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Tukaram Onkar Patil Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 286 of 1980
Judge
Reported in1983(2)BomCR228
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 401; Bombay Prohibition Act, 1949 - Sections 85; Bombay Police Act, 1951 - Sections 112 and 117
AppellantTukaram Onkar Patil
RespondentState of Maharashtra
Appellant AdvocateRanjana Samant Desai, Adv.
Respondent AdvocateJ.A. Barday, P.P.
Excerpt:
criminal - improper conduct - section 401 of criminal procedure code, 1973, section 85 of bombay prohibition act, 1949 and sections 112 and 117 of bombay police act, 1949 - appeal against conviction under sections 85 and 112 read with section 117 - allegation of improper conduct under inebriated conditions - blood suitable for medical analysis - blood test confirmed intake of alcohol by accused - conviction sustained. - .....under section 85 of the bombay prohibition act and section 112 read with section 117 of the bombay police act and confirmed by the additional sessions judge. thane, by judgment dated december 18, 1979. the trial magistrate had imposed the sentence of rigorous imprisonment for six months and the fine of rs. 1000/-, in default rigorous imprisonment for three months for an offence under section 85 of the bombay prohibition act and the sentence of fine of rs. 100/- in default, rigorous imprisonment for 7 days for an offence under section 112 read with section 117 of the bombay police act. the additional sessions judge while confirming the sentence for the offence under the bombay police act, reduced the substantive sentence to the period already undergone for an offence under section.....
Judgment:

M.L. Pendse, J.

1. By this revisional application, the accused is challenging the legality of his conviction recorded by the trial Magistrate by judgment dated September 28, 1971 for an offence under section 85 of the Bombay Prohibition Act and section 112 read with section 117 of the Bombay Police Act and confirmed by the Additional Sessions Judge. Thane, by judgment dated December 18, 1979. The trial Magistrate had imposed the sentence of rigorous imprisonment for six months and the fine of Rs. 1000/-, in default rigorous imprisonment for three months for an offence under section 85 of the Bombay Prohibition Act and the sentence of fine of Rs. 100/- in default, rigorous imprisonment for 7 days for an offence under section 112 read with section 117 of the Bombay Police Act. The Additional Sessions Judge while confirming the sentence for the offence under the Bombay Police Act, reduced the substantive sentence to the period already undergone for an offence under section 85 of Bombay Prohibition Act and retained the fine.

2. The incident which gave rise to the prosecution occurred on April 3, 1975. The petitioner was attached to the Shahapur Police Station as Police Head Constable. Complainant Karpate was the Police Sub-Inspector in charge of Shahapur Police Station. On the day of the incident, the accused went to the residential quarters of the Police Sub-Inspector-Karpate and questioned him about his salary for the month of March. Karpate noticed that the accused was under the influence of liquor and directed him to go to the Police Station. After a short while Karpate himself went to the Police Station and the accused started hurling abuses at Karpate at the Police Station. As the behaviour of the accused was indecent and he was uttering filthy abuses. Head Constable Deshmukh and Constable Bhuke who were present at the Police Station caught hold of the accused and Police Sub-Inspector Karpate made a Station diary entry about the behaviour of the accused. The panchanama was then drawn up about the condition of the accused and the accused was sent to Dr. Deshpande who was in charge of the Medical Dispensary at Shahpur. Dr. Deshpande issued certificate about the condition of the accused and also collected the blood which was forwarded to the Chemical Analyser. On receipt of the report of the Chemical; Analyser, the accused was tried for the offence under section 85 of the Bombay Prohibition Act and section 112 read with section 117 of the Bombay Police Act.

3. The accused denied the commission of the offence and claimed that he was falsely involved. The prosecution examined Sub-Inspector Karpate, Head Constable Deshpande and Constable Bhuke in support of the prosecution case. In addition, Dr. Deshpande who had taken the blood sample was also examined. The trial Magistrate, on appreciation of evidence, found that the prosecution has proved its case beyond any doubt and entered the order of conviction. The conviction was upheld by the Additional Sessions Judge in an appeal carried by the accused to the Sessions Court and that order is under challenge.

4. Smt. Samant Desai, the learned Counsel appearing on behalf of the petitioner-accused submitted that the prosecution evidence that the accused had consumed liquor and hurled abuses at Police Sub-Inspector Karpate is not established by the evidence on record. It is not possible to accept this submission. The two courts below have concurrently found that the evidence, of P.W. 1 Karpate, Head Constable Deshmukh and Constable Bhuke is acceptable and that conclusion based on appreciation of evidence cannot be disturbed in this revision application. Smt. Samant Desai then submitted that Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 was not complied with and relied upon the decision of the Single Judge in Criminal Revision Application No. 177 of 1979 decided on July 10, 1979. Rule 4 requires that the Medical Practitioner shall use a syringe for the collection of the blood and the syringe shall be sterilised. It also requires that the Medical Practitioner should swab the skin surface from which the blood is to be withdrawn and not less then 5 c.c. of venous blood should be withdrawn. It further requires the Medical Practitioner to transfer the blood into a phial containing anti-coagulant and preservative. The submission of Smt. Samant Desai that Rule 4 is not complied with is totally misconceived. Dr. Deshpande (P.W. 5) has deposed in his evidence that at the time of taking the blood from the body of the accused he cleaned the portion with the swab and then took the sterilised syringe with a needle and 5 c.c. blood was withdrawn. Dr. Deshpande, further deposed that the blood was put in a sterilised bottle and thereafter the bottle was sealed. No questions were asked to Dr. Deshpande in cross-examination to suggest that what he had deposed about the compliance of Rule 4 is not correct. In my judgment, the challenge to order of conviction on the ground of Rule 4 is without any merit and deserves to be repelled.

5. Smt. Samant Desai then urged that the blood phial was taken from Dr. Deshpande by Police Sub-Inspector Karpate in the evening of April 3, 1975 and the bottle was left at the Police Station for more than 12 hours. The bottle was carried to the Office of the Chemical Analyser on the next day by the Police Constable. The submission is that as the bottle was kept at the Police Station and not in a refrigerator, the blood in the phial would not be proper and suitable for analysis. The submission has no merit because Dr. Deshpande in cross-examination specifically stated that even if the blood is not kept in the refrigerator for a period of 12 hours, no alcohol would be formed in the blood and the blood would not lose its efficacy for the purpose of analysis. In face of this evidence of the Doctor, it is impossible to accept the submission of the learned Counsel that the blood was not suitable for analysis. In my judgment, the order of conviction recorded by the two courts below is perfectly in order and requires no interference in this revision petition. It is required to be stated that the Additional Sessions Judge was too lenient in reducing the essential sentence imposed by the trial Magistrate and taking into consideration that the accused was Head Constable and had abused his superiors under influence of liquor, there was no occasion to reduce the substantive sentence.

6. Accordingly, the petition fails and the rule is discharged.


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