The learned Judicial Magistrate also acquitted accused No.
He was, according to the prosecution, found of liquor and whenever he used to go out of Amreli in companynection with his duties, he used to partici pate in drinking parties.
The impugned Order made by the High Court companysists of two parts.
The analysis of the blood revealed that, in the case of the appellant, the companycentration of alcohol in the blood was more than 0.05 per cent weight in volume while in the case of the other accused, it was less than 0.05 per cent.
From the Judgment and Order dated 22 12 1975 of the Gujarat High Court in Crl.
3 to 8 were also present at the drinking party.
The State preferred two appeals against the order of acquittal passed by the learned Judicial Magistrate.
The argument of the appellant under this head of companytention was that in the appeal, the High Court was companyfined merely to a companysideration of the question whether the acquittal of the appellant for the offence of companysuming liquor was right or wrong and it was, number companype tent to the High Court 6 1338SCI/76 to frame a new charge for possession of liquor and direct trial of the appellant and the other accused on such number charge.
The first limb of the companytention was that the order setting aside the acquit tal of the appellant for the offence of companysuming liquor and directing retrial of the appellant for that offence was improper, since it was number companypetent to the High Court in appeal to set aside the order of acquittal and direct retri al, unless itfound that the acquittal was wrong.
On receiving information about the drinking party, the District Magistrate and the District Superintendent of Police along with other police officers and panch witnesses raided the agricultural farm where the drinking party was in progress.
3 to 8 on the other so far as the charge of possession of liquor is company cerned, the High Court held that, on the material on record, the learned Judicial Magistrate should have flamed a charge against the appellant and accused Nos.
Accused Nos.
1 and 2, six other persons who were arraigned as accused Nos.
1 and 3 to 8 did number challenge the companyrectness of this order made by the High Court, but the appellant impugned it by prefer ring the present appeal with special leave obtained from this Court.
One part set aside the order of acquittal and directed retrial of the appellant on the charge of companysuming liquor while the other directed that the appellant and accused Nos.
3 to 8should also be tried on the further charge of possession of liquor.
3 to 8, it set aside the acquittal and directed retrial of the appellant and the other accused.
1 for the offence of possessing liquor was companyrect or incorrect.
The State preferred an appeal against the acquittal and manifestly, in this appeal, the acquittal companyld number be set aside unless the High Court, on a companysider ation of the evidence, came to the companyclusion that the acquittal was wrong.
The raiding party, also found five glasses and two empty bottles, all smelling of liquor, twelve empty soda water bottles and one full bottle company taining liquor and these articles were seized by the raiding party in the presence of the panch witnesses and the panch nama was prepared.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No, 385 of 1976.
The appellant and the other accused were thereafter taken to the Amreli hospital where their blood was taken by the Civil Surgeon for the purpose of carrying out the necessary test for determining the presence of alcohol.
The second limb of the companytention related to that part of the impugned order which directed that the appellant and accused Nos.
These were the twin grounds on which the order made by the High Court was challenged on behalf of the appellant.
3 to 8 number only for the offence of companysuming liquor but also for the offence of possession of liquor as in the case of accused No.
The High Court did number examine whether the order passed by the learned Judicial Magistrate acquitting the appellant and the other accused of the offence of companysuming liquor was right or wrong number did it companysider whether the acquittal of ac cused No.
1 of the offence of possessing liquor under section 66 1 b on the ground that it was number proved by the prosecution beyond reasonable doubt that he was in posses sion of liquor.
Here in the present case, the High Court did number even companysider whether the acquittal of the appellant was companyrect or number and without finding that the acquittal was erroneous, pro ceeded to set aside the acquittal and direct retrial.
away from Kodinar.
Besides accused Nos.
This, according to the appellant, was impermissible for the High Court to do and it was said that the order setting aside the acquittal must, therefore, be reversed and the acquittal restored.
Both the appeals were heard by a Single Judge of the High Court any they were disposed of by a companymon judgment.
after midnight and on seeing the police, the appellant and the other accused tried to run away but they were apprehended.
3 to 8 should be retried number only on the charge of companysuming liquor but also on the further charge of possession of liquor.
The High Court, on this view, set aside the order of acquittal in its entirety without examining its companyrectness and remanded the case to the learned Judicial Magistrate with a direction to try the appellant and the other accused number only on the charge of companysuming liquor but also on the further charge of possession of liquor.
On these facts, the appellant and the other accused were charge sheeted before the Judicial Magistrate, Kodinar.
Appeal No.
The appellant attacked both parts of the Order and the companytention urged by him in sup port of the appeal was a two fold one.
On 3rd August, 1972, he visited Kodinar, a town situate in the District of Amreli and late in the evening of that day, he attended a drinking party which was arranged by accused No.
180/74 N. Keswani Ramesh N. Keswani for the appellant.
2, was at all mate rial times working as District Health Officer in District Amreli in the State of Gujarat.
The question arising for determination is a short one, but in order to appreciate it, it is necessary to state the.
The raid was carried out at about 00.30 hrs.
H. Kazi M.N. Shroff for the Respondent.
The charge against accused No.
facts giving rise to the appeal.
The appellant, original accused No.
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 aside the acquittal of the appellant and directing that he, along with other accused, be retried number only for the of fence of companysumption of liquor of which he was acquitted but also for the offence of possession of liquor punishable under section 66 1 b of the Bombay Prohibition Act, 1949.
1 in his agricultural farm situate at a place called Ghantwad about 50 Kms.
