant time under the influence of drink anil secondly that he was behaving in a d4s>-orderly manner under that influence in any o the places mentioned therein. A person cannot be held guilty of the offence under Sub-section (a) erf Section 85 unless these two ingredients are clearly established by the prosecution.

5. In so fax as the present case is concerned there does not appear to be much difficulty in holding that the applicant was under the influence of drink at the time when he was accosted in the dispensary at Darwha. The evidence would show that the applicant was apprehended at that dispensary and was then taken to the Medical Officer at Bori. He was examined at 12-45 p. m. and the Medical Officer certified that the applicant had consumed alcohol and he was under its influence. Now if this was the condition of the applicant et 12-45 p. m. when the Medical Officer examined him, naturally the same could be said about his condition when he was in the dispensary at Darwha. The defence of the applicant that he had consumed a bottle full of Venepar B-12 and that had resulted in his condition, cannot be accepted in view of Sub-section (2) of Section 85 of the Act. ft says that in prosecution for an offence under Sub-section (1) of Section 85, 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 medical purpose. Since the applicant has not proved anything contrary, it cannot be held that he consumed an intoxicant for a medical purpose. The fact, therefore, remains that the applicant was under the influence of dunk when he was accosted at the dispensary at Darwha.

6. However, the question is whether he was behaving in a disorderly manner. la this respect the prosecution relies solely on the oral testimony of constable Jagoba (P. W. 1) and head-constable Vinayak (P. W. 2). The only thing which has been said by constable Jagoba was that the applicant was abusing under the influence of liquor. Jagoba has not given any further details either about the abuses which the applicant is alleged to have uttered or about his other behaviour. In his cross-examination he said that the applicant was abusing in general and not to any particular person. Same is the evidence of head-constable. Vinayknao. He also says that the applicant was abusing a ad behaving in a disorderly manner under the influence of liquor. He also has not given any details about the alleged abuses or the disorderly behaviour. The question is whether on this evidence it could be held that the applicant was behaving in a disorderly manner so as to attract the provisions of Sub-section (1) of Section 85 of the Act.

7. Section 5 of the Act or for the matter of that the provisions of the Act do not indicate as to what is meant by behaviour in a disorderly manner. It will depend upon what the word 'disorderly' connotes. Since it is not a term of art. the meaning attached to it in common parlance will have to be adopted for the purpose of construing it. Its dictionary, meaning is, 'out of order, in confusion, irregular, lawless, defying the restraints of decency.'1 In the context in which the. word has been used in this section it appears that it has been used in the sense of 'defying the restraints of decency.' Hence in order to hold whether a particular behaviour upon which the prosecution has founded the offence, defies the bounds of decency, it would be necessary to know exactly what that behaviour was. Whether a particular behaviour on the part of the accused person amounts to a disorderly behaviour or not is for the Court to determine. The Court cannot be guided by what a person says is disorderly.

It would be necessary for that person to state the circumstances and the conduct which, according to him, would brand the behaviour of the accused person as disorderly behaviour. Now in this case as I have said above, Jagoba and Vinayak rao only said that the accused was abusing. What abuses exactly the applicant uttered has not been deposed to by them. In the absence of the details of the abuses it would not be possible for the Court to hold that the abuses uttered by the accused transgressed the limits or bounds of decency. Shri Garud, the learned counsel for the State, submitted that abuses are after all abuses and if a person indulges in abuses, naturally it must be held that he has transgressed the bounds of decency. It is not possible to uphold this submission of Shri Garud because one abuse differs from another and a particular utterance may be considered to be an abuse by one person but may not be so considered by any other person. Hence merely by saying that a person indulged in uttering abuses it is not possible to hold merely on that account that that person indulged in disorderly behaviour. It would be necessary for the prosecution to enlighten the Court as to what sort of abuses were uttered by the reused person and then it would be for the Court to determine whether these abuses could be termed as verging on disorderly behaviour. this Court in the two decisions cited by Shri Palshikar has held that mere abusing would not be behaving in a disorderly manner as contemplated by Section 85(1) (ii) of the Act. In those oases also the details of the abuses were not coming forth in the evidence and a bald statement was made that the accused persons in those cases had indulged in abusing and it was on the basis of that that these observations came to be made. Of course, those cases construed Clause (2) of Sub-section (1) of Section 85 as it stood before the amendment but as I have pointed out above, even after the amendment, the conduct which was branded as an offence under clause (2) of Sub-section (1) continues to be an offence even under the amended Sub-section (1) of Section 85. The amendment would, therefore not make any difference in So far as the decision in these two cases is concerned.

8. No doubt, head-constable Vinayak rao has said besides saying that the applicant was abusing, that he was behaving in a disorderly manner. But this cannot by itself advance the prosecution case any further, because what amounts to disorderly behaviour was for the Court to judge and not for the head-constable. He only had to give the details of the manner in which the applicant was found behaving and it was for the Court on the basis of those details to find and determine whether such behaviour was disorderly.

9. In short, therefore, there is much substance in the contention advanced by Shri Palshikar that the prosecution has failed to establish the second ingredient of the offence namely that the applicant wag behaving in a disorderly manner. It appears that the Courts below have not considered this aspect of the case and they appear to be of the view that mere evidence of the policemen to the effect that the applicant was indulging in giving abuses would be sufficient to hold that he was behaving in a disorderly manner. From what I have stated -above, this cannot be said to be the correct position. I therefore, find that the prosecution has not been able to bring home the guilt to the applicant and he deserves to be acquitted.

10. The result, therefore, is that the application is allowed and the order of conviction and sentence passed by the Judicial Magistrate and affirmed by the Sessions Judge, is hereby set aside and the applicant is acquitted of the offence Under Section 85(1) of the Bombay Prohibition Act. The bail bond is cancelled.


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