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The State Vs. Balwant Ganpati Mulye - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Criminal Reference No. 85 and 101 of 1960 and Criminal Application No. 1034 of 1960
Judge
Reported in(1961)63BOMLR87
AppellantThe State
RespondentBalwant Ganpati Mulye
DispositionAppeal Allowed
Excerpt:
bombay prohibition act (bom. xxv of 1949), section 129a -- constitution of india, article 20(3) -- whether section 129a violates guarantee against self-incrimination contained in article 20(3) -- meaning of word 'resistance' in section 129(3) & (5)--evidence obtained contrary to article 20(3) whether admissible.;section 129a of the bombay prohibition act, 1949, does not violate the protection against compulsory incrimination guaranteed by article 20(3) of the constitution of india, and is valid.;the word 'resistance' occurring in sub-sections (3) and (5) of section 129a of the bombay prohibition act, 1949, applies to only active resistance and not to passive non-co-operation.;m.p. sharma v. satish chandra, district magistrate, delhi [1954] s.c.r. 1077, mohd. dastagir v. state of.....tarkunde, j.1. the question referred to us in these two criminal references is whether section 129a of the bombay prohibition act, which allows compulsion to be exercised for the medical examination of a person believed to have consumed an intoxicant and for the extraction of his blood for chemical analysis, violates the guarantee against self-incrimination contained in article 20(3) of the constitution. in both the cases the accused have been charged with offences under section 66(1)(b) and section 85 of the prohibition act, and the prosecution have sought to rely on evidence of the alcoholic content of the blood extracted from the veins of the accused. along with these two criminal references, we have heard a criminal application filed under article 228 of the constitution, in which the.....
Judgment:

Tarkunde, J.

1. The question referred to us in these two criminal references is whether Section 129A of the Bombay Prohibition Act, which allows compulsion to be exercised for the medical examination of a person believed to have consumed an intoxicant and for the extraction of his blood for chemical analysis, violates the guarantee against self-incrimination contained in Article 20(3) of the Constitution. In both the cases the accused have been charged with offences under Section 66(1)(b) and Section 85 of the Prohibition Act, and the prosecution have sought to rely on evidence of the alcoholic content of the blood extracted from the veins of the accused. Along with these two criminal references, we have heard a criminal application filed under Article 228 of the Constitution, in which the petitioner, who is being tried by a Magistrate for an offence under Section 129A(5) of the Prohibition Act of offering resistance to the collection of his blood, prays that this Court should decide on the constitutional validity of that section and, after doing so, should either dispose of the case itself or remit it for disposal to the learned Magistrate. There being no appearance for the accused in the two criminal references, Mr. R. B. Kotwal was requested to appear amicus curiae and we are thankful for the assistance given by him. Mr. Shrikhande appeared for the petitioner in the criminal application, and the learned Advocate General was heard on behalf of the State in the three matters.

2. Section 129A was introduced in the Bombay Prohibition Act by Amending Act No. XII of 1959, and seems to be sequel to the decision of this Court in Deoman Shamji v. The State (1958) 61 Bom. L.R. 30. In that case, the accused had resisted by force the attempt of certain police officers to take him forcibly to a doctor for medical examination, and was charged on that account of an offence under Section 353, Indian Penal Code. He was acquitted by this Court on the ground that there was no legal provision justifying the use of force by the police officers to take the accused against his will to a doctor for medical examination. An additional argument was urged in that case on behalf of the accused that the act of the police officers amounted to the exercise of testimonial compulsion in violation of Article 20(3) of the Constitution; but the Court observed that it was not necessary to decide upon the soundness of that contention, and that the question may fall for determination if the Legislature made a provision for compulsory medical examination.

3. The amending Act No. XII of 1959, besides introducing Section 129A in the Bombay Prohibition Act, made certain other changes, including an amendment to Section 66. Section 66(b) (now Section 66(1)(b)) provided penalty for the consumption of any intoxicant, and the amending Act added a provision that, where the concentration of alcohol in the blood of an accused person is shown to be not less than 0.05%, the burden of proving that the liquor consumed was a medicinal or toilet preparation, or was otherwise not prohibited by the Act, shall be upon the accused person, and the Court shall, in the absence of such proof, presume the contrary. This provision appears to have been made as a result of the opinion expressed by Tendolkar J. on the basis of expert evidence in C. R. H. Readymoney Ltd. v. State of Bombay : AIR1958Bom181 that a man may be said to show signs of intoxication when the concentration of alcohol in his blood was as low as 0.05%. Section 129A was introduced with a view to enable the prosecution to obtain and produce evidence which might raise the rebuttable presumption as provided by the amendment introduced in Section 66. The relevant provisions of Section 129A are as follows:-

129A. (J) Where in the investigation of any offence under this Act, any Prohibition Officer duly empowered in this behalf by the State Government, or any Police Officer, has reasonable ground for believing that a person has consumed an intoxicant and that for the purpose of establishing that he has consumed an intoxicant or for the procuring of evidence thereof, it is necessary that his body be medically examined, or that his blood be collected for being tested for determining the percentage of alcohol therein, such Prohibition Officer or Police Officer may produce such person before a registered medical practitioner (authorised by general or special order by the State Government in this behalf) for the purpose of such medical examination or collection of blood, and request such registered medical practitioner to furnish a certificate on his finding whether such person has consumed any intoxicant, and to forward the blood collected by him for test to the Chemical Examiner or Assistant Chemical Examiner to Government, or to such other Officer as the State Government may appoint in this behalf.

(2) 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.

(3) If any person offers resistance to his production before a registered medical practitioner under Sub-section (I) or on his production before such practitioner to the examination of his body or to the collection of his blood, it shall be lawful to use all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test.

(4) ...

(5) Resistance to production before a registered medical practitioner as aforesaid, or to the examination of the body under this section, or to the collection of blood as aforesaid, shall be deemed to be an offence under Section 186 of the Indian Penal Code.

(6) ...

(7) ...

(8) ...

The amending Act also introduced in Section 2 of the Prohibition Act Clause (38) defining a 'registered medical practitioner'. This expression means any person who is entitled to practise any system of medicine in the State and includes a dentist and even a veterinary practitioner.

4. This was followed by Rules made by the State Government under Section 143 of the Act, called the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. The Rules and the form of certificate appended thereto make it clear that, while the medical practitioner has to examine every person brought to him, he may not collect and forward the blood of the person if he does not deem it necessary. The medical practitioner is to note down in the certificate the age and weight of the person and also whether his breath was or was not smelling of alcohol, whether his speech was or was not incoherent, whether his gait was steady or unsteady, and whether his pupils were normal or dilated. The Rules also provide that, when blood is collected, not less than 5 cc. of veinous blood is to be taken by inserting a sterilised syringe into the skin surface, which is cleaned with sterilised water but without the use of alcohol.

5. In examining the constitutional validity of Section 129A, we have rigidly excluded from consideration all arguments with regard to the propriety or otherwise of the very considerable limitations on personal liberty which have been imposed by this section. It was urged before us that the provision allows a person to be dragged for medical examination and to be manhandled for the forcible extraction of blood from his veins, and that too by a medical practitioner who might be only a veterinary doctor, and all this for the purpose of deciding whether circumstances existed under which a rebuttablo presumption of having taken prohibited alcohol might not be raised against him. It is, however, not within our competence to decide whether, under the circumstances, the extent of interference with personal liberty is reasonably justified by the object to be achieved. While the judiciary can be approached for an enquiry into the reasonableness of restrictions placed on the right 'to acquire, hold and dispose of property' guaranteed by Article 19(1)(f) of the Constitution, no equally comprehensive right to the judicial examination of the reasonableness of restrictions imposed on personal liberty has been granted by the Constitution. Certain specific aspects of personal liberty have been included in Article 19, such as the right to freedom of speech and expression, the right to assemble peaceably and without arms, the right to form associations or unions, etc., and the reasonableness of any restrictions placed on these specific rights has been made justiciable. The general right to personal liberty, apart from specific aspects thereof, is covered by Article 21, which says that 'no person shall be deprived of his life or personal liberty except according to procedure established by law.' Where personal liberty is restricted by a particular law, and the law does not relate to topics mentioned in Article 19, the examination of its reasonableness is an exclusively legislative function. Our Constitution does not contain a provision Corresponding to the due process clause of the Fifth and Fourteenth Amendments of the American Constitution. It follows that Article 20(5) is the only constitutional provision with reference to which the validity of Section 129A of the Prohibition Act can be examined.

6. It is necessary further to observe that the principle of protection against testimonial compulsion embodied in Article 20(3) is a principle of somewhat limited utility and that it would not be proper to allow its ambit to be enlarged by judicial interpretation. In M. P. Sharma v. Satish Chandra. District Magistrate, Delhi : 1978(2)ELT287(SC) the Supreme Court, after observing that there has been considerable debate as to the utility of the principle and that serious doubts were held in some quarters that this principle has a tendency to defeat justice, observed (p. 1086) :

In view of the above background, there is no inherent reason to construe the ambit of this fundamental right as comprising a very wide range. Nor would it be legitimate to confine it to the barely literal meaning of the words used, since it is a recognised doctrine that when appropriate a constitutional provision has to be liberally construed, so as to advance the intendment thereof and to prevent its circumvention.

It is thus clear that, while the principle must be so construed as to be made effective within its ambit, it should not be extended to cover a wider field than what it has come to occupy.

7. Before considering the question whether Section 129A of the Prohibition Act violates Article 20(3) of the Constitution, it is necessary to examine an argument advanced by the learned Advocate General which, if accepted, might make it unnecessary to give any finding on the constitutional question submitted to us in the two Criminal References. The learned Advocate General urged that Article 20(3) merely provides that no compulsion shall be exercised against an accused person to furnish evidence against himself, but the article does not say, and the principle thereof does not require, that the evidence obtained by the exercise of testimonial compulsion shall not be admitted against the accused. In the two criminal references before us, the prosecution wishes to rely on the evidence relating to the percentage of alcohol found in the blood of the two accused, and according to the argument of the learned Advocate General, this evidence can be led irrespective of whether the accused were subjected to testimonial compulsion, as alleged by them. In support of this argument, the learned Advocate General relied on the majority decision of the United States Supreme Court in Wolf v. Colorado (1949) 888 U.S. 25, 93 Law. ed. 1782. In that case, the majority view was that, in a prosecution in a State Court for a State crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. The relevant part of the Fourteenth Amendment provides that no State shall 'deprive any person of.. .property, without due process of law'; and the view of the majority of the Supreme Court was that certain evidence obtained by a wrongful search and seizure was competent evidence, despite the fact that it was obtained in contravention of the due process clause contained in the Fourteenth Amendment. In our view, this decision offers no assistance in considering the admissibility of evidence obtained in contravention of the guarantee of protection against self-incrimination, which is contained in a part of the Fifth Amendment of the American Constitution.

8. The learned Advocate General also relied on the majority decision of the United States Supreme Court in Knapp v. Schweitzer (1958) 857 U.S. 371, 2 Led. 2d 1398. In that case, the petitioner in the course of a State trial had refused to answer certain questions despite a State law by which he was granted immunity from any penalty or forfeiture arising from self-incriminatory statements made by him, his ground for refusal to answer being that he might thereby expose himself to prosecution for a Federal offence. He was committed for contempt of Court by a State Judge, and the order was challenged by him before the Federal Supreme Court on a writ of certiorari. It was observed by the majority that the clause against testimonial compulsion contained in the Fifth Amendment (which only applied to Federal trials and not to State trials) did not confer immunity from Federal prosecution to one compelled to give incriminatory testimony under the provisions of a State immunity statute. This decision also does not support the contention of the learned Advocate General. The decision appears, on the contrary, to imply that evidence procured by the exercise of testimonial compulsion in the course of a Federal trial for a breach of a Federal law, would not be admissible by virtue of the protection against self-incrimination given by the Fifth Amendment. The majority decision is referable to the rigid demarcation of jurisdictions which obtains in the U.S.A. between State Courts dealing with State laws and Federal Courts dealing with Federal laws, and has little relevance to the determination of the scope of protection against self-incrimination.

9. In our view, the rule that an accused person shall not be compelled 'to be a witness against himself' is primarily a rule of evidence, both in form and in content, and it must follow that a breach of the rule renders the evidence incompetent. At its inception, the rule operated at the stage of Court trials, and was invoked to prevent the accused from being compelled to testify against himself. By a later development, the rule was extended to the pre-trial stage of investigation into offences. It is this feature of the protection against self-incrimination-namely, that it is primarily a rule of evidence-that distinguishes it from protection from unreasonable searches and seizures granted by the Fourth Amendment of the American Constitution, and from the due process clause contained in the Fifth and the Fourteenth Amendments. The protection against compulsory self-incrimination would be largely illusory, were we to hold that although compulsion is banned by the Constitution, compelled testimony may nevertheless be used against the accused. It is, moreover, implicit in the decision of the Supreme Court in Sharma's case that evidence obtained by the use of testimonial compulsion is incompetent. In that case, certain documents were seized from the petitioners in execution of search warrants issued by a Magistrate under Section 96 of the Criminal Procedure Code, and the petitioners had prayed in their applications before the Supreme Court that, as the seizure of the documents amounted to the exercise of testimonial compulsion, the documents should be returned to them. If the evidence furnished by the documents was competent evidence despite the alleged testimonial compulsion, and if the prayer for the return of documents did not follow from the plea that their seizure was contrary to Article 20(5), it was obviously unnecessary for the Supreme Court even to consider the question whether the search warrants issued by the Magistrate contravened the protection against self-incrimination granted by Article 20(3). We must, therefore, hold that evidence obtained by the exercise of testimonial compulsion contrary to Article 20(5) of the Constitution is incompetent and inadmissible.

10. Turning to the question referred to us, Article 20(5) provides that 'no person accused of any offence shall be compelled to be a witness against himself'. In considering whether Section 129A of the Prohibition Act offends against this article, two questions are involved; (1) whether Section 129A applies to persons accused of any offence, and (2) whether that section compels them to be witnesses against themselves. On the first of these questions, assistance can be derived from certain observations of the Supreme Court in Sharma's case. Their Lordships stated that the protection afforded to an accused person 'is not merely in respect of testimonial compulsion in the Court-room, but may well extend to compelled testimony previously obtained from him'. They observed that the protection is available 'to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.'' In that case, a First Information Report had been lodged against the petitioners before search warrants were ordered to be issued by the Magistrate, and their Lordships held, tinder the circumstances, that the petitioners were persons 'accused of an offence' within the meaning of Article 20(3). In a subsequent case, Mohd. Dastagir v. State of Madras A.I.R.[1960] S.C. 756, the Supreme Court stated that the aforesaid observations in Sharma's case were unnecessary for the decision of that case, but the observations themselves were not dissented from. Apart from the fact that even obiter observations of the Supreme Court are generally binding upon us, we accept, with great respect, the view that the protection against testimonial compulsion is not confined to the Court-room, but is available during the course of investigation into a specific offence which has been formally alleged against the accused. Now, Sub-section (1) of Section 129A of the Prohibition Act makes it clear that the question of producing a person before a registered medical practitioner arises 'in the investigation of any offence under this Act'. Section 117 says that, save as otherwise expressly provided in the Act, all investigations are to be made in accordance with the provisions of the Code of Criminal Procedure; and Section 118 provides that offences under the Act are to be dealt with as cognisable offences. Under the Criminal Procedure Code, the First Information relating to the commission of a cognisable offence is recorded under Section 154, and investigation into the alleged offence is in the normal course undertaken thereafter in accordance with the procedure laid down in Section 156. We, therefore, hold that Section 129A of the Prohibition Act is intended to apply, and does apply, to persons 'accused of an offence'.

11. The next question then is whether the provisions of Section 129A compel such persons to be witnesses against themselves. The question is really two-fold: (i) what is meant by the phrase 'to be a witness', and (ii) what type of compulsion is envisaged and sought to be prevented by Article 20(5). On the first part of the question, the Supreme Court observed in Sharma's case (p. 1087) : . 'To be a witness' is nothing more than 'to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes....

Applying this test to the provisions of Section 129A, it must follow that the blood of an accused person, which might provide evidence of the amount of alcohol consumed by him, as well as the other information gathered by a medical practitioner, such as the size of his pupils and the manner of his speech and gait, would amount to evidence, so that its compelled production must come within the mischief of Article 20(3). On the second part of the question, in regard to the type of compulsion that is banned by Article 20(3), the Supreme Court observed (p. 1088) :. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part....

Obviously, the adjective 'volitional' has been advisedly used, and not the adjective 'voluntary', for although an act brought about by coercion cannot be voluntary, it may nevertheless be volitional. According to this test, compulsion which requires an accused person to do any volitional act for furnishing evidence against himself amounts to testimonial compulsion, not the compulsion which requires an accused person to submit to evidence being collected from him or obtained from his possession. It was by applying this test that the Supreme Court held in Sharma's case that no testimonial compulsion was exercised on the petitioners merely because they were required to submit to documents being seized from their possession. Their Lordships rejected the argument that compulsory seizure of documents should be dealt with on the same footing as a compulsory process calling upon the accused to produce them, and observed (p. 1096) :.Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3) as above explained. But search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are acts of occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense....

Accordingly, the constitutional validity of Section 129A depends upon whether the compulsion warranted by that section requires an accused person to do volitional acts to produce evidence against himself, or whether the compulsion merely requires him to submit to evidence being collected' from him.

12. In view of the clear statement of law found in Sharma's case, it is not necessary to make more than a passing reference to the various High Court decisions which were cited before us. In R. Pillai v. P. Nadar A.I.R.[1956] Mad. 632 a single Judge of the Madras High Court held that a direction given by a Court asking the accused to give his thumb impression amounts to asking him to furnish evidence contrary to Article 20(5) of the Constitution, and that such a direction is invalid. In Thambianna, In re [1957] Mad. 66 a Division Bench of the Madras High Court held, with reference to an offence under the Madras Prohibition Act, that the accused, who had submitted without protest to medical examination, could not object to the medical evidence being produced against him. The learned Judges observed that, while the accused cannot be compelled to produce any evidence against himself, such evidence can be taken or seized provided of course such taking or seizure is allowed by some law. For the same reason, a Division Bench of the Calcutta High Court, in Farid Ahmed v. The State : AIR1960Cal32 held that an order of a Magistrate permitting the investigating officer to take specimen writings and signatures of the accused is violative of the fundamental right guaranteed in Article 20(3) of the Constitution. One of the learned Judges who decided the case observed that a thumb impression might be taken by forcibly catching hold of the thumb of the accused, but that volitional compulsion is necessarily involved in requiring a man to write according to dictation or otherwise.

13. The learned Advocate General, however, urged that the whole passage in the judgment of the Supreme Court in Sharma's case dealing with the scope of the protection against testimonial compulsion was declared to be obiter by the Supreme Court itself in Mohd. Dastagir v. State of Madras A.I.R.[1960] S.C. 756 and that the real scope of the doctrine is much narrower. According to him, the protection cannot be invoked where an accused is required, even by a volitional act, to produce an object (such as his blood), the condition of which he is not in a position to alter. The learned Advocate General argued that the real objection to compelled testimony is that the accused, in an effort to save himself, may produce false evidence, and that the objection does not arise in cases where the accused cannot possibly falsify the evidence which he is required to produce. In our view, the Supreme Court in Mohd. Dastagir's case observed that only that part of the judgment in Sharma's ease which dealt with the meaning of the expression 'accused of an offence' was unnecessary for deciding that case, and not the other parts of the judgment which explained what is meant by being 'compelled to be witness against himself'. However, the learned Advocate General urged that, for the sake of completeness, we should hear him on the supposition, even if we held the supposition to be ill-founded, that no final tests regarding the scope of testimonial compulsion were laid down by the Supreme Court in Sharma's case, and we have heard him accordingly. In support of his argument, the learned Advocate General placed considerable reliance on certain observations made by a single Judge of the Punjab High Court in Pakhar Singh, v. The State . In that case, the learned Judge held that the taking of thumb, finger and palm impressions of the accused in the course of a trial and under an order made by the presiding Magistrate was not in contravention of Article 20(3) of the Constitution. It will be noticed that this decision is in consonance with the tests laid down by the Supreme Court in Sharma's case. However, in explaining the principle of the constitutional guarantee against compulsory self-incrimination, the learned Judge observed (p. 298):

Force or threat of force may endanger the truth by distorting it, where it is applied for bringing pressure in matters of vocal or written words. As a result of compulsion, the testimony of a witness can be made to deviate from truth, but by such a process the scars or lines on his body or his physiognomy cannot undergo any change.

The constitutional immunity is not violated by compelling a witness to stand up and show his face for the purpose of identification. He can be ordered to disclose a tell-tale scar, for purposes of his identification. Similarly, the fingerprints, foot prints, palm prints, photographs of the accused, for purposes of comparison with those found at the scene of the crime, do not lose their probative character, whether they have been obtained involuntarily or voluntarily.

These observations, in so far as they justify the exercise of compulsion in respect of volitional acts, go counter to the observations of the Supreme Court in Sharma's case. In order to show that the protection against compulsory self-incrimination is really based on the principle that the accused should not be tempted to give false testimony, the learned Advocate General took us through the history of that doctrine as expounded in several American decisions such as Brown v. Walker (1806) 161 U.S. 591, 40 Law. ed. 819, Twining v. New Jersey (1908) 211 U.S. 78, 53 Law. ed. 97, and United States of America v. White (1944) 322 U.S. 694, 88 Law. ed. 1542. Having gone through the relevant passages in these judgments, as well as the account of the history of the doctrine as given in Phipson on Evidence (9th ed.), pp. 213-215, we are satisfied that the principle of protection against self-incrimination arose from a sense of fairness which revolted against the oppressive and inquisitorial methods which were formerly adopted in requiring the accused to confess to his crimes, and not from a desire to safeguard truth from the possibility of false testimony.

14. Regarding the various American decisions to which our attention was invited, both by the learned Advocate General and by Mr. R. B. Kotwal in reply, we must observe that we have failed to find any some guidance therein for assessing the true scope of the principle of protection against self-incrimination. The principle is embodied in one of the clauses of the Fifth Amendment of the American Constitution. But the Fifth Amendment applies only to federal Jaws and proceedings, and has no application to the laws and proceedings of the federating States. Most of these States have also incorporated a similar principle in their respective constitutions, but there is a bewildering variety of judicial opinion in the application of this principle in the different States. The differences of opinion will be found summarised in 'American Jurisprudence', Vol. 58, pp. 58-62. No decision of the United States Supreme Court was brought to our notice in which any process similar to the compulsory extraction of blood was tested directly on the principle of protection against self-incrimination embodied in the Fifth Amendment. Mr. Kotwal relied on the decision of the United States Supreme Court in Rochin v. California (1952) 342 U.S. 165, 96 Law. ed. 183. In that case, two capsules containing morphine had been swallowed by the accused, and were extracted by forcing an emetic solution through a tube into his stomach against his will. The Court as a whole held that the conviction obtained by these methods was bad, but the majority based their decision on the ground that the conviction violated the due process clause of the Fourteenth Amendment, while the minority relied on the 'more permanent protection of individual liberty' contained in the clause against compulsory self-incrimination in the Fifth Amendment, which, according to the minority, applied indirectly even to a trial for an offence under a State law. As against this ease, the learned Advocate General drew our attention to the subsequent decision of the United States Supreme Court in Breithaupt v. Abram (1957) 852 U.S. 432, 1 Law. ED. 448. In that case, the accused had been convicted in a State trial of involuntary manslaughter arising from a motor accident caused by the accused by driving under the influence of drink. While the accused was in an unconscious condition after the accident, a sample of blood was taken from his veins, and evidence of the percentage of alcohol in the blood was introduced at the trial and was the basis of the conviction. On a writ of certiorari, the majority of the Supreme Court upheld the conviction on the ground that the extraction of blood from the body of the accused, when he was in an unconscious condition, did not violate the due process clause in the Fourteenth Amendment. In doing so, the majority specifically negatived the argument urged on behalf of the accused that the principles contained in the Fifth Amendment applied to his ease. It appears, moreover, from a certain observation in the majority judgment, and more clearly from the minority judgments, that the fact of the accused having been unconscious when blood was extracted from his body was one of the reasons why the majority came to the conclusion that the procedure did not violate the due process clause in the Fourteenth Amendment. Whatever that may be, this decision, like the earlier one, has no relevance to the scope of the clause against compulsory self-incrimination contained in the Fifth Amendment.

15. Having heard the learned Advocate General on the supposition, which we do not find to be correct, that the Supreme Court did not lay down any final tests in Sharma's case in regard to the scope of the protection against compulsory self-incrimination, we are of the view that those tests should nevertheless be accepted and applied in deciding whether the right guaranteed by Article 20(3) of the Constitution is violated in any particular case.

16. The decisive question, therefore, is whether the compulsion exercised under the provisions of Section 129A of the Prohibition Act requires the accused to co-operate actively in the process which results in his medical examination and m the collection of his blood, or whether it merely requires him to submit passively to that process. It will be noticed that Sub-section (1) of Section 129A merely says that under certain circumstances a Prohibition Officer or a Police Officer '' may produce such person'' before a registered medical practitioner, and that Sub-section (2) casts on the latter the duty to examine such person and to collect and forward his blood in the prescribed manner. Then Sub-section (5) provides that, if any person offers resistance to his production before a registered medical 4 practitioner or to the examination of his body or to the collection of his blood, 'it shall be lawful to use all means reasonably necessary' to secure the production of such person or the examination of his body or the collection of his blood. Mr. Kotwal has strongly urged that the word 'resistance' occurring in Sub-section (3) must be held to include both passive non-cooperation as well as active obstruction. According to Mr. Kotwal, even if the accused merely insists on his constitutional right of not being required to cooperate with this procedure-if, for instance, he refuses to walk to the place of the medical practitioner or, on being taken there, he refuses to lie on a table or to extend his hand for the purpose of facilitating the extraction of his blood-force would have to be used against him, and the only provision in Section 129A which sanctions the employment of force is Sub-section (5), which comes into operation where any person 'offers resistance'. There being no other provision in the section which warrants the use of force against a passive non-cooperator as distinguished from an active resister, it must follow, according to Mr. Kotwal, that the 'resistance' contemplated by Sub-section (3) includes both passive non-cooperation and active obstruction. The word 'resistance' is also used in the penal provision of Sub-section (5), so that Sub-section (5) penalises, according to Mr. Kotwal's argument, not only a person who illegally offers obstruction, but also a person who exercises his constitutional right of passive non-cooperation. So interpreted, Sub-section (5), in so far as it seeks to penalise a person who refuses to furnish evidence likely to incriminate him, is clearly violative of Article 20(5) of the Constitution.

17. The learned Advocate General, in reply, urged that we must try to interpret the provisions of Section 129A, as far as that is possible, on the presumption that these provisions are in conformity with the Constitution. The Legislature must be presumed to have known its own limitations and to have intended to enact only such laws as are within its competence. This principle was adopted by the Federal Court while examining the constitutional validity of the Hindu Women's Rights to Property Act, 1937, in In re Hindu Women's Rights to Property Act : [1957]1SCR930 . The Supreme Court approved of that principle and acted upon it in The State of Bombay v. R. M. D. Chamarlaugwala : [1957]1SCR874 and in R. M. D. Chamarbaugwalla v. The Union of India : [1957]1SCR930 . The learned Advocate General urged that, acting on this presumption, we should interpret the word 'resistance' occurring in Sub-sections (5) and (5) of Section 129A as meaning active resistance as distinguished from passive non-cooperation. This can be done if we can find that Sub-sections (1) and (2) of Section 129A enable such force to be used as might be required to produce a passively non-cooperative person before a medical practitioner and to have him examined and his blood collected by the medical practitioner. It is not difficult to assume, as far as Sub-section (1) is concerned, that the right which is given to a Prohibition Officer or a Police Officer to produce a person before a medical practitioner carries with it the right to use such force as may be required to overcome the passive non-cooperation of such a person. It is, however, difficult to assume, in the case of Sub-section (2), that the duty which is cast on a registered medical practitioner of examining the person and of collecting his blood carries with it the authority to use such force as might be required for these purposes. A registered medical practitioner may not even be a Government servant, and it is not easy to suppose that the Legislature, by mere implication, conferred upon him the duty as well as the authority to use such force as might be required, for instance, to put a person on a table and to have his hand extended and properly secured for the purpose of blood extraction. Our attention, however, was invited to Section 133 of the Act, which says that every officer of the Government shall be legally bound to assist any Police Officer or other person authorised in this behalf in carrying out the provisions of the Act, A Prohibition Officer or a Police Officer, who produces an accused person before a medical practitioner, would normally he present when the person is medically examined and his blood collected, and the officer is legally bound under Section 133 to assist the medical practitioner in carrying out the latter's duties under Sub-section (2) of Section 129A. If Sub-sections (1) and (2) are so construed, it is not necessary to interpret the word 'resistance' occurring in Sub-sections (5) and (5) as inclusive of passive non-cooperation, so that the penal provision of Sub-section (5) would remain restricted to only those who offer active resistance to their production before a medical practitioner and to the examination of their bodies and the collection of their blood.

18. If we were to interpret the provisions of Section 129A without recourse to the presumption in favour of its constitutional validity, we would, on the whole, he inclined to agree with Mr. Kotwal that the word 'resistance' was intended to include both passive non-cooperation as well as active resistance. Sub-section (5), by providing that 'it shall be lawful to use' the necessary force if any person offers 'resistance' indicates that the word 'resistance' has been used in the more comprehensive sense. However, it is certainly possible to interpret the word in the more restricted sense, and on the presumption that the Legislature knew its limitations, we must hold that the word was intended to apply to only active resistance and not to passive non-cooperation. No constitutional invalidity, therefore, attaches to any part of Section 129A.

19. On this finding it is not quite necessary, but is advisable, to refer to the further argument of the learned Advocate General that Sub-section (5) is clearly severable from the other parts of Section 129A, and that, even if Sub-section (5) were held to be void, the rest of Section 129A would stand unaffected. The various rules regarding severability of valid and invalid parts of a statute have been laid down by the Supreme Court in R. M. D. Chamarbaugwalla v. The Union of India. One of the tests to be applied is 'Whether the Legislature would have enacted the valid part if it had known that the rest of the statute was invalid'. If we were to hold that Sub-section (5) of Section 129A is invalid because it seeks to penalise both passive non-cooperation as well as active resistance to the process resulting in the collection of incriminating evidence, we would have found no difficulty in further holding that the Legislature would have enacted the remaining parts of Section 129A, had it known that Sub-section (5) was invalid. In that case, a person who offered active resistance to the collection of evidence under Sub-sections (/) and (2) of Section 129A could have been punished under Section 186 of the Indian Penal Code, if the person to whom he offered active resistance was a public servant. It also appears to us that none of the other tests of severability laid down by the Supreme Court in the aforesaid decision would be violated by treating Sub-section (5) as severable from the other parts of Section 129A.

20. We, accordingly, hold that Section 129A of the Bombay Prohibition Act does not violate the protection against compulsory self-incrimination guaranteed by Article 20(3) of the Constitution, and is valid.

21. That disposes of the two criminal references, Regarding the criminal application under Article 228 filed by Mr. Shrikhande's client, the learned Advocate General has fairly told us that, according to the evidence of the prosecution, the petitioner offered resistance to the collection of blood as well as urine, that the forcible collection of urine was not authorised by the provisions of Section 129A, and that it would not be possible for the prosecution to say that the resistance offered by the petitioner is attributable only to attempts made to collect his blood and not to the attempts made to collect his urine. Under the circumstances, the learned Advocate General agreed with us that the petitioner must be acquitted of the alleged offence under Section 129A(5) of the Bombay Prohibition Act, read with Section 186 of the Indian Penal Code. Accordingly, we acquit the petitioner in Criminal Application No. 1034 of 1960.


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