[Cites 10, Cited by 0]
Gujarat High Court
Kantibhai Punambhai Parmar vs State Of Gujarat on 29 April, 2026
NEUTRAL CITATION
R/CR.RA/362/2011 JUDGMENT DATED: 29/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 362 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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KANTIBHAI PUNAMBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
BAILABLE WARRANT UNSERVED for the Applicant(s) No. 1
MR PUNAM G GADHVI(3724) for the Applicant(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 29/04/2026
JUDGMENT
1) By way of present revision application under Sections 397 and
401 of the Code of Criminal Procedure, 1973, the applicant has
sought following relief:-
"(b) To call for all the records and proceedings of Criminal
Appeal No.03/2010 from the Court of Learned Sessions
Judge at Nadiad and be pleased to quash and set aside
the conviction, sentence and compensation awarded vide
judgment and order dated 17/12/2009 in Criminal Case
no.8548 of 2004 passed by the Learned Add. Magistrate at
Nadiad and against that appeal No. 03 of 2010 has been
preferred by the applicant who was confirmed by the
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learned Add. Sessions Court in Criminal Appeal No.03 of
2010 on dated 04th August, 2011 and be pleased to acquit
the applicant."
2) Brief facts of the present case are that on 02.05.2004, the
applicant - accused was on duty at ST Workshop at that time
Vinubhai Babubhai had suspicion that the applicant - accused is
under alcohol inebriation and hence he informed the
Superintendent of Divisional Workshop i.e. Hitendrabhai who
checked the applicant who found to be under alcohol inebriation
that too during his duty. Therefore, the applicant was taken to
police station where Hitendrabhai lodged the FIR against the
applicant being Prohibition C.R.No.615 of 2004 for the offences
punishable under Sections 66(1)(b) and 85(1)(3) of the
Prohibition Act. After completion of investigation, charge-sheet
came to be filed against the accused under Sections 66(1)(b),
85(1)(3) of the Prohibition Act. Thereafter, Criminal Case
No.8548 of 2004, was registered, and trial was commenced. The
learned Magistrate has recorded the plea of the accused to which
the accused pleaded not guilty of the charge. Therefore, the
prosecution has examined seven prosecution witnesses and
tendered eight documentary evidence. Thereafter, further
statement of the accused under Section 313 of the Code of
Criminal Procedure was recorded, wherein, the accused denied
the entire case of prosecution. Thereafter, after hearing the
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arguments of the respective Advocates and appreciating the
evidence led by the prosecution, the learned 4 th Judicial
Magistrate First Class, Nadiad, vide judgment dated 17.12.2009,
came to the conclusion that the applicant is guilty for offence
punishable under Section 66(1)(b) of the Bombay Prohibition Act
and simultaneously, the applicant was acquitted from the
offence punishable under Section 85(1)(3) of the Bombay
Prohibition Act. The learned Magistrate was pleased to sentence
the accused to undergo simple imprisonment for one month and
directed to pay fine of Rs.100, in default, further to undergo
seven days of simple imprisonment. Feeling aggrieved by the
same the applicant has filed Criminal Appeal No.03 of 2010
before the learned 2nd Additional Sessions Judge, Nadiad, which
came to be dismissed vide judgment and order dated
04.08.2011, confirming the conviction of the applicant passed by
the learned trial Court. Hence, the applicant has filed the present
revision application.
3) The learned Advocate for the applicant has submitted that the
impugned judgments are contrary to the law and both the
Courts failed to appreciate the evidence. He has further
submitted that the Courts below ought to have considered the
fact that the complainant has not approached the Court with
clean hands and there was basic improbability and infirmities int
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eh prosecution evidence and there is violation of Rule 4 of the
Bombay Prohibition (Medical Examination and Blood Test Rules,
1959 (which shall hereinafter be referred to as "the Rules" for
short) as per which the Medical Officer is expected to follow the
same while collecting the blood sample as well as the Form - A
filed by the Doctor is defective. He has further submitted that
there is insufficient evidence to connect the applicant - accused
with the present offence since there is breach of mandatory
provision. Hence, he has requested to allow the present revision
application.
4) Learned APP for the State has opposed the present application
and submitted that both the Courts below have properly
appreciated the evidence produced on record and considering
the concurrent findings no interference of this Court is required.
Hence, he has requested to dismiss the present revision
application.
5) Having heard the learned Advocates for the respective parties
and perusing the record it appears that the main contention of
the learned Advocate for the applicant is that there is breach of
mandatory provisions of Rule 4 of the Rules and submitted that
the same are mandatory. In case of non compliance of
provisions of Rule 4 the accused is required to be given benefit
of doubt or exonerated from the charges levelled against him. If
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we perused the order and reasons assigned by both the Courts
and evidence led by the prosecution before the learned trial
Court the PW-7 Dr.Ramchandra Ganeshmal Soni, examined at
Exhibit 22, has deposed that he has examined the accused who
found under the influence of alcohol. He has collected blood
sample and took the thumb impression on Form-A. He has given
detailed evidence qua procedure followed by him while collecting
the blood sample and after collecting the blood sample the same
was kept in a bottle containing anticoagulants and preservative
powder. Perusing the said evidence it reveals that the bottle was
sealed and the seal is mentioned in the forwarding letter and the
same was sent to the FSL, therefore, it reveals that sufficient
compliance of provisions of Rule 4 of the Rules is followed. As
arguments of the learned Advocate for the applicant qua non
compliance of the Rule 4 is not acceptable and even this Court in
case of Avadh Bihari Amrutlal Vs. State of Gujarat, reported
in 2000 (3) GLR 2386, held that the provisions of Rule 4 of the
Rules are not mandatory but directory in nature.
6) Further, perusing the record other documentary evidence at
Exhibit 23 to 27 are sufficient for the compliance of the Rules.
The complaint at Exhibit 18 which is substantiated by the oral
evidence of PW-4 Hitendrabhai Harshadbhai Prajapati at Exhibit
18. In the FSL Report 0.05% of alcohol is found and hence the
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offence under Section 66(1)(b) of the Act is made out. Merely
the panch witnesses are turned hostile is not a ground to acquit
the accused. Even the accused failed to show pass or permit of
liquor and found under intoxication of alcohol from the public
place. The accused also failed to produce contrary evidence or
rebut the evidence lead by the prosecution. Further the learned
trial Court as well as learned Sessions Court have rightly came
to the conclusion that as the accused found in ST Workshop
within limited premises the accused is exonerated from the
offence under Section 85(1)(3) of the Act.
7) Furthermore, while exercising jurisdiction under Section 401 of
the Code is discretionary and it is required to be used only in
exceptional cases where glaring defect in the procedure and
manifest error of law or there has been miscarriage of justice.
Here no any such error is pointed out or no perversity is found
from the reasons assigned by both the Courts. Hence, the Courts
below have not committed any error in coming to the conclusion.
Even in revisional jurisdiction the Court has to be more careful in
reappreciating the fact or evidence as revisional jurisdiction itself
does not provide reappreciation of evidence and considering the
limited jurisdiction the Court cannot act as Appellate Court.
Hence, no case is made out for interference with the concurrent
findings of the Courts below in light of scope of the scope of
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revision laid down by the Hon'ble Apex Court in Amit Kapoor
Vs. Ramesh Chander, reported in 2012 (9) SCC 460.
8) At this stage, learned Advocate for the applicant has submitted
to extend the benefit of probation to the applicant. However, this
Court is of the opinion that as per Section 104(A) of the Gujarat
Prohibition Act, the Probation of Offenders Act shall not apply to
any person convicted of any offence under the Prohibition Act.
Hence, the benefit of probation cannot be extended to the
applicant and the request of learned Advocate for the applicant
is not acceded to.
9) In wake of aforesaid conspectus, present revision application
fails and stands dismissed. Rule is hereby discharged. The
applicant - accused to forthwith surrender before the learned
trial Court to serve the remaining sentence, if any.
10) If the applicant fails to surrender then the learned trial Court
shall issue a warrant against the applicant.
11) Record and proceedings, if any, be sent back to the concerned
Court forthwith.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
