Himachal Pradesh High Court
Jagdev Singh vs State Of Himachal Pradesh on 5 November, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 132 of 2015
Judgment reserved on : 30.10.2015
Date of Decision : November 5 , 2015
Jagdev Singh ...Appellant
of
Versus
State of Himachal Pradesh ...Respondent
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1
Yes.
For the appellant : Mr. B. S. Chauhan, Sr. Advocate with Mr.
Vaibhav Tanwar, Advocate, for the appellant-
accused.
For the respondent : Mr. R. S. Verma, Addl. Advocate General with
Mr. R. M. Bisht, Dy. A.G. for the respondent-
State.
Mr. Ankush Dass Sood, Sr. Advocate and Mr.
Neeraj Gupta, Advocate, as Amicus Curiae.
Sanjay Karol, J.
In connection with F.I.R. No. 65 of 2009, dated 12.6.2009 (Ext. PW-13/A), registered at Police Station Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 2Jhakari, Distt. Shimla, accused was charged to face trial for having committed offences punishable under the provisions .
of Sections 279, 337, 338, 304-AA of the Indian Penal Code and 185 of the Motor Vehicles Act, 1988. In terms of the impugned judgment dated 8.4.2015/9.4.2015, passed by the learned Sessions Judge, Kinnaur Sessions Division at of Rampur Bushahr, H.P., in Sessions Trial No. 010003 of 2010, titled as State of Himachal Pradesh vs. Jagdev Singh, rt appellant-accused stands convicted of all the charged offences and sentenced to undergo rigorous imprisonment for a period of seven years and fine of `5000/- for offence punishable under the provisions of Section 304-AA IPC and in default thereof to further undergo simple imprisonment for a period of one year; simple imprisonment for a period of three months and fine of `500/- and in default thereof to further undergo simple imprisonment for one month, for each of the offences punishable under the provisions of Sections 279, 337 and 338 IPC; and fine of `500/- for offence punishable under the provisions of Section 185 of the Motor Vehicle Act and in default thereof to undergo simple imprisonment for 15 days. Present appeal stands ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 3 filed by the appellant-accused under the provisions of Section 374 of the Code of Criminal Procedure, 1973.
.
2. Appellant lays challenge to his conviction only under the provisions of Sections 304-AA of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and 185 of the Motor Vehicles Act, 1988 (hereinafter referred to as the of 'Act'), on the ground that prosecution has not been able to establish, beyond reasonable doubt, that at the time of rt occurrence of the accident, he was driving the vehicle in question under the influence of alcohol.
3. In view of limited challenge, one need not, in detail, discuss the prosecution evidence, save and except that through the testimonies of Pravesh Kumar (PW-1), Surinder Negi (PW-4), Vikas Prashar (PW-14) and Jyoti Prakash (PW-15) it stands established on record that on 12.6.2009 accused was driving Maxi Cab bearing registration number HP-02-1683, which on account of rash and negligent driving on the part of the accused, met with an accident. The vehicle was not found to be mechanically defective.
::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 44. Allegedly at the time of occurrence of the incident, accused was under the influence of alcohol and as .
such could not negotiate the curve, resulting into the vehicle rolling down into the gorge by about 200 - 250 mts.
5. As a result of the accident, passengers Surinder Negi, Vikas Prashar, Jyoti Prakash and Pravesh Kumar of sustained injuries and another passenger i.e. Vipin Chander died. Through the testimonies of the passengers and rt Dr. Vivek Anand (PW-6) who proved on record MLC's (Ext.
PW-6/B to Ext. PW-6/F) as also Dr. Mani Ram (PW-7) who proved on record the post mortem report (Ext. PW-7/C), such fact stands proved.
6. Having heard learned counsel for the parties as also perused the record, I am of the considered view that findings as also the impugned judgment, to the extent of its challenge, are not based on correct and complete appreciation of evidence and material placed on record, causing prejudice to the accused as also having resulted into miscarriage of justice.
::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 57. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793, the apex Court, .
has held that:
".......Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that of no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power rt unless it be found expressly stated in the Code". .... ....
(Emphasis supplied)
8. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused.
9. It is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences.
10. Section 185 of the Act deals with a case where a person is found driving or attempting to drive a motor ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 6 vehicle at the time when alcohol content exceeding 30 mg.
per 100 ml. is found in his blood detected in a test .
conducted by a breath analyzer or is under the influence of a drug to such an extent, so as to be incapable of exercising proper control over the vehicle. Person found committing such an offence can be imprisoned up to two of years, depending upon the given fact situation.
11. By virtue of the provisions of Section 202 of the rt Act, a police officer in uniform, may without warrants, arrest a person who commits such an offence. However, section itself mandates the person so arrested, to be subjected to medical examination by a registered medical practitioner.
Mandatorily this has to be within two hours of his arrest.
Examination has to be in conformity with the provisions of Sections 203 and 204 of the Act. In the absence thereof, such person is required to be released from the custody.
12. Section 203 of the Act empowers a police officer in uniform or an authorized officer of the Motor Vehicles Department to ask a person driving or attempting to drive a motor vehicle, in a public place, to provide specimen of his breath for breath test. This section envisages another fact ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 7 situation. In a case where the police officer in uniform, has a reasonable cause to suspect, that a motor vehicle involved .
in an accident, was being driven by a person under the influence of alcohol, he may require such person to provide specimen of his breath for a breath test if such person is an indoor patient, at the hospital, or at any other place, of including the specified police stations. Sub-Section (3) of this Section empowers a police officer to arrest a person if rt the test conducted indicates presence of alcohol in the person's blood. What is a breath test and the type of device required to be used, stands explained in the Explanation to this section.
13. Further Section 204 of the Act, empowers the police officer to get the specimen of the blood of the person arrested by him to be tested in a laboratory. It deals with a situation where a person may or may not be involved in an accident and/or he may or may not have been admitted in the hospital. What is a 'laboratory test' stands clarified in the explanation to this Section. It is analysis of specimen of blood made at a laboratory established, ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 8 maintained or recognized by the Central Government or a State Government.
.
14. Failure on the part of a person to either give specimen of his breath for breath test or blood for a laboratory test, leads to a presumption of a circumstance of unfitness to drive the vehicle, supporting any evidence led of by the prosecution. This is so provided under Section 205 of the Act. rt
15. The apex Court in State through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda, (2012) 8 SCC 450 had the occasion to construe the provisions of Section 185, 203 and 205 of the Act. The Court held that the language of the sections indicated that the test is required to be carried out only when a person is driving or is attempting to drive a vehicle and the object being instant determination of the presence of the alcohol in the blood of a person prosecuted for drunken driving. Finding the report of the laboratory to have been duly proven on record, the Court convicted the accused for the charged offence, holding that :
"86. Drunken driving has become a menace to our society. Everyday drunken driving results in accidents and several human lives are lost, ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 9 pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a .
way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in of more unfavourable conditions like fog, mist, rain etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of rt discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision."
16. Here with profit one would like to reproduce the notes of the Editor, so recorded in Sanjeev Nanda (supra), with regard to the effect which alcohol has on the body of a person driving a vehicle. They read as under:-
"Ed.: In order to understand the import of Section 185 of the Motor Vehicles Act, 1988, it is necessary to study the biological process which is set in motion when alcohol is consumed. Alcohol is a depressant. When alcohol goes into the stomach it mixes with blood and then through the circulatory system, it diffuses into the whole body. It primarily affects the central nervous system, particularly the brain (vide Richard Saferstein: Criminalistics, 10th Edn., p.214). Biologically, drunkenness is a temporary impairment ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 10 of the nervous system caused due to consumption of alcohol.
.
In order to determine how much a particular person is affected by alcohol consumption, the ideal situation is to examine his brain tissues but practically it is not feasible to interfere with such a sensitive organ of a living human being, simply to know the effect of alcohol. Scientists have therefore of found an alternative method of detecting the effect of alcohol in the body through blood examination. There is a close correlation between the rt concentration of alcohol in the blood and in the brain. If the concentration of alcohol in the blood is determined, this will in turn determine the level up to which it has affected nervous system.
Saferstein puts it like this: "From a medico-
legal point of view, blood-alcohol levels have become the accepted standard for relating alcohol intake to its effect on the body." (p. 215) However, blood analysis requires expert medical examination which should be carried out in clinical conditions in a properly equipped laboratory. This is therefore not a very handy method for traffic police who has to keep a watch over hundreds of drivers to know whether they are sober or drunken. The problem arises particularly when traffic on highways has to be watched at night. It is because of this difficulty, that portable devices called breath analysers or testers have been devised which can be used conveniently by the police. These devices estimate the presence of alcohol through alveolar breath but they by no ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 11 means completely dispense with the requirement of blood examination in certain cases. Quoting .
Saferstein again, results obtained through modern portable instruments like an alco-sensor or alcometer should be considered preliminary and non-evidential in nature. They establish only a probable cause for requiring an individual to submit to a more thorough breath or blood test (p. 222).
of Thus the position which emerges is that a portable breath analyser may be a useful device to conduct a preliminary test at the spot when a rt drunken driver is caught on the road but this is not the only test to determine the effect of alcohol.
There are other sophisticated techniques like gas chromatography through which the presence of alcohol in blood can be detected with a high degree of accuracy. It may therefore be possible to book a drunken driver under Section 185 of the MV Act, 1988 on the basis of a test conducted on a portable device provided his only fault is that he was found drunken on the road but did not otherwise cause any harm. Mention of a breath analyser in Section 185, it is suggested, must be understood in this perspective. However, if a drunken driver has caused a serious accident or some other harm so as to be liable for punishment under the Penal Code, 1860, Section 185, it is submitted, does not exclude detailed medical examination which may be conducted under Section 53 of the Criminal Procedure Code, 1973. Even otherwise, a breath analyser can be used when a drunken driver is caught at the spot. If he has fled ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 12 from scene and is caught later on, say after a few hours, the prudent approach seems to be to subject .
him to blood analysis and other medical tests. In such a situation, the task of prosecution becomes more onerous inasmuch as an additional fact has to be proved: that the offending driver had consumed liquor before the mishap took place. Authoritative works on Toxicology do not provide much material of about the estimation of time when alcohol might have been consumed but still some useful guidelines are available. According to Saferstein, "Depending rt on a combination of factors, maximum blood-alcohol concentration may not be reached until two or three hours have elapsed from the time of consumption. However, under normal social drinking conditions, it takes anywhere from 30 to 90 minutes from the time of the final drink until the absorption process is completed." (p.215) Once alcohol has been absorbed in the body, then the elimination process starts.
Elimination takes place through oxidation and excretion of alcohol. Again, according to Saferstein, "The elimination or burn off rate of alcohol varies in different individuals: 0.015 per cent w/v (weight per volume) per hour seems to be the average rate once the absorption process is complete. However, this figure is an average that varies by as much as 30% among individuals." (p.216) In Modi's Medical Jurisprudence and Toxicology (23rd Edn.), it is mentioned that alcohol in blood diminishes at the rate of 12-15 mg per hour (p. 312). Considering that Saferstein qualifies his opinion both as to the time it ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 13 takes for alcohol to be absorbed and with the possibility of a 30% variation as to the rate of .
elimination depending on the individual, it is submitted that the prosecution would have to produce some other evidence in addition to the medical evidence, relating to the time of consumption of alcohol."] [Emphasis supplied] of
17. A Division Bench of this Court in Cr. Appeal No. 76 of 2015, titled as Satnam Singh @ Chint Ram vs. State of rt Himachal Pradesh, Decided on 21st September, 2015, while dealing with the report of blood test of a convict observed as under:-
"24. ... ... A person with blood alcohol concentration of 150-300 mg% would be intoxicated, as per Lyon's Medical Jurisprudence and Toxicology, 11th Edition, page 626. Similarly in Medical Jurisprudence and Toxicology by Dr. K.S.Narayan Reddy, Edition 2004 (Reprint), at page 590, a person who has consumed 150-300 mg %, would be drunk. In Parikh's Text book of Medical Jurisprudence and Toxicology at page 855, it is stated that at a concentration of 0.15 per cent (150 mg %), some are under the influence of alcohol and others decidedly would be drunk. With increasing concentrations the symptoms become more intense. In the instant case, the quantity of ethyl alcohol in exhibit P/5 (blood) was 209.81 mg%. ... ..."::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 14
18. A Constitution Bench of the apex Court in Behram Khurushid Pesikaka vs. State of Bombay, AIR 1955 .
SC 123, while interpreting the provisions of the Bombay Prohibition Act, 1949 held that the onus to prove that the alcohol of which the accused was smelling, so as to fall within the prohibited category, was on the prosecution.
of Significantly the Court further held as under:-
"(52) Again, we are not able to subscribe to the view rt that in a criminal prosecution it is open to an accused person to waive his constitutional right and get convicted. A reference to Cooley's Constitutional Limitations, Vol. I. p. 371 makes the proposition clear. Therein the learned professor says that a party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement. In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory.
The learned Attorney-General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part ::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 15 III of our Constitution. We think that the rights described as fundamental rights are a necessary .
consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political: liberty of thought, expression, belief, faith and worship; equality of of status and of opportunity.
These fundamental rights have not been put in the Constitution merely for individual benefit, though rt ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.
Reference to some of the Articles, 'inter alia', Articles 15(1), 20, 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State "You can discriminate", or get convicted by waiving the protection given under Articles 20 and 21. "
[Emphasis supplied]
19. Section 304-AA IPC provides that whenever a driver of a public service or a private vehicle drives or attempts to drive, in a state of intoxication and causes death (not amounting to culpable homicide) or injury due to such rash and negligent driving, he shall be liable for punishment.
::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 1620. But what is 'intoxication' is not defined in the IPC.
.
21. Black's Law Dictionary defines 'intoxication' to mean as under:-
"Intoxication. Term comprehends situation where, by reason of taking intoxicants, an individual does not of have the normal use of his physical or mental faculties, thus rendering him incapable of acting in the manner in which an ordinarily prudent and rt cautious man, in full possession of his faculties, using reasonable care, would act under like conditions.
Hendy v. Geary, 105 R.I. 419, 252 A.2d 435, 441.
A disturbance of mental or physical capacities resulting from the introduction of substance into the body. Model Penal Code, §. 2.08.
The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law. An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.::: Downloaded on - 15/04/2017 19:18:44 :::HCHP 17
Under most state statutes dealing with driving while intoxicated, "intoxication" includes such by .
alcohol or by drug or by both. See Driving while intoxicated.
... ...
See also Habitual drunkenness or intoxication;
Intemperance.
Public intoxication. Public intoxication is being of on a highway or street or in a public place or public building while under the influence of intoxicating liquor, narcotics or other drug to the degree that one rt may endanger himself or other persons or property, or annoy persons in his vicinity.
Voluntary intoxication. The voluntary introduction of any substances into the body which the defendant knows or should know are likely to have intoxicating effects. The Model Penal Code (§ 2.08) uses the term "self-induced intoxication" to refer to this idea. Evidence of voluntary or self-induced intoxication can be admitted in some circumstances but not others."
[Emphasis supplied]
22. Oxford English Dictionary defines 'intoxication' as under:
"Intoxicate: v. [usu. As adj. intoxicated] 1 (of alcoholic drink or a drug) cause (someone) to lose control of their faculties. - excite or exhilarate. 2. archaic poison (someone).
- DERIVATIVES intoxicating adj. intoxicatingly adv.
intoxication n.::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 18
- ORIGIN ME: from med. L. intoxicare, from in- 'into' + toxicare 'to poison', from L. toxicum (see TOXIC)"
.
23. Interpreting the word 'intoxication' under the provisions of the Madras Prohibition Act where the word 'intoxication' was not defined, the Court in Connabatula Satya Rao vs. State, AIR 1954 Andhra 4 held that:-
of "(3) It looks to me that it is very doubtful whether the prosecution has brought home even the charge that rt the petitioner was smelling arrack. P. Ws. 5 and 6 are admittedly the enemies of the petitioner and even as regards P. Ws. 1 and 2 it is very doubtful whether they could be definite that the smell of arrack emanated from the petitioner. However, it is not necessary for me to get into this question as the revision petition can be disposed of on a shorter ground, viz., whether, assuming the prosecution case to be true, the petitioner can be said to have committed an offence under Section 4-A, Madras Prohibition Act, which enacts that "whoever is found in a state of intoxication in any public place and whoever, not having been permitted to consume any liquor or intoxicating drug in pursuance of this Act, is found in a state of intoxication in any private place, shall be punished with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both."::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 19
(4) The question for consideration is whether on the prosecution evidence, the petitioner can be brought .
within the terms of Section 4-A of the Act. As already pointed out, the only evidence for the prosecution is that the accused was smelling alcohol. In my opinion this does not amount to his being found in a state of intoxication within the meaning of Section 4-A. A person can consume alcohol without being of intoxicated. The expression "intoxication" is synonymous with drunkenness. In the Concise Oxford Dictionary, the meaning of the word "intoxication" is rt given as "make drunk, excite, exhilerate, beyond self-control". In the 14th volume of the Encyclopedia of Britanica (11th edition) the meaning of the word "intoxication" is given as "poisoning or the action of poisoning, whether of drug, baectorial products or other toxic sub- stances and hence the condition resulting from such poisoning, particularly the disorder of the nervous system produced by excessive drinking of alcohol."
It is thus seen that the intoxication implies excessive drinking bringing about drunkenness. (5) To constitute an offence of being found in a state of intoxication it is not sufficient to show that a person smelt liquor. Something more is necessary and that is that he was in a state of drunkenness, as a result of excessive drinking. For this reason, I must hold that an offence under Section 4-A of the Prohibition Act has not been committed by the ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 20 petitioner and he is therefore entitled to an acquittal."
.
[Emphasis supplied]
24. The expression 'liquor' used in various statutes also came up for consideration before the Constitution Bench of the apex Court in The State of Bombay & another of vs. F. N. Balsara, AIR (38) 1951 SC 318 wherein it is held as under:-
rt "(13) Having dealt with and negatived the first two contentions upon which the validity of the entire Act was assailed, I now proceed to deal with certain sections of the Act, the validity of which also was brought into question. The provision which was most vigorously assailed and in regard to which the attack was successful in the High Court, is the definition of the word 'liquor' in S. 2 (24) of the Act. The definition runs thus :
"Liquor" includes :
(a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; and
(b) any other intoxicating substance which the Provincial Govt. may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act.
The High Court has held that the word "liquor" ordinarily means "a strong drink as opposed to soft drink", but it must in any event be a beverage which ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 21 is ordinarily drunk. Proceeding upon this view, the High Court has held that although the legislature .
may while legislating under entry 31 prevent the consumption of non-intoxicating beverages and also prevent the use as drinks of alcoholic liquids which are not normally consumed as drinks, it cannot prevent the legitimate use of alcoholic preparations which are not beverages nor the use of medicinal of and toilet preparations containing alcohol. This view of the High Court was very strongly supported on the one hand and equally strongly challenged on the rt other before us, and I therefore proceed to deal with the question at some length.
(14) In the 'Oxford English Dictionary', edited by James Murray, several meanings are given to the word "liquor", of which the following may be quoted:
LIQUOR:
1. A liquid; matter in a liquid state; in wider sense a fluid.
2. A liquid or a prepared solution used as a wash or bath, and in many processes in the industrial arts.
3. Liquid for drinking; beverage, drink. Now almost exclusively a drink produced by fermentation or distillation. Malt liquor, liquor brewed from malt; ale, beer, porter etc.
4. The water in which meat has been boiled; broth, sauce; the fat in which bacon, fish or the like has been fried; the liquid contained in oysters.
5. The liquid produced by infusion (in testing the quality of a tea). In liquor, in the state on an infusion.::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 22
Thus, according to the Dictionary, the word 'liquor' may have a general meaning in the sense of a liquid, .
or it may have a special meaning, which is the third meaning assigned to it in the extract quoted above, viz., a drink or beverage produced by fermentation or distillation. The latter is undoubtedly the popular and most widely accepted meaning, and the basic idea of beverage seems rather prominently to run through of the main provisions of the various Acts of this country as well as of America and England relating to intoxicating liquor, to which our attention was drawn. rt But, at the same time, on a reference to these very Acts, is difficult to hold that they deal exclusively with beverage and are not applicable to certain articles which are strictly speaking not beverages. A few instances will make the point clear. In the National Prohibition Act, 1919 of America (also known as the Volstead Act), the words, liquor and intoxicating liquor, are used as having the same meaning and the definition states that these words shall be construed to :
"include alcohol, brandy, whisky, rum, gin, beer, ale, porter and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes."
Having defined 'liquor' and 'intoxicating liquor' rather widely, the Volstead Act excepted denatured alcohol, ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 23 medicinal preparations, toilet and antiseptic preparations, flavouring extracts and sirups, vinegar .
and preserved sweet cider (S. 4), which suggest that they were included in the definition. In some of these items, we have the qualifying words "unfit for use for beverage purposes", but the heading of S. 4, Volstead Act, under which these exceptions are enumerated, is "exempted liquors.""
of ... ...
"(16) Coming now to the various definitions given in the Indian Acts, I may refer in the first instance to the rt Bombay Abkari Act of 1878 as amended by sub-
sequent Acts, where the definition is substantially the same as in the Act with which we are concerned. In the Bengal Excise Act, 1909 "liquor" is said to mean :
"liquid consisting of or containing alcohol, and includes spirits of wine, spirit, wine, tari pachwal. beer, and any substance which the Provincial Govt. may.... declare to be liquor for the purposes of the Act."
In several other Provincial Acts, e.g., the Punjab. Excise Act, 1914, the U. P. Excise Act, 1910, "liquor"
is used as meaning intoxicating liquor and as including alcohol. The definition of "liquor" in the Madras Abkari Act, 1886 is the same as in the Bombay Act of 1878. Even if we exclude the American and English Acts from our consideration, we find that all the Provincial Acts of this country have consistently included liquids containing alcohol in the definition of 'liquor' and 'intoxicating liquor'. The framers of the Govt. of India Act 1935 could not ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 24 have been entirely ignorant of the accepted sense in which the word 'liquor' has been used in the various .
Excise Acts of this country, and, accordingly I consider the appropriate conclusion to be that the word "liquor" covers not only those alcoholic liquids which are generally used for beverage purposes and produce intoxication, but also all liquids containing alcohol. It may be that the latter meaning is not the of meaning which is attributed to the word "liquor" in common parlance especially when that word is prefixed by the qualifying word 'intoxicating', but in rt my opinion having regard to the numerous statutory definitions of that word, such a meaning could not have been intended to be excluded from the scope of the term "intoxicating liquor" as used in entry 31 of List II."
25. It is thus seen that 'intoxication' is not synonymous with alcohol or drunkenness. It can be with the use of drugs etc.
26. For determining facts, limited to the ground of challenge, Court proceeds to examine the ocular evidence being the testimonies of the relevant prosecution witnesses.
Undisputedly no evidence in defence stands led by the accused.
27. Pravesh Kumar (PW-1) who was travelling in the ill fated vehicle states that at the time of the accident, ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 25 accused "might have consumed liquor". He clarifies that in the hospital he did not inform the police about such fact.
.
Absence thereof, is sought to be justified on the plea of perplexity. But then his statement was recorded twice and he is not categorically certain whether the accused was under the influence of liquor or not. Surinder Negi (PW-4) of who was also travelling in the said vehicle states that the accused "appeared to be under the influence of liquor". He rt is not certain of such fact. Vikas Prashar (PW-14) and Jyoti Prakash (PW-15), the other occupants of the vehicle, do state that at the time of occurrence of the incident accused was under the influence of liquor. But to what effect is not clear with certainty. Well this is the ocular version of the witnesses.
28. It be only observed that having found the accused to have driven the vehicle in a rash and negligent manner, under the influence of liquor, none of them asked him to stop the vehicle or lodged any protest, for after all they had travelled with him over a considerable distance and period of time. Their testimonies do not conclusively ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 26 establish the factum of the accused being in a state of intoxication, beyond reasonable doubt.
.
29. Be that as it may, factum of intoxication has to be proved by the prosecution by leading scientific evidence.
30. Now Dr. Vivek Anand (PW-6) states that on 12.6.2009 at about 10.45 p.m., he examined accused of Jagdev Singh, who was smelling of alcohol from his mouth.
The accusedrt was afebrile, semi-conscious and not responding to verbal commands. His blood sample was drawn and handed over to the police in a sealed pack.
Evidently, accused also sustained serious injuries in the accident. With regard to his oral observation of the accused smelling of alcohol from mouth, witness admits that such smell subsists even after a person comes out of state of intoxication. He admits it to be correct that certain substances like acetone, ether, tar and aldehyde present in the blood are likely to be determined as alcohol. He further admits it to be correct that due to trauma caused by the accident, injured could have become semi conscious. On the basis of report (Ext. PW-13/F) of the chemical examiner, Doctor opined that the quantity of alcohol found in the ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 27 blood was 279.72 mg%. It is this report which is subject matter of scrutiny.
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31. Dr. Vivek Anand further states that he handed over the blood sample of the accused to the police. But to whom? and which one of them present in the hospital, he does not state.
of
32. ASI Om Prakash (PW-13) does not state that he either received the sample or handled the same. HC Nup rt Ram (PW-16) who conducted the investigation is also silent on this aspect.
33. Constable Bharat Bhushan (PW-8) states that on 16.6.2009, HC Nup Ram handed one sealed parcel, sealed with seal bearing impression-H alongwith Road Certificate No. 71/09 which he deposited at the State Forensic Science Laboratory, Junga on 17.6.2009. But such version is not corroborated by HC Nup Ram.
34. Constable Roshan Lal (PW-5) states that on 13.6.2009 he received the blood sample of accused Jagdev from the Medical Officer, SJVNL. Jhakhari. He wants the Court to believe that the blood sample was deposited in the Police Station, Jhakhari.
::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 2835. Now, undisputedly the MHC has not been examined in Court nor has the Malkhana Register produced .
or proven on record to establish the factum of its deposit in safe custody. ASI Om Parkash and HC Nup Ram are conspicuously silent on this aspect. When did Constable Roshan Lal hand over the sample and to whom he does not of state. Also who received the sample in the police station, prosecution is absolutely silent on this aspect.
rt
36. Thus there is no link evidence establishing the factum of receipt of the sample from the doctor till such time it was handed over to the police official who got it deposited in the laboratory. Whether it was kept in safe custody and not tampered with, remains unproven on record.
37. The SHO/Investigating Officer have not deposed that the sample was deposited in the police station. Where was the sample kept between the 13th and 17th June, 2009 remains unexplained on record. Also seal-H with which the alleged sample was sealed has not been produced in Court.
Crucially and significantly even the Road Certificate has not been produced on record which would have only thrown ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 29 light as to with whom and where the sample was kept at the police station.
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38. No doubt MLC (Ext.PW-6/G) records the sample to be that of Jagdev (accused), but then Doctor does not specifically state that the sample was sealed. All that he states is that the sample was handed over to the police in a of sealed bag. But then who sealed the same and with which seal, he does not state and Constable Roshan Lal (PW-5) is rt also silent about the same. In fact he is silent about the seal impression. As already observed, ASI Om Prakash and HC Nup Ram are silent with regard to the sample, much less sealing thereof. It is in this backdrop, it was necessary for the prosecution to have produced the original seal or impression thereof, with which the sample was sealed, for it cannot be said with certainty that the sample was not tampered with.
39. Thus, findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 30 piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation .
thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for some of the charged offences.
40. The court in the given facts and circumstances of does not deem it proper, at this stage, to order retrial as no content of alcohol would be found in the blood of the rt accused. While taking such view, reliance is sought on the decision rendered by the apex Court in Ukha Kolhe vs. The State of Maharashtra, AIR 1963 SC 1531.
41. Hence, for all the aforesaid reasons, appeal is partly allowed and the judgment of conviction and sentence dated 8.4.2015/9.4.2015, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in Sessions Trial No. 010003 of 2010, titled as State of Himachal Pradesh vs. Jagdev Singh, qua the offences charged under Section 304-AA IPC and 185 of the Act are set aside. The accused stands acquitted in relation to such offences. With respect to the same, he be released from jail, if not required in relation to any other offences or case, and amount of fine, if deposited by the accused, be refunded to ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP 31 him. It is clarified that in relation to the offences for which he stands convicted, he has to undergo and serve the sentence.
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Release warrants be prepared accordingly.
42. Valuable assistance rendered by Mr. Ankush Dass Sood, learned Senior Advocate and Mr. Neeraj Gupta, learned Advocate appointed as amicus curiae by the Court of are highly appreciable.
Appeal stands disposed of, so also pending rt application(s), if any.
(Sanjay Karol), Judge.
November 5 , 2015 (PK) ::: Downloaded on - 15/04/2017 19:18:45 :::HCHP