Final Order 1

Order Details: Copy  of Judgment
Pdf Text: – 1 – C.C.NO.2119/PS/2018
Received on : 24/07/2018
Registered on : 19/09/2018
Decided on : 26/09/2023
Duration : 05 Y. 02 M. 02 D.
Exh. : 12
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44th COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY SUJITKUMAR C. TAYDE)
(JUDGMENT U/SEC. 355 OF CODE OF CRIMINAL PROCEDURE)
(CNR NO.::MHMM190093162018 )
(a) The serial No. of the case; : C.C.NO.2119/PS/2018
(b) The date of commission of
the offence;
: 26/05/2017
(c) The name of the
complainant
(if any);
: The State (Versova Police Station
in P.C. R. No. 22/2017).
(d) The name of the accused
persons and their
parentage and residence;
:
1] Shashank Ramesh
Ningurkar,
Age – 26 Yrs.
Occupation – Driver,
R/o. Kasarkar Chawl,
Joseph Patel Wadi,
Sat Bangala, Andheri (W),
Mumbai.
2] Mahesh Jassu Waghela,
Age – 27 Yrs.
Occupation – Service,
R/o. Kasarkar Chawl,
Joseph Patel Wadi,
Sat Bangala, Andheri (W),
Mumbai.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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– 2 – C.C.NO.2119/PS/2018
3] Rakesh Rajendra Mourya,
Age – 28 Yrs.
Occupation – Service,
R/o. Sainath Nagar,
Velena Rag, Near Pascal Wadi,
Madh, Malad, Mumbai.
(e) The offences complained of
or proved ;
: Under Section 85 (1) of Mumbai
Prohibition Act.
(f) The plea of the accused
and their examination (if
any);
: The accused pleaded not guilty
(g) The final order; : The accused No.1 to 3 are
acquitted.
(h) The date of such order; : 26/09/2023
Learned APP for the State Mrs. Seema Mokal,
Learned Advocate for accused No.1 to 3 Mr. D. D. Kerkar,
J U D G M E N T
(Delivered on 26/09/2023)
The accused No.1 to 3 are alleged to have behaved in a
disorderly manner under influence of drink in a public place and
therefore, they have been chargesheeted for the offence punishable
under section 85 (1) of Mumbai Prohibition Act.
The case of the prosecution in nutshell is as under :
2. On 26/05/2017, the informant, Mayur Prakash Kamble
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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– 3 – C.C.NO.2119/PS/2018
who was working as Police Constable in police station Versova, left the
police station for patrolling alongwith police officials. When the
informant and other police official were performing their duty i.e. night
patrolling, they saw the accused persons near Kamala Mehta Ground,
Sat Bangala, Andheri on 26/05/2017 at 23.00 hrs. The informant and
other police officials went near the accused persons who were found
consuming liquor on the spot of the incident. The accused were also
behaving in a disorderly manner under the influence of liquor in the
public place. The informant and other police officials found one liquor
bottle (Imperial Blue)and beer bottle (King Fisher) on the spot of the
incident.
3. According to the prosecution, the accused consumed liquor
and their behaviour was not proper in the public place. Hence, the
accused persons were brought to the police station and thereafter, they
were referred for medical examination.
4. Having received the relevant documents, the offence
punishable under section 85 (1) of the Mumbai Prohibition Act came to
be registered against the accused persons. Further investigation was
handed over to Shri Vijay Raskar, PoliceSubInspector who prepared
the spot panchanama and recorded the statements of the witnesses. He
collected the relevant medical certificates and documents. Having
completed the investigation, the chargesheet came to be filed under
Section 173 of Cr. P.C. against the accused persons for having
committed the offence punishable under Section 85 (1) of Mumbai
Prohibition Act.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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– 4 – C.C.NO.2119/PS/2018
5. Having secured the presence of the accused persons, all the
documents filed alongwith the chargesheet were supplied to the
accused under Section 207 of Cr. P.C.
6. The charge for the offence punishable under section 85 (1)
of Mumbai Prohibition Act was read over to the accused persons. They
did not plead guilty. Hence, the trial was conducted.
7. In the backdrop of the prosecution case and the evidence
placed on record, the following points are formulated for my
determination. I record my findings thereon in the light of the evidence
led by the prosecution as under:
SR.NO. POINTS FINDINGS
1] Does the prosecution prove that on
26/05/2017 at about 23.00 hrs., at Kamla
Mehta Ground, in front of Versova Welfare
School, Sat Bangala, Andheri (W), Mumbai,
the accused no.1 to 3 were found to have
consumed liquor and in a state of
intoxication in a public place and under its
influence they behaved in disorderly
manner and thereby committed an offence
punishable under section 85 (1) of Mumbai
Prohibition Act?
Disproved
2] What order ? The accused
No.1 to 3 are
acquitted as per
final order.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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REASONS
AS TO POINT NO. 1 :
8. In order to bring home the guilt of the accused, the
prosecution has examined following witnesses:
SR.
NO.
NAME OF WITNESS KIND OF
WITNESS
EXHIBIT
NO.
1] Mayur Prakash Kamble Informant
(P.W.No.1)
P4
2] Vijay Dinkar Bhandare Witness
(P.W.No.2)
P5
3] Vijay Gangadhar Raskar Investigating
Officer
(P.W.No.3)
P6
9. In addition to the oral document, the prosecution relied
upon the following documentary evidence.
1 F.I.R.
2 Blood Test Reports of the accused persons
3 Carbon Copies of Form No.A and Certificate regarding
the medical examination of the accused persons
10. In view of the incriminating evidence placed on record
against the accused persons, their statement were recorded under
Section 313 of Code of Criminal Procedure. The accused No.1 to 3
submitted that they have been falsely implicated in this case.
11. Having heard the learned advocates for both the sides, I
perused the record.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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– 6 – C.C.NO.2119/PS/2018
12. In order to prove the offence punishable under section 85
(1) of Mumbai Prohibition Act, the prosecution has to prove the
following ingredients:
1 The spot of incident is public place;
2 The accused were under the influence of drink
3 The accused behaved in a disorderly manner;
Keeping in mind these ingredients, I proceed to scan the
evidence.
13. At the outset, it is pertinent to note that the prosecution has
not examined any independent witness in this matter. The entire case
of the prosecution rests upon the testimony of police witnesses and the
medical certificates filed on record. Though there is no legal bar to rely
upon the testimony of the police officials, yet it is also settled that the
testimony of such police officials must be reliable and convincing.
Having regard to this settled position, I turn to make the scrutiny of the
evidence.
14. The informant, Mayur Kamble (Police Constable) deposed
that while performing night patrolling duty, he and the other police
officials found three persons consuming liquor. According to his
evidence, the said persons were behaving improperly and therefore,
they called two panchas. He further deposed that they found one
Imperial Blue bottle and King Fisher bottle on the spot. He testified that
the police officials seized the empty liquor bottles.
15. The another police witness, Vijay Bhandare (P.W.No.2) also
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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deposed that the three accused were found consuming liquor and Shri
Raskar, Police Inspector, prepared the panchanama in the presence of
the panchas.
16. The investigating officer, Vijay Raskar (P.W.No.3) deposed
that he found the accused on the spot of incident under the influence of
liquor. According to his evidence, he prepared the spot panchanama
and recorded FIR.
17. Having analyzed the oral evidence of the police officials, it
appears that the accused were under the influence of liquor at Kamal
Mehta Ground, Versova Welfare School, Andheri. But having gone
through the blood test reports of the accused persons filed on record, it
is crystal clear that no ethyl alcohol was present in the blood of the
accused. In fact, the investigating officer has admitted this fact during
the course of his crossexamination. Thus, the oral testimony of the
police witnesses is not supported by the documentary evidence.
18. Apart from this, the clinical examination reports and
medical certificates filed on record show that there is manipulation in
the said certificate. In other words, the said reports reveal that there
was no smelling of alcohol. However, the word “Smelling” is written
besides the said opinion. In fact, these certificates are the carbon copies
of the original documents. The prosecution did not file the original
document i.e. clinical examination certificates of the accused. Moreover,
the documents filed on record have not been proved in accordance with
law. So also the certificates filed on record are manipulated.
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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Therefore, these documents cannot be relied upon unless and until the
over writing and the added words are proved. In short, the tainted
documents cannot be considered as the base of the prosecution case.
19. It is pertinent to note here that the prosecution did not
examine the independent witness to prove the spot of incident.
Moreover, the investigating officer did not record the statement of
independent witness. Thus, there is no corroboration to the testimony
of the police witnesses. Therefore, it is not safe to rely upon the
testimony of these police witnesses who may be termed as the
interested witnesses. In other words, unless and until there is a due
corroboration to the evidence of the police witnesses, their testimony
cannot be taken as a gospel truth.
20. It is pertinent to note here that though the informant,
Mayur Kamble deposed that the accused did not behave properly on the
spot of the incident, yet the another police witnesses did not utter a
single word regarding the behaviour of the accused. Thus, it appears
that there are discrepancies in the evidence of the police witnesses.
Apart from this, none of the witnesses has deposed that the accused
persons behaved in a disorderly or indecent manner on the spot of the
incident. In this regard I am guided by the ratio laid down by the
Hon'ble Bombay High Court in the case of Arjun Kumbhar Vs The
State of Maharashtra reported in 1997 ALL MR (Cri) 1218 wherein
the Hon'ble Bombay High Court held that since there is no evidence to
show that under the influence of drink the petitioner was behaving in a
disorderly manner, his conviction for the offence under section 85 (1)
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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of the Bombay Prohibition Act cannot be sustained.
21. In fact, though the police witnesses have deposed that they
found the bottles of liquor on the spot of incident, yet the investigating
officer did not take a sample from the said bottle. So also none of the
police witnesses has deposed that the accused persons were smelling of
alcohol. Thus, there is no iota of evidence placed on record to show
that the bottles which were found on the spot of the incident contained
the liquor or drink. Thus, in the absence of this vital and material
evidence, it is hard to believe that the accused persons were consuming
the liquor on the spot of the incident.
22. The sum and substance of the discussion noted above is
that the clinical medical examination report filed on record appears to
be manipulated. So also the blood test reports of the accused persons
show that no ethyl alcohol was present in the blood of the accused at
the relevant time. In short, the documents relied upon by the
prosecution themselves negate the oral evidence of the witnesses.
Moreover, the prosecution did not prove the spot of incident. As such
the prosecution utterly failed to prove the indecent behaviour of the
accused. So also, the testimony of the police witness is not
corroborated by the another independent witness. Considering all these
facts, it can be inferred that the accused might have been arrested only
on the ground of suspicion or on other ground. Hence, it can be held
that the prosecution failed to prove the case behind reasonable doubt.
It is settled that the benefit of doubt always goes in favour of the
accused. Resultantly, I record my finding in negative for Point No.1
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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and proceed to pass the following order:
ORDER
1 The accused No.1 Shashank Ramesh Ningurkar, accused No.2
Mahesh Jassu Waghela and accused No.3 Rakesh Rajendra
Mourya are acquitted of the offence punishable under Sections
85(1) of Mumbai Prohibition Act vide Section 255 (1) of the
Code of Criminal Procedure.
2 The bail bonds furnished by the accused stand cancelled.
3 Seized muddemal property i.e. empty Imperial Blue bottle and
King Fisher bottle being worthless be destroyed after the appeal
period is over.
4 The accused No.1 to 3 are directed to execute P.R. Bond of
Rs.5,000/ (Rupees Five Thousand Only) each vide Section
437–A of the Code of Criminal Procedure to appear before the
higher Court as and when such Court issues notice in respect of
appeal are petition filed against this judgment.
5 The Judgment is transcribed directly on the computer.
6 The Judgment is pronounced in open Court.
(Sujitkumar C. Tayde)
Date : 26/09/2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
spj
Typed On: 26/09/2023
Signed On: 26/09/2023
(Sujitkumar C. Tayde),
M.M.44th Court, Andheri, Mumbai.
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