Judgment

SHELAT, J. :- On December 18, 1967 at about 6.45 p.m. P.W. 3 Dukhuprasad Tiwari, a taxi driver, brought in his taxi the appellant, then a police Head Constable, to the Vithalbhai Patel Road Police Station, Bombay, together with another person. The appellant was at that time in the police uniform. He was lying unconscious in the taxi, his breath smelt of alcohol and he was unable to take care of himself. His companion too was in a similar condition. Police Inspector More thereupon sent the appellant to the J. J. Hospital where the appellant was examined by Dr. Kandurkar. The medical certificate issued by the doctor showed that the appellant was still under the influence of alcohol, that his pupils were dilated and though his speech was coherent, he was still under the effects of alcohol. The chemical analyser s report of his blood, taken as a sample, showed that it contained alcohol to the extent of 0.230 m.g. On these facts, the appellant was put up for trial before the Presidency Magistrate, 4th Court under Sections 66 (1) (b) and 85 of the Bombay Prohibition Act, 25 of 1949.

2. Sec. 66 (1) (b) of the Act provides that whoever, in contravention of the provisions of the Act or any rule or regulation or order made or of any licence, permit, pass or authorization issued thereunder, consumes, uses, possesses or transport any intoxicant shall on conviction be punished with imprisonment for a term extending to six months and with fine extending to Rs. 1000/-. Section 85 (1) (3) provides that whoever in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access is drunk and incapable of taking care of himself shall on conviction be punished with imprisonment and fine as provided therein.

3. The appellant s defence was that he was not under the influence of any prohibited alcohol, that he had taken Javerian Jivan mixture as he had stomach pain and had become unconscious as a result of an overdose of that mixture. The Trial Magistrate accepted that defence and ordered his acquittal. In the appeal filed by the State in the High Court, the High Court reversed the order of acquittal and convicted the appellant under both the counts and sentenced him under the first count to three month s imprisonment and a fine of Rs. 500/- and to seven days imprisonment and a fine of Rs. 35 under the second count, but directed the substantive sentences to run concurrently. This appeal by special leave is against the judgment and order of sentence passed by the High Court.

4. There is no doubt that the evidence of the taxi driver, wit. Tiwari, was the most material piece of evidence. In his examination-in-chief he stated that the appellant and one other person with him engaged his taxi at about 6 p.m. and directed him to drive them to Kandewadi. On the way both of them got down from the taxi and went in a shop. They returned from the shop to the taxi and directed him to drive them to the Central Cinema. As both of them became unconscious in the taxi, he drove the taxi to the V. P. Police Station and handed them over to the police there. The appellant at that time, according to him, was not in a position to take care of himself. In his cross-examination, however, the witness added that while the appellant was in the taxi, he heard him complaining to his companion of pain in his stomach and saw him drinking something. What it was, he, of course, could not say. He then found the appellant unconscious. The suggestion obviously was that it was what the appellant drank in the taxi itself which rendered him unconscious. As a follow-up of this suggestion made for the first time in the cross-examination of the taxi driver, the appellant in his S. 342 statement said that he had taken Javerian Jivan mixture on account of his having stomach pain. But contrary to the evidence of the taxi-driver, he said that he had taken the mixture at Kandewadi and not in the taxi and that he became unconscious because h