LexPATEL JETHABHAI CHATUR versus STATE OF GUJARAT
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A B c D E F G H 872 PATEL JETHABHAI CHATUR v. STATE OF GUJARAT October 20, 1976 [P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.] Appeal against acquittal of an offence of consuming liquor-Merely because the High Court took the view that a further charge of "possessi011eof liquor"· should have been framed, setting aside of the acquittal without finding whether the order of acquittal wa,, erroneous and ordering re-trial is bad-Bombay Pro- hibition Act, 1949 (Bom. XXV) sec. 66(1 )(b) r!w sec. 378 Criminal Procedure Code (Act fl of 74), 1973. • Charge-Fresh charge· on appreciation of evidence can be ordered to be framed by the High Court in exercise of its appellate jurisdiction-Criminal Procedure Code (Act fl of 1974), 1973-secs. 386(a), 464 (!)and 464(2)(a). Practice-Supreme Court will not entertain a complaint on facts and inter- fere with a finding of fact by Jhe appellate Court under Article 136 of the Con- stitution of India. Possession-"Possession" to attract criminal liability must be "conscious possession". Section 66(1).(b) of the Bombay Prohibition Act 1949 makes any person liable for punishment on conviction for the offence of "consuming, using, posses- sing or transporting any intoxicant or hemp." Section 66(2)(b) prescribes a statutory limit of 0.05 percentage of alcohol in the veinous blood taken from the accused. In summary case Nos. 798 and 799 of 1972 before the Judicial Magistrate 1st Class, Kodinar, Gujarat State, the appellant/accused No. 2 along with six others was charged with consumption of liquor while accused No. 1, the owner of an agricultural farm, where a drinking party took place was charged with the offence af possessing liquor. In spite of the fact that the per- centage of alcohol present in the veinous blood taken from the body of accused No. 2 was more than the statutory limit, in view of breaches of certain statutory rules, in Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, the appellant/accused No. 2 was acquitted along with accused 3 to 8 in whose cases the percentage was less than the statutory limit. Accused No. 1 was also acquitted for lack of evidence on the charge of possession of liquor. In the State appeal, taking the view that in a drinking party there should always be a further charge of possession of liquor, the High Court without examining the correctness of the findings of fact leading to the acquittals, set aside the orders of acquittal in respect of all and ordered retrial. On appeal by special leave, the Court, HELD : (i) Jn a State appeal against acquittal, the acquittal should not be set aside unless the High Court on a consideration of the evidence comes to the ,conclusion that the acquittal wa~ wrong. In the instant case, the High Court did not even consider whether the acquittal of the appellant was correct or not and without finding that the acquittal was erroneous proceeded to set aside the acquittal and direct retrial. It was not competent to the High Court to set aside the acquittal without finding that it was erroneous. Setting aside the acquittal order and ordering retrial merely because it took the view that a further charge should have been framed against the appellant and accused No. 3 to 8 was plainly and indubitably wrong. [876 B-D] (ii) If while hearing an appeal, the High Court, finds that, on the material before it, a further charge should be framed, the High Court can legitimately, in the exercise of its jurisdiction set right the error committed by the trial court in not framing a proper charge. [876 G_H] PATEL JETHABHAI CHATUR v. GUJARAT (Bhagwati, J.) 8 7 3 (iii) In the exercise of extra-ordinary jurisdiction under Article 136 of the Constitution, the Supreme Court would not ordinarily entertain a, complaint on facts. [877 Bl (iv) Possession is distinguishable from custody and it must be conscious possession. Whether the accused is in possession of liquor or not must depend on the facts andi circumstance of each case. [877 DJ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 385 of 1976. (From the Judgment and Order dated 22-12-1975 of the Gujarat High Court in Crl. Appeal No. 180/74) • N. N. Keswani & Ramesh N. Keswani for the appellant. K. •H. Kazi & M. N. Shroff for the Respondent. The Judgment of the Court was delivered by BHAGWATI, J.-This appeal, by special leave, is directed against an order passed by the High Court of Gujarat setting
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