Bhagwati, J. - (1.) 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 not only for the offence of consumption 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. The question arising for determination is a short one, but in order to appreciate it, it is necessary to state the facts giving rise to the appeal.
(2.) The appellant, original accused No. 2, was at all material times working as District Health Officer in District Amreli in the State of Gujarat. He was, according to the prosecution fond of liquor and whenever he used to go out of Amreli in connection with his duties, he used to participate in drinking parties. 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. 1 in his agricultural farm situate at a place called Ghantwad about 50 Kms. away from Kodinar. Besides accused Nos. 1 and 2, six other persons who were arraigned as accused Nos. 3 to 8 were also present at the drinking party. 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. The raid was carried out at about 00.30 hrs. after midnight and on seeing the police, the appellant and the other accused tried to run away but they were apprehended. The raiding party also found five glasses and two empty bottles, all smelling of liquor, twelve empty soda water bottles, and one full bottle containing liquor and these articles were seized by the raiding party in the presence of the panch witnesses and a panchnama was prepared. 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 analysis of the blood revealed that, in the case of the appellant, the concentration 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. On these facts, the appellant and the other accused were charge-sheeted before the Judicial Magistrate, Kodinar. The charge against accused No. 1 was that he possessed as well as consumed liquor in contravention of the provisions of the Act and was, therefore, guilty of offences punishable under Section 66 (1) (b), while the charge against the other accused, including the appellant, was that they were guilty of consuming liquor in contravention of the provisions of the Act and were hence liable to be punished for the offence under Section 66 (1) (b) of the Act. The learned Judicial Magistrate accepted the evidence in regard to the concentration of alcohol in the blood of the accused, but taking the view that breaches of certain rules in the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 were committed in taking the blood of the accused, the learned Judicial Magistrate acquitted the accused including the appellant of the offence of consuming liquor under Sec. 66 (1) (b). The learned Judicial Magistrate also acquitted accused No. 1 of the offence of possessing liquor under Section 66 (1) (b) on the ground that it was not proved by the prosecution beyond reasonable doubt that he was in possession of liquor.
(3.) The State preferred two appeals against the order of acquittal passed by the learned Judicial Magistrate. Both the appeals were heard by a Single Judge of the High Court and they were disposed of by a common judgment. The High Court did not examine whether the order passed by the learned Judicial Magistrate acquitting the appellant and the other accused of the offence of consuming liquor was right or wrong nor did it consider whether the acquittal of accused No. 1 for the offence of possessing liquor was correct or incorrect. But taking the view that there was no distinction between the case of accused No. 1 on the one hand and that of the appellant and accused Nos. 3 to 8 on the other so far as the charge of possession of liquor is concerned, the High Court held that, on the material on record, the learned Judicial Magistrate should have framed a charge against the appellant and accused Nos. 3 to 8 not only for the offence of consuming liquor but also for the offence of possession of liquor as in the case of accused No. 1. The High Court observed: "Whenever "Drinking Parties" are detected by the police, it is the imperative duty of the prosecution to allege that all the participants of the same are charged with the "possession" of liquor in contravention of the provisions of law contained in S. 66 (1) (b) of the Bombay Prohibition Act, 1949. It may be emphasised that in such cases, "possession" of liquor does not only necessarily mean actual, physical or conscious possession of the owner or the occupant of the premises." In such cases of "Drinking Parties", it is always open to a participant to stretch his hand and to take the liquor in question for his own use and consumption. But, in all such cases of "Drinking Parties", the Court must be satisfied that the attendant circumstances should clearly indicate that the accused persons are the participants in a "Drinking Party". In the case before me, why should the accused persons, during the night hours, having gathered together go to a distant farm house Why should they be found with the aforesaid articles Why should they create a situation as a result of which a constable had to jump over a wall Why should they try to run away when they were apprehended by the responsible officers from Amreli In such circumstances, it is the duty of the prosecution to see that all the participants are charged with the commission of the offence viz. of possessing liquor in contravention of the provisions contained in Section 66 (1) (b) of the Bombay Prohibition Act. 1949." The High Court, on this view, set aside the order of acquittal in its entirety without examining its correctness and remanded the case to the learned Judicial Magistrate with a direction to try the appellant and the other accused not only on the charge of consuming liquor but also on the further charge of possession of liquor. Accused Nos. 1 and 3 to 8 did not challenge the correctness of this order made by the High Court, but the appellant impugned it by preferring the present appeal with special leave obtained from this Court.;