(1) These two matters have been heard together, as they raise common question of law in regard to the admissibility in evidence of a certificate issued by a Chemical Examiner under S. 129A of the Bombay Prohibition Act, in cases in which there has been a breach of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, made by the State Government under Clause (w) in sub-section (2) of S. 143 of the Act. In Criminal Appeal No. 856 of 1962, the medical officer, to whom the accused had been sent for examination under sub-section (1) of S. 129A of the Act, collected 3. C. C. of his blood instead of 5 c.c. as required by Rs. 4 of the rules referred to above. In the other case Criminal Revision application No. 749 of 1962, the blood of the accussed collected by the medical officer on 13-4-1961 was not sent to the Chemical Examiner until 6th July 1961. Under Rule 4 it should have been sent so as to reach the Chemical Examiner within seven days from the date of its collection. In both these cases the question therefore arises whether the certificate issued by the Chemical Examiner could be used as evidence of the facts stated in the certificate under S. 129B of the Act.
(2) In order to answer this question it is necessary to refer to the relevant provisions of the Act. Sub-section (2) of S. 66 provides inter alia that where in any trial of an offence under Clause (b) of sub-section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent weight in volume then the burden of proving that the liquor consumed was a medical or toilet preparation, or an antiseptic preparation or solution, or a flavoring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary. Under this section, therefore, if it is proved that the concentration of alcohol in the blood of the accused person was not less than 0.05 per cent weight in volume, then a presumption is to be drawn that the liquor consumed by the accused was liquor, the consumption of which is prohibited under the Act and the burden is upon the accused to rebut that presumption. This section does not however say anything about the mode of proof or the manner in which the prosecution should prove that the concentration of alcohol in the blood of the accused person was not less than 0.05 per cent. It does not say that the only way the prosecution can prove this fact is by producing the certificate of the Chemical Examiner open to the prosecution to prove this fact in any manner they are able to do so. It has been urged before us that no presumption can be drawn under this sub-section when the certificate issued by the Chemical Examiner is for any reason inadmissible in evidence. This argument cannot be accepted because, as I have just stated, sub-section (2) of S. 66 does not prescribe the manner in which the prosecution should prove the extent of the concentration of alcohol in the blood of the accused person.
(3) Sub-section (1) of S. 129A empowers a Prohibition Officer duly empowered in this behalf or a Police Officer to produce the accused person before a registered medical practitioner authorized by the State Government in this behalf for the purpose of his being medically examined or for his blood being collected for being tested for determining the percentage of alcohol in the blood. Sub-section (2)is in the following terms:
'The registered medical practitioner before whom such person has been produced shall examine such person and collect and forward in the manner prescribed, the blood of such person, and furnish to the Officer by whom such person has been produced, a certificate in the prescribed form containing the result of his examination. The Chemical Examiner or Assistant Chemical Examiner to Government, or other Officer appointed under sub-section (1), shall certify the result of the test of the blood forwarded to him, stating therein, in the prescribed form, the percentage of alcohol, and such other particulars as may be necessary or relevant.'
This sub-section therefore lays down that the blood is to be collected and forwarded to the Chemical examiner in the manner prescribed. Sub-section (8) of this section states that nothing in this section shall preclude the fact that the person accused of an offence has consumed an intoxicant from being proved otherwise than in accordance with the provisions of this section. This sub-section therefore makes it clear that the fact that the accused person has consumed an intoxicant may be proved otherwise than by his being medically examined or otherwise than by his blood being collected and examined in the manner laid down in this section.
(4) Section 129B states that any document purporting to be a certificate under the hand of a registered medical practitioner of the Chemical Examiner or Assistant Chemical Examiner to Government, under S. 129A, may be used as evidence of the facts stated in such certificate, but the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused person, summon and examine any such person as to the subject matter of his certificate. This section enables the prosecution to produce the certificate of the Chemical Examiner issued under S. 129A of the Act and use it as evidence of the facts stated in such certificate without examining the medical officer who had collected the blood and even without examining the Chemical Examiner who had examined that blood.
(5) The manner in which blood of an accused person is to be collected and forwarded to the Chemical Examiner has been prescribed by R. 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. this rules is in the following terms:
'Manner of collection and forwarding of blood (1) The registered medical practitioner shall use a syringe for the collection of the blood of the person produced before him under R. 3. The syringe shall be sterilised by putting it in boiling water before it is used for the aforesaid purpose. He shall clean with sterilized water and swab and skin surface of that part of such person's body from which he intends to withdraw the blood. No alcohol shall be touched at any stage while withdrawing blood from the body of the person. He shall withdraw not less than 5 c.c. of venous blood in the syringe from the body of the person. The blood collected in the syringe shall then be transferred into a phial containing anti-coagulant and preservative and the phial shall then be shaken vigorously to dissolve the anti-coagulant and preservative in the blood. The phial shall be labelled and its cap sealed by means of sealing wax with the official seal or the monogram of the registered medical practitioner.
(2) The sample blood collected in the phial in the manner stated in sub-rule (1) shall be forwarded for test to the Testing Officer either by post or with a special messenger so as to reach him within seven days from the date of its collection. It shall be accompanied by a forwarding letter in From 'B' which shall bear a facsimile of the seal or monogram used for sealing the phial of the sample blood.'
The question which we have to consider is whether this rule is mandatory or whether its provisions are only directory. The distinction between a mandatory and a directory enactment is that a mandatory enactment must be obeyed or fulfilled exactly, but it is sufficient it a directory enactment be obeyed or fulfilled substantially, see, Punjab Co-op Bank Ltd., Amritsar v. Commissioner of Income-tax, Lahore, . As observed by Bose, J. in Pratap Singh v. Kirshna Gupta, : 2SCR1029 , some rules are vital and go to the roil of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues, and when the legislature does not itself state which is which Judges must determine the matter and exercising a nice discrimination sort out one class from the other along broad-based, commonsense lines. In the present case, sub-section (2) of S. 129A states that the medical practitioner 'shall' collect and forward blood in the prescribed manner. The use of the word 'shall' in this sub-section and in R. 4 undoubtedly lends support to the argument that the provisions of the rule should be strictly complied with. Section 66 (2) as well as sub-section (2) of S. 129A enable the prosecution to prove the extent of concentration of alcohol in the blood of an accused person otherwise than by the production only of the certificate of the Chemical Examiner under S. 129A. The primary object of R. 4 is to ensure that the blood is collected in such a way that the test in regard to the percentage of alcohol in it is not vitiated by anything done in the process of collection. The rule also provides for anti-coagulant and preservative being added so that the quantity of alcohol in the blood does not change on account of the delay in despatching it to the Chemical Examiner or on account of the delay in its being examined by the Chemical Examiner. It also lays down certain safeguards for the accused person, such as that the phial shall be labelled and its cap sealed and that it should reach the Testing Officer within seven days from the date of its collection. Having regard to the purpose for which the rule has been made, it seems to us that if the blood is collected and forwarded to the Chemical Examiner in a manner which makes it possible to ascertain with accuracy the percentage of alcohol in the blood at the time of its collection, substantial compliance with the provisions of R. 4 should be regarded as sufficient. In our opinion, the provisions of Rule 4 are directory and not mandatory. To hold otherwise may result in injustice in some cases. For instance, no prejudice is caused to the accused when instead of not less than 5 c.c. a smaller quantity, 4 1/2 c.c. of his blood are collected. An affidavit has been filed before us, in which the Assistant Chemical Analyser has stated that the Chemical Analyst will be able to give a correct analysis, if he is supplied with 2 c.c. of blood and that a large quantity has been prescribed by the rule by way of abundant caution. Consequently, it will not be reasonable to hold that even such a minor breach of the rule should render the certificate of the Chemical Examiner inadmissible in evidence. In each case, therefore, the substance of the matter should be looked at. Where the breach of the rule is such that it is not likely to affect the test or the result of the analysis, it may be disregarded. On the other hand, if the provision of the rule, which is not complied with, is one which may affect the result of the test or which makes it doubtful whether the certificate shows correctly the percentage of alcohol in the blood of the accused person at the time when it was collected, the certificate must be rejected and should not be used as evidence of the facts stated therein. Each case must therefore be considered on its own facts and in each case it must be seen whether the breach of the rule is such as has or may have affected the result of the test or has otherwise caused prejudice to the accused.
(6) We will now consider the facts of the two cases. In Criminal Revision Application No. 749 of 1962, the sample of the blood of the accused was sent to the Chemical Examiner over two and a half months after it had been collected. This was a serious contravention of sub-rule (2) of R. 4 and if the certificate of the Chemical Analyser was the only evidence about the percentage of alcohol in the blood of the accused, we would have found it difficult to rely upon it. In this case, however, the prosecution have examined both Dr. Nagarkar, who had collected the blood, and also the Assistant Chemical Analyser Mr. Chitale, who had tested the blood. The evidence of Dr. Nagarkar makes it clear that the phial, which was sent to the Chemical Analyser, was the phial in which he had collected the blood of the accused. Mr. Chitale has stated in his evidence that the phial, which he received, was the standard phial supplied by his Department. He has further stated that the standard phial is supplied along with a preservative Sodium Chloride and anti-coagulant Potassium Oxalate and that when these preservatives and anti-coagulants are added, the blood remains in the same condition all the time. According to this evidence, therefore, the delay in sending the blood of the accused to the Chemical Analyser has not increased the percentage of alcohol in the blood or affected the result of the analysis. Also in this case the prosecution do not rely upon the certificate alone in order to prove that the concentration of alcohol in the blood exceeded 0.05 per cent weight in volume. They rely upon the evidence of Mr. Chitale who himself had examined the blood. His evidence shows that the blood of the accused contained .057 per cent of alcohol. The conviction of the accused cannot therefore be set aside merely on the ground that the accused's blood was sent to the Chemical Analyser about two and a half months after it had been collected. As the concentration of alcohol in the blood of the accused exceeded .05 per cent, the burden was upon the accused to show that what he had consumed was not prohibited liquor. He has not discharged that burden. He was therefore rightly convicted.
(7) As regards the sentence, the accused is an old man more than 55 years of age. The percentage of alcohol in his blood was .057 per cent, suggesting that he had consumed only a small quantity of alcohol. The accused has also no previous conviction. In view of these facts we reduce the substantive sentence of imprisonment passed upon the accused to the period already undergone. The sentence of fine of Rs. 50 is confirmed.
(8) I may add that even though the delay in sending the accused's blood to the Chemical Analyser for examination has not resulted in the conviction being set aside. it was not right on the part of the medical officer to delay the despatch of the blood to the Chemical Analyser for such a long period. It is the duty of every Medical Officer to comply with the rules.
(9) In the other case, Criminal Appeal No. 856 of 1962, the accused was acquitted by the trial Magistrate principally on the ground that the Chemical Analyser had not mentioned in his certificate the factual data on which he had based his conclusions and had not given the reasons for his conclusions. The view taken by the trail Magistrate on this point is not correct, see State v. Ramsingh, : AIR1963Bom68 . The Chemical Analyser's certificate shows that the concentration of alcohol in the blood of the accused was .069 per cent. The burden was therefore upon the accused to show that what he had consumed was alcohol, the consumption of which is not prohibited by the Act. He has not discharged that burden. It has, however, been urged on his behalf that the Chemical Analyser's certificate should be disregarded, as the medical officer, who had collected the blood of the accused, had collected only 3 c.c. and not 5 c.c. as required by Rule 4. The collection of a smaller quantity of blood has, however, not caused any prejudice to the accused, nor has it affected the result of the analysis. Consequently, the Chemical Analyser's Certificate would not be inadmissible in evidence, merely because the quantity of blood collected was smaller than that prescribed. In our opinion, therefore, the acquittal of the accused was wrong. The offence in this case was committed as long ago as 11-1-1961. The appeal was also admitted mainly in order to determine whether the view taken by the trial Magistrate in regard to the value to be attached to the Chemical Analyser's certificate was correct. In view of these facts, we do not propose to disturb the order acquitting the accused. This appeal is dismissed.
(10) Appeal dismissed.