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Arjun Sitaram Dende Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1980CriLJ380
AppellantArjun Sitaram Dende
RespondentThe State of Maharashtra
Excerpt:
.....arising out of the certificate issued by the chemical analyser. it was then handed over by the medical officer to the constable with the certificate and forwarding letter in form 'b'.from the report of the chemical analyser it is further clear that he had received it with the seals perfect as per the copies sent. this circumstance, therefore, in my view clearly shows that rule 2 does not exclude a policeman or the police officer to become a special messenger if the medical officer so chooses. in my opinion the said view taken by this court is also in consonance with the well established principle of interpretation of statute. in para 7 of the said judgment the supreme court has quoted with approval the well known treatise from maxwell on interpretation of statutes as well as craies..........test) rules, 1959 and particularly sub-rule (2) of rule 4, which reads as under:4. ...(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 form 'b' which shall bear a facsimile of the seal or monogram used for sealing the phial of the sample blood.sub-rule (1) of rule 4 deals with the manner of collection of blood and forwarding of sample. the said sub-rule also can he divided in different parts. in this particular case the challenge is based only on, that part of the rule which lays down the sample when collected shall be forwarded either by.....
Judgment:

Dharmadhikari, J.

1. The accused-applicant in this case was working as a watchman in the Civil Hospital at Sholapur. He was prosecuted for an offence punishable under Sections 66 (1) (b) and 85 (1) of the Bombay Prohibition Act for consuming liquor and for behaving in disorderly manner on the night between May 12, 1972 and May 13, 1972 in the premises of the' Civil Hospital, Sholapur. That night, Head Constable Sidram Kale (P. W. 1) was on duty in Sadar Bazar Chowky. He received the telephonic message from the police station officer that the accused was behaving in a disorderly manner while under the influence of drink in the hospital premises itself. The Ward-boy Sable had sent this message on telephone to the Police Station Officer. In pursuance of the telephonic message, P. W. No. 1 Kale went to the Civil Hospital. He found the accused behaving in a disorderly manner. P. W. No. 1 Kale produced the accused before the Medical Officer Dr. Smt. Kishti (P. W. 4), who examined him and issued the certificate vide Exh. 19. The Medical Officer collected the sample of the intravenous blood of the accused, in a phial and duly sealed it. The forwarding letter in Form 'B' was also sent with the sealed phial. The forwarding letter and the packet containing the sealed phial were delivered to the Head Constable Sidram and this very sealed phial was subsequently sent to the Chemical Analyser, Bombay, whose report vide Ex. 12, shows that the blood contained 0.126 per cent of W/V of ethyl alcohol. On these facts, the accused was prosecuted for the aforesaid offences.

2. The accused admitted that he was examined by the Medical Officer, who collected his sample of the intravenous blood. However, he added that his relations with the then R. M. O. had been strained and therefore this false case has been concocted against him. He further stated that the blood phial was not handed over by the Medical Officer to the police on the day on which the blood was taken. According to the accused, on that night he had consumed 1.1/5 cup of Jeevan Mixture as he was suffering from stomach-ache. It appears from record that in support of its case, the prosecution examined P. W. No. 1 Sidram Kale, Police Head Constable, P. W. No. 2 Ramchandra Ganesh Kulkarni, a Muddemal Clerk from Sadar Bazar Police Station, P. W. No. 3 Sambhaji Ishwarappa Kumbhar, the panch witness, P. W. No. 4, Dr. Vaijayanti Sadashiv Kisti, Medical Officer, and P. W. No. 5 Jagannath Manilal Rathod, another panch witness and P. W. No. 6 Rangnath Tukaram Kale another Police Constable, who had carried the sealed blood phial to the Chemical Analyser, Bombay. The accused has not examined anybody in his defence.

3. After appreciating all the evidence on record, the Chief Judicial Magistrate, Sholapur, vide his judgment dated November 15, 1977, held the accused guilty for the offence under Section 66 (1) (b) of the Bombay Prohibition Act and sentenced him to undergo simple imprisonment till rising of the Court and to pay a fine of Rs. 100/- and in default of payment of fine to suffer further simple imprisonment for seven days. So far as the offence punishable under Section 85 (i) (ii) is concerned, the accused was acquitted of the said charge. Being aggrieved by this judgment of conviction and sentence, the accused filed an appeal before the Sessions Court, Sholapur. The Sessions Judge, Sholapur concurred with findings of fact recorded by the Judicial Magistrate and dismissed the appeal. Against these orders, the present Criminal Revision Application is filed by the accused.

4. Shri Patankar, the learned Counsel appearing for the accused contended before me that the learned Judges of both the Courts below have committed an error in convicting the accused for the offence punishable under Section 66 (1) (b) of the Bombay Prohibition Act. According to Shri Patankar, the Medical Officer concerned had sent the phial in which the blood was collected in contravention of the mandatory provisions of sub-rule (2) of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 and therefore, the conviction based on a certificate issued by the Chemical Analyser is wholly vitiated. In support of this contention Shri Patankar has placed reliance upon a decision of the Gujarat High Court reported in Karansingh Balubha v. State of Gujarat : AIR1967Guj219 . Shri Patankar has also contended that the Courts below should have accepted the defence of the accused that on that night he had consumed a dose of 'Jeevan Mixture', as a result of which 0.126 per cent W/V of ethyl alcohol was found in his blood.

5. So far as the second contention raised by Shri Patankar is concerned, that the learned Judges of the Courts below should have accepted the defence of the accused based on consumption of 'Jeevan Mixture', in my opinion, there is no substance in the said contention. After appreciating all the evidence on record, the Courts below have come to the conclusion that the accused had failed to rebut the presumption arising out of the certificate issued by the Chemical Analyser. Since, the concentration of alcohol found in the blood of the accused Was more than 0.05 per cent W/V of ethyl alcohol, it was for him to prove that he had consumed a substance which was not prohibited liquor but was a medicinal or a toilet preparation etc., containing alcohol, the consumption of which was not in contravention of the Act, Rules, Regulations or Order made thereunder. In the present case but for the bare statement of the accused there is no material on record to indicate that he had consumed 'Jeevan Mixture' on that night. On the basis of the bare statement of the accused made in his statement recorded under Section 313 of the Cr. P. C., without anything more, it cannot be held that the accused has successfully rebutted the presumption raised in this behalf. Therefore, in my opinion there is no substance in this contention.

6. So far as the contention based on the contravention of Rule 4 (2) of the Rules is concerned, it is not possible for me to accept the said contention also. This Court had an occasion to consider the scope of the provisions of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, in Narayan Krishnaji Marulkar v. State of Maharashtra : AIR1967Bom213 , wherein the Division Bench of this Court held that the provisions of the said rule are directory and not mandatory. It i? no doubt true that the Gujarat High Court in Karansingh Balubha v. State of Gujarat has distinguished the said decision on facts and has not approved the ratio laid down therein, as according to the learned Judge of the Gujarat High Court this Court had not considered the decision of the Supreme Court reported in Ukha Kolhe v. State of Maharashtra AIR 1963 SC 1531. However, in my opinion Gujarat decision in Karansingh's case cannot help the accused in this case.

7. The decision of the Gujarat High Court in Karansingh v. State is obviously distinguishable on facts. From the bare reading of the said decision it is clear that in that case on evidence it was found that the doctor did not send the sample by post or by special messenger with any forwarding letter bearing facsimile of the seal used on the sample to the P. S. O. Thus the salutary safeguards which secured the sample phial do not come in the hands of the investigating officer during the course of its despatch from the doctor to the Chemical Analyser and the said provision was completely disregarded. Even the forwarding letter which would have established the identity of the sample phial or the similarity of the seals was not produced by the prosecution. The doctor who was examined as a prosecution witness had in terms admitted that he had added anti-coagulant substance in the blood before he sealed the bottle and that it was not collected in the prescribed phial. There was nothing to show whether precaution about preservative had been taken by the Doctor. Therefore in that case it was held that all the mandatory safeguards which are prescribed for collection of blood and despatch of the phial to the Chemical Analyser had been completely disregarded. The decision of this Court in Narayan v. State : AIR1967Bom213 was, therefore, distinguished on facts and, therefore, ultimately Gujarat decision in its turn also turned on its own facts and did not lay down any general law in that behalf.

8. In this context it cannot be forgotten that in this case we are dealing with the rules framed under the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 and particularly sub-rule (2) of Rule 4, which reads as under:

4. ...

(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 Form 'B' which shall bear a facsimile of the seal or monogram used for sealing the phial of the sample blood.

Sub-rule (1) of Rule 4 deals with the manner of collection of blood and forwarding of sample. The said sub-rule also can he divided in different parts. In this particular case the challenge is based only on, that part of the Rule which lays down the sample when collected shall be forwarded either by post or with special- messenger. Thus, in substance this part provides for the manner in which the sample will be sent. It can be sent either by post or with a special messenger. Thus; in substance it deals with the manner of delivery of the sample i. e. to say either by post or by special messenger so that the sample would reach the testing officer. Various safeguards are provided by the rules so that it will not be possible for anybody to tamper with the sealed phial. It has to be accompanied by the forwarding letter in form 'B' which shall bear the facsimile of the seal of the monogram used in sealing of the phial of the sample blood. Therefore, the only question which requires consideration in this case is to find out as to whether only because ,the sample was handed over to Rangnath (P.W. 6), who was a police Constable it can be said that the certificate issued by the Chemical Analyser, i. e. the Testing Officer is wholly vitiated. In this context .it is pertinent to note that from the Chemical Analyser's report it is quite obvious that he had received the packet on 17-5-1972 with the seals in tact as per the copy attached. Thus there is ample evidence on record to indicate that there was no tampering with the seals, It. is also clear from the evidence of the Medical Officer that he had sealed the blood phial. bearing the monogram of the hospital. It was duly labelled with the lable bearing the name of the accused and the initials of the doctor. It was then handed over by the Medical Officer to the constable with the certificate and forwarding letter in form 'B'. From the report of the Chemical Analyser it is further clear that he had received it with the seals perfect as per the copies sent. In these circumstances it is. not possible for me to accept the contention of Mr. Patankar. In this context a reference could also usefully be made to the decision of the Supreme Court in Ukha Koine v. State of Maharashtra AIR 1963 SC 1531, to which a reference was made by the Gujrat High Court in Karansingh v. State and particularly in Para 22 of the said judgment which reads as under:

Finally, it was urged that the blood specimen was not submitted in the manner prescribed by rules framed under the Bombay Prohibition Act, and therefore, it could not be regarded : as 'duly submitted'. The Government of Born-bay has by notification dated April 1, 1959 framed rules under Clause (W) -of Section 143 of the Bombay Prohibition Act called the Bombay Prohibition (Medical Examination and Blood Test Rules, Rule 3 deals with examination of a person by a registered medical practitioner before whom he is produced under Sub-section (1) of Section 129-A. Rule 4 provides for the manner of collection and forwarding of blood specimen and Rule 5 deals with certificates of tests of 'sample blood'. All these rules deal with medical examination of a person who is produced before a registered Medical Practitioner under Sub-section (1) of Section 129A. To an examination to which Section 129A does not apply, the rules would have no application. The law not having prescribed a particular method of submitting specimen of blood collected from an accused person when blood has been collected before any investigation has started, it is necessary to consider the argument whether the expression 'duly admitted' used in Section 510 of the Cr. P. 0. means merely in the manner prescribed by rules in that behalf or as pointed out by the learned Sessions Judge, submitted after taking adequate precautions for ensuring its safety and for securing against tampering. In the present case the blood specimen was collected by Rote and thereafter it was handed over to the Police Officer on demand by him and ultimately submitted to the Chemical Analyser for his examination, it would, in our judgment, be regarded as 'duly submitted.'

Further this very decision of the Gujarat High Court was referred to and distinguished by this Court in State of Maharashtra v. Namdeo 1971 MahLJ 47. In this decision the learned Single Judge has relied upon his own earlier decision in Criminal Application No. 23 of 1969, decided on 17th-18th April, 1969, wherein it was held that the provisions of sub-rule (2) of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 are directory and not mandatory and substantial compliance of the same should be treated as sufficient. It appears from the said unreported decision that a similar contention was raised before the learned Judge in Criminal Revision Application No. 23 of 1969. While repelling the said contention Bhole J. observed as under:

Nowhere is it laid down in Rule 4 that a special messenger should be a person other than a police officer or a police constable. The Rule 4 (2) provides that the sample shall be forwarded to the Testing Officer with a special messenger so as to reach him within the seven days from the date of its collection. Surely the words 'special messenger' cannot by any stretch of imagination be construed to be a person other than the police officer.

Thereafter a reference was made to the provisions of Rule 5 and thereafter the learned Judge observed:

Therefore when it is laid down in Rule 5 that the testing officers shall send the certificate to the Registered Medical Practitioner, it does not mean that the Police officer should not be the special messenger. It is the contention of the learned Counsel for the applicant that because the testing officer has to send the certificate to the Registered Medical Practitioner and not directly to the police officer, therefore, the special messenger could not be the police officer or a policeman. It is difficult for me to accept this contention in the above circumstances. It is moreover laid down in R, 5 that the testing officer has to send the certificate to the medical practitioner because the blood is so forwarded by him for testing. This circumstance, therefore, in my view clearly shows that Rule 2 does not exclude a policeman or the police officer to become a special messenger if the medical officer so chooses. It should also be remembered that the medical officer has to label the phial and seal it by means of a sealing wax with the official seal- or the monogram of the Registered medical practitioner. Therefore, the police officer surely would not tamper with the official seal or the monogram of the registered medical practitioner, if the medical officer so chooses him as a special messenger. In this view of the matter, therefore, the contention of the learned Counsel for the applicant is without substance.

In that case reliance was placed by the learned Judge upon the earlier Division Bench decision of this Court in Narayan v. State : AIR1967Bom213 . The decision of this Court in State v. Namdeo 1971 MahLJ 47, was subsequently followed by Jahagirdar, J., in Criminal Revn. Appln. No. 376 of 1967 (Bom), wherein also a similar contention was raised. Therefore, it appears to be a consistent view of this Court that this part of the Rule is not mandatory. In my opinion the said view taken by this Court is also in consonance with the well established principle of interpretation of statute. In this context a reference can usefully be made to the decision of the Supreme Court in State of Kerala v. Alassery Mohammad etc. : 1978CriLJ925 wherein the Supreme Court had an occasion to consider the question as to whether Rule 22 of the Prevention of Food Adulteration Rules, 1959, is directory or mandatory. In para 7 of the said judgment the Supreme Court has quoted with approval the well known treatise from Maxwell on Interpretation of Statutes as well as Craies on Statute Law. Paras 7 and 8 of the said decision of the Supreme Court read as under:

In the eleventh edition of the well-known treatise, Maxwell on Interpretation of Statutes are to be found at Page 362 onwards certain guidelines laid down for determining whether a particular statute of Statutory Rule is imperative or directory. 'Where indeed the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention', that is to say, such a requirement would be imperative. At page 364 it is stated-

The general rule is that an absolute enactment must be obeyed or fulfilled exactly, but- it is sufficient if a directory enactment be obeyed or fulfilled substantially'.

A few principles may now be extracted with advantage from the seventh edition of Craies on Statute Law.

Page 62. When a statute is passed for the purpose enabling something to be done and prescribed the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute, but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory'.

Page 262. 'It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed... that in each case you must look to the subject-matter to consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory'.

It was also observed by the Supreme Court in the said decision that the use of the word 'shall' is not decisive. Further only because the rule is held to be recommendatory, it does not mean that it gives a charter or a licence to the officer concerned for violating the rules. They must remember that if the directory rules are meant to be observed and substantially complied with, then it is quite obvious that even if the rules are held to be directory, it does not mean that they can be broken. If in a given case, breach is shown to be substantial or it is established that the sample was tampered or is not the same sample, which was sent to the Testing Officer, then depending upon the facts and circumstances of each case the matter will obviously stand on a different footing. However, having considered the scheme and object of the rules it is not possible for me to accept the far-fetched contention raised by Mr. Patankar that every breach of the rule, howsoever minor it might be, must result in acquittal of the accused.

9. In the result, therefore, the revision petition fails and is dismissed. Rule is discharged.


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