1. On April 3, 1961 at about 2-30 A.M., a motor vehicle fell into a ditch bythe side of a highway near Edlabad, District Jalgaon, and all the occupants ofthe vehicle were injured. One Mohmad Yusuf who was in that vehicle died of theinjuries. The appellant was tried before the Judicial Magistrate, First Class,Bhusawal, for offences of rash and negligent driving when he was under theinfluence of liquor and thereby causing the death of Mohmad Yusuf and injuriesto four other occupants of the motor vehicle and also for offences under themotor Vehicles Act. The Trial Magistrate held that the evidence was notsufficient to prove that the appellant was driving the motor vehicle at thetime of the mishap, and acquitted the appellant of the offences under theMotor Vehicles Act and also under the Indian Penal Code. But he held that theevidence established that the appellant had at the material time consumedillicit liquor and had thereby committed an offence punishable under s. 66(b)of the Bombay Prohibition Act. He accordingly convicted the appellant, andsentenced him to suffer rigorous imprisonment or three months and to pay a fineof Rs. 500/- and in default of payment of fine, to suffer rigorous imprisonmentfor two months. On appeal to the Court of Session, the order of conviction wasset aside, and a retrial was directed, because in the view of the Court therehad not been a 'fair an full' trial. A revision application filedagainst the order in the High Court of Bombay was summarily dismissed. Theappellant has appealed to this Court with special leave against the order ofthe High Court.
2. The case for the prosecution, in so far as it relates to the charge forthe offence under the Bombay Prohibition Act, is briefly this : Early in themorning of April 3, 1961 as a result of motor vehicle Temp. No. 170 B.M.B.falling in a ditch near Edlabad several persons including the appellant wereinjured. At about 6 a.m., the appellant reached the Civil Hospital, Jalgaon. OnDr. Kulkarni, Resident Medical Officer of the Hospital informing him about thedeath of Mohmad Yusuf, the appellant fainted and he was admitted as an indoorpatient in the Hospital. On examination, the appellant was found 'smellingof alcohol'. Dr. Kulkarni thereupon directed one Dr. Rote to collect aspecimen of blood from the body of the appellant, and accordingly some venusblood was collected in a phial. The phial was closed in the presence of Dr.Rote and sealed. But before treatment could be given to the appellant, he wasdischarged from the Hospital at the request of some persons who accompaniedhim. The blood specimen remained in the Hospital. Information about the mishapto the motor vehicle was received the police at Jalgaon at about 8 a.m., onthat day and a case was registered against the appellant and four other personsfor certain offences under the Indian Penal Code and the Motor Vehicles Act,and on receiving information that all the incumbents of the motor vehicle wereat the time of the mishap in a state of intoxication, also under s. 66(b)ofthe Bombay Prohibition Act XXV of 1949. The Officer in charge of theinvestigation sent the appellant to the Civil Hospital for medical examination.The condition of the appellant was found by Dr. Kulkarni to be normal. A specimenof the appellant's blood was again collected at about 11 a.m., and was sent tothe Chemical Analyser, for examination and report. On April 12, 1961, theSub-Inspector in charge of the investigation came to learn that a specimen ofblood of the appellant had been taken by the Hospital authorities early in themorning of April 3, 1961. On demand by the police officer the Medical Officerdelivered the phial containing the blood specimen together with a certificatefrom Dr. Rote that a blood specimen of the appellant was collected by him at 6a.m., on April 3, 1961. The investigating officer affixed an additional seal onthe package and forwarded the same with a special messenger to the ChemicalExaminer of April 18, 1961. On examination of the contents of the phial it wasfound that there was concentration of alcohol to the extent of 0.069 per centw/v ethyl alcohol. This concentration being in excess of the concentrationmentioned in s. 66(2) of the Bombay Prohibition Act, a complaint for theoffence under the Bombay Prohibition Act was also lodged against the appellant.
3. At the trial, on behalf of the prosecution among others were examined Dr.Kulkarni, Dr. Rote and the investigating officer. The report of the ChemicalExaminer was also tendered in evidence. But the special messenger who carriedthe sample was not examined; nor was any evidence given about the place whereand the condition in which the phial containing the blood specimen was kept inthe Hospital. The appellant in his statement to the Court denied thatconcentration of alcohol detected by the Chemical Examiner from the specimentaken by Dr. Rote exceeded 0.069 per cent w/v. He admitted that on April 3,1961 he was in the Civil Hospital in the early morning, that when he was toldby Dr. Kulkarni about the death of Mohamad Yusuf he 'suffered ashock', that thereafter he went home immediately, and during that time his'mental condition was not good'. He further stated :
'I fell unconscious. I was semi-conscious. Duringthat time my relations and friends gave me certain liquid as a sort ofmedicine. I felt like that. Then I was carried to the hospital in the samecondition. As I regained my consciousness I told doctor that I want to leavethe hospital because my friend was dead in hospital and as I did not feel itproper to live in hospital under such circumstances, so I let the hospital. Ido not know who gave me medicine when I fell down on the road, after I had leftthe hospital. This was, when I left the hospital for my home.'
4. The defence of the appellant therefore was that when he was informedabout the death of Mohamad Yusuf he fainted and some medicinal preparation wasadministered to him by his friends to revive him and thereafter he was carriedto the Civil Hospital He has not admitted that any specimen of blood from hisbody was collected, but it appears to be his defence that if excessiveconcentration of alcohol was traced in the blood it was the result of somemedicinal preparation administered to him by his friends.
5. Section 66(1) of the Bombay Prohibition Act, in so far as it is material,provides :
'(1) Whoever incontravention of the provisions of this Act, or any rule, regulation, or ordermade, or of any licence, permit, pass or authorization issued, thereunder -
(a) X X X
(b) consumes, uses, possessesor transports any intoxicant.........
shall, on conviction, be punished-
'(i) for a first offence,with imprisonment for a term which may extend to six months and with fine whichmay extend to one thousand rupees :'
6. 'Intoxicant' is defined in s. 2(22) as meaning 'any liquor,intoxicating drug, opium or any other substance, which the State Governmentmay, by notification in the Official Gazette, declare to be an intoxicant; andby s. 2(24) liquor includes '(a) spirits, denatured spirits, wine, beer,toddy and all liquids consisting of or containing alcohol; and (b) any otherintoxicating substance which the State Government may, by notification in theOfficial Gazette, declare to be liquor for the purposes of this Act.' Thecontravention referred to in s. 66(b)is the contravention of acts prescribedby s. 13. That section prohibits, amongst other acts, consumption and use ofliquor. The provisions of s. 13 which occur in Chap. III are subject to ageneral exception contained in s. 11, which provides, in so far as it ismaterial, that :
'Notwithstanding anything contained in thefollowing provisions of this Chapter, it shall be lawful to import, export,transport, manufacture, bottle, sell, buy, possess, use or consume anyintoxicant.....in the manner and to the extent provided by the provisions ofthis Act or any rules, regulations or orders made or in accordance with theterms and conditions of a licence, permit, pass or authorization grantedthereunder.'
7. The validity of the provisions of the Act as originally enacted wasconsidered by the Court in The State of Bombay v. F. N. Balsara (1951) S.C.R.682., and it was held inter alia that clause (b) of s. 13, in so far as itaffected the consumption or use of medicinal and toilet preparations containingalcohol was invalid. The Legislature of the Bombay State thereafter amended theAct by enacting s. 24A which provided a general exception in respect of toilet,medicinal and antiseptic preparations and flavouring extract, essence or syrup.
8. As a consequence of the amendment made by a s. 24A the operation of theprohibition contained in s. 13 and the other sections was limited in tworespects : (1) by s. 11 where the contravention was in pursuance of and in themanner and to the extent provided by the provisions of the Act or any rules orregulations or orders made or in accordance with the terms and conditions of alicence, permit, pass or authorisation granted; and (2) in respect ofpreparation and materials exempted under s. 24A. When, therefore, a person wascharged with consuming any intoxicant in contravention of the provisions of theAct or of the rules, regulations or orders made or of any licence, pass, permitor authorisation under s. 66(1)(b), it had to be established that thecontravention was not protected either by s. 11 or s. 24A. It is clear thatdirect evidence about the consumption of liquor in contravention of theprovisions of the Act, when such consumption is prohibited, would notordinarily be forthcoming. Mere evidence that the person charged with consumingor using an intoxicant was in a state of intoxication would not be sufficientto bring home the charge under s. 66(1)(b). That is illustrated by the decisionof this Court in Behram Khurshed Pesikaka v. The State of Bombay 0065/1954 : 1955CriLJ215 . It was held in that case that the effect of the declaration inThe State of Bombay v. F. N. Balsara : 2SCR682 , that clause (b) ofs. 12 of the Bombay Prohibition Act is void under Art. 13(1) of theConstitution in so far as it effects the consumption or use of liquid medicinalor toilet preparations containing alcohol is to render a part of s. 13(b) ofthe Bombay Prohibition Act inoperative and ineffectual and thus unenforceable,and that the bare circumstance that a citizen accused of an offence under s.66(b)of the Bombay Prohibition Act is smelling of alcohol is compatible withhis innocence as well as his guilt : the smell of alcohol may be due to thefact that the accused had contravened the enforceable part of s. 13(b) of theBombay Prohibition Act, or it may well be due to the fact that he had takenalcohol which fell under the unenforceable and inoperative part of the section.The onus therefore lies on the on the prosecution to prove that the alcohol ofwhich he was found smelling came under the category of prohibited alcohol andtherefore within the enforceable part of s. 13(b).
9. The Legislature of the State of Bombay being faced with thisinterpretation imposing a serious burden which the prosecution had to undertakein trials for offences of consumption or use of liquor contrary to theprovisions of the Act, for due enforcement of the law and to prevent evasion,enacted certain additional provisions by Bombay Act 12 of 1959. By that Act, s.66 was renumbered s. 66 and sub-s. (2) was added thereto in the followingform :
'Subject to the provisions of sub-section (3),where in any trial of an offence under clause (b) of sub-section (1) for theconsumption of an intoxicant, it is alleged that the accused person consumedliquor, and it is provided that the concentration of alcohol in the blood ofthe accused person is not less than 0.05 per cent, weight in volume then theburden of proving that the liquor consumed was a medicinal or toiletpreparation, or an antiseptic preparation or solution, or a flavouring extract,essence or syrup, containing alcohol, the consumption of which is not incontravention 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 suchproof presume the contrary.'
10. By sub-s. (3) the provisions of sub-s. (2) are not to apply toconsumption of liquor by indoor patients during the period they are beingtreated in any hospital, convalescent home, nursing home, or dispensary,maintained or supported by Government or a local authority, or by charity, orby such a other persons in such other institutions, or in such circumstances asmay be prescribed. The result of this amendment was to make, except in thecases expressly provided in clause (3), concentration of alcohol in excess of0.05 per cent, weight in volume in blood presumptive evidence of consumption ofliquor in contravention of the provisions of the Act and the burden of provingthat the liquor consumed was a medicinal or toilet preparation or an antisepticpreparation or solution, or a flavouring extract, essence or syrup, lay uponthe person charged with the offence.
11. The case of the prosecution in this case rested primarily upon thereport of the Chemical Examiner certifying that alcohol concentration in theblood of the appellant which was extracted at 6 a.m. on April 3, 1961, was inexcess of the percentage prescribed by s. 66(2). The prosecution had,therefore, to establish that the specimen examined by the Chemical Examiner wasthe specimen of blood collected from the body of the appellant and that thespecimen disclosed concentration of alcohol in excess of the permissiblelimits. It is somewhat unfortunate that the trial Magistrate did not appreciatethat the only important piece of evidence on which the prosecution case againstthe appellant rested was contained in the report of the Chemical Examiner.There is no dispute that the appellant went to the Civil Hospital early in themorning of April 3, 1961. He has admitted that fact in his statement before theCourt. Dr. Kulkarni has deposed that on being told about the death of MohamadYusuf the appellant fainted and was admitted to the Hospital, and that he foundthat the appellant was smelling of alcohol. Dr. Kulkarni has stated that notreatment was given to the appellant and there is no suggestion by theappellant that he was given any treatment in the Hospital. Dr. Rote was askedby Dr. Kulkarni to collect a specimen of blood from the body of the appellant,and a blood specimen was accordingly taken and the phial was sealed in hispresence by a laboratory servant. Dr. Rote stated in cross-examination that nomethyl spirit was applied before extracting blood. The certificate of Dr. Rotedated April 13, 1961, that he had collected blood from the body of theappellant on the morning of April 3, 1961, and that the bottle containing theblood was sealed in his presence corroborates the statement.
12. But there is not evidence on the record about the person in whosecustody this phial remained till it was handed over to the Sub-Inspector ofpolice on April 13, 1961, when demanded. There is also no evidence about theprecautions taken to ensure against tampering with the contents of the phialwhen it was in the Civil Hospital and later in the custody of the policebetween April 13, 1961, and April 18, 1961. Even the special messenger withwhom the phial was sent to the Chemical Examiner was not examined : and Ext. 43which was the acknowledgment signed by some person purporting to belong to theestablishment of the Chemical Examiner does not bear the official designationof that person. The report of the Chemical Examiner mentions that a sealedphial was received from the police officer by letter No. C/010 of 1961 datedApril 18, 1961, but there is no evidence that the seal was the one which wasaffixed by Dr. Rote on the phial. These undoubtedly were defects in theprosecution evidence which appear to have occurred on account of insufficientappreciation of the character of the burden which the prosecution undertakes inproving a case of an offence under s. 66(1)(b) relying upon the presumptionunder s. 66(2).
13. It was assumed by the Trial Magistrate that the phial containing bloodcollected by Dr. Rote was kept in a safe place and could not be tampered with,that it was kept in such a place that it was not liable to deteriorate, thatthereafter this phial also remained with the police at a place where it couldnot be tampered with, and that the phial sealed by Dr. Rote was delivered bythe special messenger to the establishment of the Chemical Examiner and thatthe same phial was examined by the Chemical Examiner, and that between April 3,1961, and April 19, 1961, when the contents of the phial were subjectedchemical examination, they had not deteriorated. Both the Prosecutor andcounsel for the appellant appear to have contributed to the somewhat slipshodtrial of the case. Dr. Kulkarni and Dr. Rote were examined as witnesses for theprosecution, but no examination or cross-examination of either was directed inrespect of these important matters, and even to the investigating officer, noquestions seeking to elicit information on these matters were asked. The reportof the chemical examination of the blood specimen collected at 11 a.m. on April3, 1961, was also not tendered in evidence by the prosecution though the samewas demanded.
14. The Sessions Judge pointed out some of these infirmities. He arrived atthe conclusion that as the examination of the blood specimen taken at 6 a.m. onApril 3, 1961, was not obtained in the course of investigation at the directionof the investigating officer, who had reasonable grounds for believing that theappellant had consumed an intoxicant, the 'presumption under s. 129B'could not come to the aid of the prosecution. The learned Judge observed - andit was conceded at the Bar before him - that the prosecution could stillestablish that the appellant had consumed liquor otherwise than by acertificate obtained in respect of examination of the blood concentrationprocured in the manner provided under cls. (1) and (2) of s. 129A, but as thetrial Magistrate had relied merely upon the presumption under s. 66(2) and hadnot analysed the evidence in that light, nor had he directed his attention tothe question whether the other evidence on the record, apart from thepresumption, established such case, the order of the conviction could not besustained. Observing that there had not been a 'fair and full trial'in respect of the offence under the Bombay Prohibition Act, the Sessions Judgeset aside the order of the trial Magistrate and directed that the case be sentback to the Magistrate and be retired in the light of the observations made byhim in the course of the judgment.
15. An order for retrial of a criminal case is made in exceptional cases,and not unless the appellate Court is satisfied that the Court trying theproceeding had no jurisdiction to try it or that the trial was vitiated byserious illegalities or irregularities or on account of misconception of thenature of the proceedings and on that account in substance there had been noreal trial or that the Prosecutor or an accused was, for reasons over which hehad no control, prevented from leading or tendering evidence material to thecharge, and in the interests of justice the appellate Court deems itappropriate, having regard to the circumstances of the case, that the accusedshould be put on his trial again. An order of re-trial wipes out from therecord the earlier proceeding, and exposes the person accused to another trialwhich affords the prosecutor an opportunity to rectify the infirmitiesdisclosed in the earlier trial, and will not ordinarily be countenanced when itis made merely to enable the prosecutor to lead evidence which he could but hasnot cared to lead either on account of insufficient appreciation of the natureof the case or for other reasons. Harries, C.J., in Ramanlal Rathi v. The State : AIR1951Cal305 , observed :
'If at the end of a criminal prosecution theevidence leaves the Court in doubt as to the guilt of the accused the latter isentitled to a verdict of not guilty. A retrial may be ordered when the originaltrial has not been satisfactory for particular reasons, for example, ifevidence had been wrongly rejected which should have been admitted, or admittedwhen it should have been rejected, or the Court had refused to hear certainwitness who should have been heard. But retrial cannot be ordered on the groundthat the prosecution did not produce the proper evidence and did not know howto prove their case.'
16. In the present case, undoubtedly the trial before the Magistratesuffered from irregularities which we have already set out. The evidence, suchas was let, was deficient in important respects; but that could not be asufficient ground for directing a retrial. If the Sessions Judge thought thatin the interests of justice and for a just and proper decision of the case itwas necessary that additional evidence should be brought on the record heshould have, instead of directing a retrial and reopening the entireproceeding, resorted to the procedure prescribed by s. 428(i) of the Code ofCriminal Procedure. There is no doubt that if the ends of justice require, theappellate Court should exercise its power under the said section.
17. The observations made by the Sessions Judge do clearly suggest that inthis case he was of the view that 'additional evidence wasnecessary'. The examination of both Dr. Rote and Dr. Kulkarni wasperfunctory. What steps were taken by Dr. Rote after he collected the bloodspecimen and sealed the phial, to whom he entrusted the phial, where it wasstored and what steps were taken for preventing interference, deterioration ortampering with the same, are matters which were never investigated. Neither theprosecutor nor counsel for the defence asked any question in that behalf, andeven the trial Magistrate did not take any steps to obtain information in thatbehalf. The method of storage of the phial when it was in the custody of thepolice officers an its dealing therewith when it was in the custody of thespecial messenger have been left in obscurity. But the evidence does disclosethat the phial was sealed in the presence of Dr. Rote, and the report of theChemical Examiner also disclosed that he had opened a phial which was sealedand that the seal was intact, with the device 'Medico-Legal Bombay'.Evidence regarding the dealing with the phial since it was sealed and it wassubmitted for examination of the Chemical Examiner may appear to be formal; butit has still to be led in a criminal case to discharge the burden which lapupon the prosecution. Such evidence would appear to be 'necessary'within the meaning of s. 428(1) of the Code of Criminal Procedure, and may,having regard to the circumstances, be permitted to be led in appeal. Theattention of the Magistrate does not appear to have been directed to thequestion whether the time which elapsed between the collection of blood and itsexamination had any material bearing on the result of the examination. TheCourt would normally require some evidence that the concentration of alcohol isnot due to deterioration or delay in the examination of the contents of thephial or to exposure to weather conditions, before raising the presumptionunder s. 66(2). An opportunity to lead this evidence may be given under s. 428,not with a view to fill up lacunae in the evidence but to regularise the trialof the accused and to ensure that the case is established against him beyondreasonable doubt, more so when for the purpose of convicting the accusedreliance is sought to be placed upon a presumption arising from the report of aChemical Examiner, who is not examined before the Court, and whichsubstantially raises a presumption of guilt. In this connection, thecircumstance that the regularity of the process for extraction of blood and thesubsequent dealing of the blood phial was not challenged by the appellant inthe trial court is material.
18. But counsel for a the appellant contends that the report of the ChemicalExaminer on which alone substantially the case of the prosecution rests isinadmissible in evidence. He submits that in order to raise a presumption unders. 66(2) of the Act, in a trial of a person charged with committing an offenceunder s. 66(1)(b), it must be proved that concentration of alcohol in the bloodof the accused person is not less than 0.05 per cent weight in volume, and thatcan only be proved by the report of the Chemical Examiner or the MedicalOfficer in the manner provided by s. 129B in respect of examination of bloodcollected in the circumstances and under conditions prescribed by s. 129A.Counsel says that the Legislature having enacted a special provision relatingto the procedure by which evidence about concentration of alcohol in blood isto be collected, examined and placed before the Court, no other method ofestablishing concentration of alcoholic content in the blood of a person chargedwith an offence under s. 66(1)(b) is permissible, and that even though aconcession was made before the Court of Session by counsel appearing for theappellant, evidence aliunde the report under s. 129B was inadmissible. Startingon this hypothesis, counsel submits that the report of the Chemical Examiner inrespect of blood collected not in the manner and in the conditions set out ins. 129A, cls. (1) and (2), cannot be used as evidence or raising a presumptionagainst the appellant, and beyond the bare circumstance that Dr. Kulkarninoticed that the appellant was 'smelling of liquor' at 6 a.m. onApril 3, 1961, there is no evidence on which the appellant could be convicted.
19. It is necessary in considering the validity of this argument to examinethe scheme of Sections 66(2), 129A and 129B, which were added by Act. 12 of 1959. Ina trial of an accused person for an offence of consuming liquor under s.66(1)(b) of the Act, s. 66(2) makes proof of concentration of alcohol in theblood of the accused in excess of the prescribed quantity presumptive evidencethat he has consumed, in contravention of the provisions of the Act or therules, regulations or orders made thereunder, liquor which is not excepted fromthe prohibitions in Ch. III, and the burden lies upon the accused to prove thatliquor consumed by him was a medicinal, toilet or antiseptic preparation or asolution or flavouring extract, essence or syrup containing alcohol.Sub-section (2) of s. 66 provides for raising a presumption upon proof of concentrationof alcohol in blood : it does not prescribe the manner or method of provingconcentration of alcohol in blood of the person charged with the offence unders. 66(1)(b) exceeding the percentage mentioned in sub-s. (2).
20. The material part of s. 129A is :
'(1) Where in theinvestigation of any offence under this Act, any Prohibition Officer dulyempowered in this behalf by the State Government or any Police Officer, hasreasonable ground for believing that person has consumed an intoxicant and thatfor the purpose of establishing that he has consume an intoxicant or for theprocuring of evidence thereof it is necessary that his body be medicallyexamined, or that his blood be collected for being tested for determining thepercentage of alcohol therein, such Prohibition Officer or Police Officer mayproduce such person before a registered medical practitioner (authorised bygeneral or special order by the State Government in this behalf) for thepurpose of such medical examination or collection of blood, and request suchregistered medical practitioner or furnish a certificate on his finding whethersuch person has consumed any intoxicant and to forward the blood collected byhim 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 medicalpractitioner before whom such person has been produced shall examine suchperson and collect and forward in the manner prescribed the blood of suchperson, and furnish to the officer by whom such person has been produced, acertificate in the prescribed from containing the result of his examination.The Chemical Examiner or Assistant Chemical Examiner to Government, or otherOfficer appointed under sub-section (1) shall certify the result of the test ofthe blood forwarded to him, stating therein, in the prescribed form, thepercentage of alcohol, and such other particulars as may be necessary orrelevant.
(3) If any person offersresistance to his production before a registered medical practitioner undersub-section (1) or on his production before such practitioner to theexamination of his body or to the collection of his blood, it shall be lawfulto use all means reasonably necessary to secure the production of such personor the examination of his body or the collection of blood necessary for thetest.
(4) x x x x
'(5) Resistance toproduction before a registered medical practitioner as aforesaid, or to theexamination of the body under this section, or to the collection of blood asaforesaid, shall be deemed to be an offence under section 186 of the IndianPenal Code.
(6) x x x
(7) x x x
(8) Nothing in this section shallpreclude the fact that the person accused of an offence consumed in intoxicantfrom being proved otherwise than in accordance with the provisions of thissection.'
21. The section is intended primarily to provide for compelling a personreasonably believed by an Officer investigating an offence under the Act or aby a Prohibition Officer duly empowered, to have consumed liquor, to submithimself to medical examination, and collection of blood. Before a person can becompelled to submit himself to medical examination, two conditions have to befulfilled. It must be in the course of investigation of an offence under theAct; and that Prohibition Officer duly empowered in that behalf by the StateGovernment, or Police Officer has reasonable ground for believing that a personhas consumed liquor, and that for the purpose of establishing that such aperson has consumed an intoxicant, or for procuring evidence thereof, it isnecessary that his body be medically examined or his blood be collected. It isonly when these conditions exist that a person can be sent or produced before aregistered medical practitioner for purposes of medical examination orcollection of blood. By sub-s. (5), resistance to production before aregistered medical practitioner or to the examination of his body or collectionof blood is made unlawful. By sub-s. (2), the registered medical practitioneris obliged to examine the person produced before him and to collect and forwardin the manner prescribed the blood of such person and to furnish to the Officera certificate in the prescribed form containing the result of his examination.But sub-s. (8) expressly provides that proof of the fact that a person hasconsumed an intoxicant may be secured in a manner otherwise than as provided ins. 129A. Therefore, production for examination of a person before a registeredmedical practitioner during the course of investigation by a competent officerwho has reasonable ground for believing that the person has consumed anintoxicant and for establishing that fact examination is necessary, is not notthe only method by which consumption of an intoxicant may be proved. Aninvestigating officer or a Prohibition Officer empowered by the StateGovernment must, if he desires to have a person examined, or his blood taken,in the course of investigation for an offence under the Bombay Prohibition Act,take steps which are prescribed in s. 129-A and the certificate of theregistered medical practitioner and the report of the Chemical Examiner made onthe result of the test of the blood forwarded to him are by s. 129B madeadmissible evidence in any proceeding under the Act, without examining eitherthe registered medical practitioner or the Chemical Examiner. But ifexamination of a person or collection of blood from the body of a person ismade otherwise than in the conditions set out in s. 129-A, the result of theexamination or of the blood may, if it is relevant to a charge for an offenceunder the Act, be proved by virtue of clause (8), and there is nothing in s.129A or s. 129-B which precludes proof of that fact if it tends to establishthat the person whose blood was taken or was examined had consumed illicitliquor.
22. Nazir Ahmed v. The King Emperor (1936) L.R. 63 IndAp 372, on whichstrong reliance was placed by counsel for the appellant in support of his pleathat s. 129A(1) & (2) and s. 129B prescribe the only method of provingconcentration of alcohol in blood; is of little assistance in this case. Inthat case the Judicial Committee held that Sections 164 and 364 of the Code ofCriminal Procedure prescribed the mode in which confessions are to be recordedby Magistrates when made during investigation and a confession before aMagistrate not recorded in the manner provided was inadmissible. In so holdingthe Judicial Committee relied upon the rule that where power is given to do acertain thing in a certain way the thing must be done in that way to theexclusion of all other methods of performance or not at all, and that the rulewas applicable to a Magistrate who was a judicial officer acting under s. 164of the Code of Criminal Procedure. It was therefore held that Sections 164 and 364of the Code of Criminal Procedure conferred powers on Magistrates and delimitedthem, and these powers could not be enlarged in disregard of the provisions ofs. 164. The Judicial Committee observed :
'As a matter of good sense, the position of accusedpersons and the position of the magistracy are both to be considered. Anexamination of the Code shows how carefully and precisely defined is theprocedure regulating what may be asked of, or done in the matter of examinationof, accused persons, and as to how the results are to be recorded and what useis to be made of such records. Nor is this; surprising in a jurisdiction whereit is not permissible for an accused person to give evidence on oath. So withregard to the magistracy; it is for obvious reasons most desirable thatmagistrates and judges should be in the position of witnesses in so far as itcan be avoided. Sometimes it cannot be avoided, as under s. 533; but wherematter can be made of record and therefore admissible as such there are thestrongest reasons of policy for supposing that the Legislature designed that itshould be made available in that form and no other. In their Lordships view, itwould be particularly unfortunate if magistrates were asked at all generally toact rather as police-officers than as judicial persons; to be by reason oftheir position freed from the disability that attaches to police-officers unders. 162 of the Code; and to be at the same time freed, notwithstanding theirposition as magistrates, from any obligation to make records under s. 164. Inthe result they would indeed be regulated to the position of ordinary citizenswitnesses, and then would be required to depose to matters transacted by themin their official capacity unregulated by any statutory rules of procedure orconduct whatever. Their Lordships are, however, clearly, of opinion that thisunfortunate position cannot in future arise because, in their opinion, theeffect of the statute is clearly to prescribe the mode in which confessions areto be dealt with be magistrates when made during an investigation, and torender inadmissible any attempt to deal with them in the method proposed in thepresent case.'
23. The rule in Taylor v. Taylor (1875) 1 Ch. D. 426, on which theJudicial Committee relied has, in our judgment, no application to this case.Section 66(2), as we have already observed, does not prescribe any particularmethod of proof of concentration of alcohol in the blood of a person chargedwith consumption or use of an intoxicant. Section 129A is enacted primarilywith the object of providing when the conditions prescribed are fulfilled, thata person shall submit himself to be produced before a registered medicalpractitioner for examination and for collection of blood. Undoubtedly, s.129A(1) confers power upon a Police or a Prohibition Officer in the conditionsset out to compel a person suspected by him of having consumed illicit liquor,to be produced for examination and for collection of blood before a registeredmedical practitioner. But proof of concentration of alcohol may be obtained inthe manner described in s. 129A(1) & (2), or otherwise; that is expresslyprovided by s. (8) of s. 129A. The power of a Police Officer to secureexamination of a person suspected of having consumed an intoxicant in thecourse of investigation for an offence under the Act is undoubtedly restrictedby s. 129A. But in the present case the Police Officer investigating theoffence had not produced the accused before a medical officer : it was in thecourse of his examination that Dr. Kulkarni, before any investigation wascommenced, came to suspect that the appellant had consumed liquor, and hedirected that specimen of blood of the appellant be collected. This step mayhave been taken for deciding upon the line of treatment, but certainly not forcollecting evidence to be used against the appellant in any possible trial fora charge of an offence of consuming liquor contrary to the provisions of theAct. If unlawful consumption of an intoxicant by a person accused, may beproved otherwise than by a report obtained in the conditions mentioned in s. 129A(1)& (2), there would be no reason to suppose that other evidence aboutexcessive concentration of alcohol probative of consumption is inadmissible.Admissibility of evidence about concentration of alcohol in blood does notdepend upon the exercise of any power of the police or Prohibition Officer.Considerations which were present in Nazir Ahmad's case (1936) L.R. 63 IndAp372, regarding the inappropriateness of Magistrates being placed in the sameposition as ordinary citizens and being required to transgress statutoryprovisions relating to the method of recording confessions also do not arise inthe present case.
24. Section 129B reads as follows :
'Any document purporting tobe -
(a) a certificate under thehand of a registered medical practitioner, or the Chemical Examiner orAssistant Chemical Examiner to Government, under section 129A or of an officerappointed under sub-section (1) of that section, or
(b) A report under the hand ofany registered medical practitioner in any hospital or dispensary maintained bythe State Government or a local authority, or any other registered medicalpractitioner authorised by the State Government in this behalf, in respect ofany person examined by him or upon any matter or thing duly submitted to himfor examination or analysis and report,
may be used as evidence of thefacts state in such certificate, or as the case may be, report, in anyproceedings under this Act; but the court may if it thinks fit, and shall, onthe application of the prosecution or the accused person, summon and examineany such person as to the subject matter of his certificate or as the case maybe, report.'
25. Section 129B, clause (a) makes a certificate by a registered medicalpractitioner or the Chemical Examiner admissible as evidence of the factsstated therein. Clause (b) of s. 129B makes another class of documentsadmissible as evidence of facts therein. These are reports of certain classesof registered medical practitioners in respect of persons examined by them orupon any matter or thing duly submitted or examination or analysis and report.Therefore clause (a) of s. 129B makes the certificate under s. 129A admissible: clause (b) makes reports of registered medical practitioners in respect ofpersons, matters or things submitted to them admissible. Section 129B is anenactment dealing with a special mode of proof of facts stated in thecertificates and reports mentioned therein : it has no other effect oroperation. The Sessions Judge in more places than one has in the course of hisjudgment referred to 'the presumption under s. 129B'. The sectionhowever deals with proof of facts, and not presumptions : it enacts a rule ofevidence similar to s. 510 of the Code of Criminal Procedure. Without proof ofthe facts stated, the contents of the certificate or report may by s. 129B beproved by tendering the document. If the document is tendered, it is admissibleas evidence of the contents thereof. The certificate or the report proved inthe manner provided by s. 129B raises no presumption about consumption ofliquor in contravention of the provisions of the Act : it is proof by evidenceof concentration of alcohol in excess of the prescribed percentage whether itis the manner provided by clause (a) or clause (b) of s. 129B, or otherwise,that gives rise to a presumption under s. 66(2).
26. Section 129A contemplates two classes of certificates - certificate ofthe result of the examination by a registered medical practitioner whether theperson sent to him has consumed any intoxicant - and the certificate of theChemical Examiner of the examination of blood collected by a registered medicalpractitioner and sent to him for examination. These are made admissible byvirtue of clause (a) of s. 129B. Clause (b) of s. 129B deals with the admissibilityof reports in respect of examination of persons or of matters or thingssubmitted to the registered medical practitioners for examination or analysisand report. These are undoubtedly different from the certificates ofexaminations made under s. 129A. The report of a registered medicalpractitioner under clause (b) of s. 129B may be upon a 'matter orthing' and so may be in respect of blood specimen submitted to him.
27. On an analysis of Sections 129A and 129B, it is clear that the Legislaturehas provided in the first instance for compelling persons suspected ofconsuming intoxicants to be produce and to submit themselves for examinationand extraction of blood which, under the law as it stood, could not be secured,but thereby the law did not provide for only one method of proving that aperson had consumed illicit liquor within the meaning of s. 66(2). TheLegislature has made the certificate of the examination under s. 129A, sub-s.(1) and (2) admissible without formal proof; but by sub-s. (8) of s. 129A, theadoption of any other method of collection of evidence for providing that aperson accused has consumed an intoxicant is not precluded and a report of anyregistered medical practitioner which tends to establish that fact in respectof matters specified in clause (b) of s. 129B is also made admissible. On thatview of Sections 129A and 129B, there is no warrant for assuming that it wasintended thereby to exclude in trials for offences under s. 66(1)(b) of the Actthe operation of s. 510 of the Code of Criminal Procedure. The Code makes adocument purporting to be a report under the hand of a Chemical Examiner andcertain other documents upon any matter or thing duly submitted to him forexamination or analysis and report admissible in any enquiry, trial or otherproceeding under the Code. The terms of s. 510 of the Code of CriminalProcedure are general; but on that account it cannot justifiable be assumedthat by enacting Sections 129A and 129B, the Legislature intended that thecertificate of a competent officer in respect of matters not governed therebyshall become inadmissible. It is open to the prosecution to rely incorroboration of a charge of consumption of illicit liquor upon a certificateunder clause (a) of s. 129B if it is obtained in the manner prescribed by s.129A, and also to rely upon the report of a registered medical practitioner inrespect of any person examined by him or upon any matter or thing dulysubmitted to him for examination or analysis and report. It is also open to theprosecution to rely upon the report of the Chemical Examiner in cases notcovered by s. 129A as provided under s. 510 of the Code of Criminal Procedure.
28. It was urged that by the enactment of s. 129A and s. 129B the Act, s.510 the Code stood repealed in its application to offences under s. 66 ofthe Bombay Prohibition Act, and reliance in this behalf was placed upon Art.254(2) of the Constitution. It is true that power to legislate on mattersrelating to Criminal Procedure and evidence falls within the Third List of theSeventh Schedule to the Constitution and the Union Parliament and the StateLegislature have concurrent authority in respect of these matters. Theexpression 'criminal procedure' in the legislative entry includesinvestigation of offences, and Sections 129A and 129B must be regarded as enacted inexercise of the power conferred by Entries 2 and 12 in the Third List. The Codeof Criminal Procedure was a law in force immediately before the commencement ofthe Constitution, and by virtue of Art. 254(2) legislation by a StateLegislature with respect to any of the matter enumerated in the Third Listrepugnant to an earlier law made by Parliament or an existing law with respectto that matter if it has been reserved for the consideration of the Presidentand has received his assent prevails in the State. Bombay Act No. 12 of 1959was reserved for the consideration of the President and had received his assent: Sections 129A and 129B will prevail in the State of Bombay to the extent ofinconsistency with the Code, but no more. That they so prevail only to theextent of the repugnancy alone and no more is clear from the words of Art. 254: Deep Chand v. The State of Uttar Pradesh (1959) Su. 2 S.C.R. 8 and Ch.Tikaramji v. The State of Uttar Pradesh : 1SCR393 . It is, difficultto regard s. 129B of the Act as so repugnant to s. 510 of the Code as to makethe latter provision wholly inapplicable to trials for offences under theBombay Prohibition Act. Section 510 is a general provision dealing with proofof reports of the Chemical Examiner in respect of matters or things dulysubmitted to him for examination or analysis and report. Section 129B dealswith a special class reports and certificates. In the investigation of anoffence under the Bombay Prohibition Act, examination of a person suspected bya Police Officer or Prohibition Officer of having consumed an intoxicant, or ofhis blood may be carried out only in the manner prescribed by s. 129A : and theevidence to prove the facts disclosed thereby, will be the certificate or theexamination viva voce of the registered Medical Practitioner, or the ChemicalExaminer, for examination in the course of an investigation of an offence underthe Act of the person so suspected or of his blood has by the clearestimplication of the law to be carried out in the manner laid down or not at all.Report of the Chemical Examiner in respect of blood collected in the course ofinvestigation of an offence under the Bombay Prohibition Act, otherwise than inthe manner set out in s. 129A cannot therefore be used as evidence in the case.To that extent s. 510 of the Code is superseded by s. 129B. But the report ofthe Chemical Examiner relating to the examination of blood of an accused personcollected at a time when no investigation was pending, or at the instance notof a Police Officer or a Prohibition Officer remains admissible under s. 510 ofthe Code.
29. It was urged before the Court of Session that the report of the ChemicalExaminer was submitted by that officer not to the Court or to the medicalofficer but to the police officer and it was by virtue of s. 162 of the Code ofCriminal Procedure inadmissible, except to the extent permitted within thestrict limits prescribed by that section. But s. 510 makes provision withregard to proof of document by production thereof, and the application of s.162(1) is expressly made subject to what is provided in the Code of CriminalProcedure. Exclusion from evidence of any part of a statement made to a policeofficer or a record from being used for any purpose at any enquiry or trial inrespect of an offence under investigation at the time when such statement wasmade is 'save as hereinafter provided'. The word'hereinafter' is, in our judgment not restricted in its operation tos. 162 alone but applies to the boy of the Code; to hold otherwise would beintroduce a patent inconsistency between s. 207A and s. 162 of the Code, for bythe former section in committal proceeding, statement recorded under s. 162 areto be regarded as evidence. The contention raised that the report made to thepolice officer by the Chemical Examiner was inadmissible in evidence wasrightly rejected.
30. Finally, it was urged that the blood specimen was not submitted in themanner prescribed by rules framed under the Bombay Prohibition Act, andtherefore it could not be regarded as, 'duly submitted.' TheGovernment of Bombay has, by notification dated April 1, 1959, framed rulesunder clause (w) of s. 143 of the Bombay Prohibition Act, called the BombayProhibition (Medical Examination and Blood Test) Rules. Rule 3 deals with theexamination of a person by a registered medical practitioner before whom he isproduced under sub-s. (1) of s. 129A. Rule 4 provides for the manner ofcollection and forwarding of blood specimen and r. 5 deals with certificate oftests of 'sample blood'. All these rules deal with medicalexamination of a person who is produced before a registered medicalpractitioner under sub-s. (1) of s. 129A. To an examination to which s. 129Adoes not apply, the rules would have no application. The law not havingprescribed a particular method of submitting specimen of blood collected froman accused person when blood has been collected before any investigation hasstarted, it is unnecessary to consider the argument whether the expression'duly submitted' used in s. 510 of the Code of Criminal Proceduremeans merely in the manner prescribed by rules in that behalf or as pointed outby the learned Sessions Judge, submitted after taking adequate precautions forensuring its safety and for securing against tampering. In the present case,the blood specimen was collected by Dr. Rote and thereafter it was handed overto the police officer on demand by him and ultimately submitted to the ChemicalExaminer for his examination, it would, in our judgment, be regarded as'duly submitted.'
31. We are unable to accept the contention of counsel for the appellant thatthe appellant should, on the view taken by the Sessions Judge be acquitted, butfor reasons already stated, we are also unable to agree with the learned Judgethat the appellant should be retired before the trial Court.
32. We accordingly set aside the order passed by the Trial Magistrate anddirect that the Sessions Judge do hear the appeal and dispose of it accordingto law, after giving an opportunity to the prosecution to lead evidence on thematters which are indicated in the course of this judgment, the additionalevidence may be taken by the Sessions Judge himself or may be ordered to berecorded in the Trial Court. The accused shall be examined under s. 342 of thecase of Criminal Procedure and be given an opportunity to lead evidence inrebuttal, if he so desires. The sessions Judge may require the presence of theChemical Examiner for examination before him or before the Magistrate, if hethinks that examination viva voce of the Chemical Examiner is necessary to docomplete justice in the case.
33. Subject to the above modification, the appeal is dismissed.
Das Gupta, J.
34. I think this appeal should be allowed. The appellant was convicted unders. 66(1)(b) of the Bombay Prohibition Act, 1949 on the charge of havingconsumed an intoxicant against the provisions of the Prohibition Act and wassentenced to pay a fine of Rs. 500/- or in default to suffer rigoriousimprisonment for two months.
35. On appeal, the Sessions Judge, Jalgaon, being of opinion that theevidence already on the record was not sufficient to establish the guilt of theaccused, set aside the conviction and sentence passed against him. He, however,ordered the case to be sent back to the learned Judicial Magistrate, Bhusawal,for re-trial so that the prosecution might have an opportunity of adducingevidence to connect the report of the chemical examination which was producedat the trial with the blood of the accused person which was taken at 6 a.m. onApril 3, 1961, a few hours after the alleged consumption of the intoxicant. Itis obvious that the only purpose that such additional evidence was expected toserve was that the prosecution would get the benefit of s. 66(2) of the BombayProhibition Act. The Revision petition filed by the accused against this orderwas rejected by the High Court of Bombay. Against that order of rejection, thisappeal has been preferred after obtaining special leave from this Court.
36. The main contention urged in support of the appeal is that as the bloodthat was taken at 6 a.m. was not taken in accordance with the provisions of s.129A of the Prohibition Act, no evidence as regards the contents of that bloodis admissible in law for the purpose of s. 66(2) of the Prohibition Act. It isnecessary to consider this contention care fully as it is not disputed that theprosecution must fail unless it can get the benefit of s. 66(2) of the ProhibitionAct.
37. To understand, the nature of the right conferred on the prosecution bys. 66(2) it will be helpful to maintain briefly a few other sections of theAct. Section 13 of the Act prohibits among other things the consumption of anintoxicant. Section 2(22) defines intoxicant to mean 'any liquor,intoxicating drug, opium or any other substance, which the State Government maybe notification in the official gazette declare to be an intoxicant.''Liquor' is defined in s. 2(24) to include (a) spirits of wine(denatured spirits), wine, beer, toddy and all liquids consisting of orcontaining alcohol; and (b) any other intoxicating substance which the StateGovernment may by notification in the official gazette, declare to be liquorfor the purpose of this Act. It is important to mention also s. 24A of the Act,the relevant portion of which for our present purpose runs thus :-
'Nothing in this Chaptershall be deemed to apply to :
(1) Any toilet preparationcontaining alcohol which is unfit for us as intoxicant liquor;
(2) Any medical preparationcontaining alcohol which is unfit for use as an intoxicating liquor;
(3) Any antiseptic preparationor solution containing alcohol which is unfit for use as intoxicating liquor;
(4) Any flavouring extract,essence or syrup containing alcohol which is unfit for use as intoxicatingliquor.'
38. As section 13 is in Chapter III the position in law is that theprohibition in s. 13 against consumption of liquor does not apply to any of thesubstances mentioned in s. 24-A. It is necessary to mention also that it hasbeen held by this Court in State of Bombay (now Gujarat) v. Narandas MangilalAggarwal (1962) Su 1 S.C.R. 15, that the burden of proving that thesubstances in respect of which the prohibition in s. 13 or any other section ofthe Chapter is allege by the prosecution to have been contravened, does notfall within any of the four mentioned in s. 24-A, is on the prosecution.
39. It is clear therefore that a prosecution for an offence under s.66(1)(b) cannot succeed by the mere proof of the fact that the accused consumedliquor. It is also to be proved that the liquor does not fall within any of thesubstances mentioned in s. 24(A). In other words, before a person can beconvicted under s. 66(1)(b) of the Prohibition Act for consumption of anintoxicant the prosecution has to prove two things. It has first to prove thatthe accused consumed an intoxicant, and secondly, it has to prove that theintoxicant was not either a toilet preparation or a medicinal preparation or anantiseptic preparation or solution containing alcohol or a flavouring extract,essence or syrup containing alcohol, which while containing alcohol was notunfit for use as intoxicating liquor. Section 66(2) of the Act comes to the aidof the prosecution in proving both these things by providing that if afteralleging that the accused consumed liquor the prosecution proves that 'theconcentration of alcohol in the blood of the accused person is not less than0.05 per cent weight in volume,' then the burden of disproving theingredients of the offence as mentioned above will be shifted to the accused.The result of this is that where the prosecution proves such concentration ofalcohol in the blood of the accused person the accused will be liable toconviction until and unless the accused proves either that he did not consumeany intoxicant or that the substance he consumed was a medical or toiletpreparation or any antiseptic preparation or solution containing alcohol or anyflavouring extract, essence or syrup containing alcohol, 'which is unfitfor use as intoxicating liquor.'
40. If there had been no special provision in the Act as to how thisconcentration of alcohol in the blood of the accused person could be proved bythe prosecution, it would undoubtedly be open to the prosecution, to obtain theblood of the accused person in any manner not prohibited by law, have itexamined by an expert and produce the evidence of the expert before the Court -either by examining the expert himself or if the law permits by producing hisreport even without such examination. A special provision has however been madeby the legislature as regards the mode in which the prosecution can bringbefore the Court the evidence as regards the concentration of alcohol in theblood of the accused person. This provision appears in s. 129A of the Act. Thatsection runs thus :-
(1) Where in the investigationof any offence under this Act, any Prohibition Officer duly empowered in thisbehalf by the State Government or any Police Officer, has reasonable ground forbelieving that a person has consumed an intoxicant and that for the purpose ofestablishing that he has consumed an intoxicant or for the procuring ofevidence thereof it is necessary that his body be medically examined, or thathis blood be collected for being tested for determining the percentage ofalcohol therein, such Prohibition Officer or Police Officer may produce suchperson before a registered medical practitioner (authorised by general orspecial order by the State Government in this behalf) for the purpose of suchmedical examination or collection of blood, and request such registered medicalpractitioner to furnish a certificate on his finding whether such person hasconsumed any intoxicant and to forward the blood collected by him for test tothe Chemical Examiner or Assistant Chemical Examiner to Government, or to suchother officer, as the State Government may appoint in this behalf.
(2) The registered medicalpractitioner before whom such person has been produced shall examine suchperson and collect and forward in the manner prescribed, the blood of suchperson, and furnish to the officer by whom such person and collect and forwardin the manner prescribed the blood of such person, and furnish to the officerby whom such person has been produced, a certificate in the prescribed formcontaining the result of his examination. The Chemical Examiner or Assistant ChemicalExaminer, to Government, or other officer appointed under sub-section (1) shallcertify the result of the test of the blood forwarded to him, stating therein,in the prescribed form, the percentage of the alcohol, and such otherparticulars as may be necessary or relevant.
(3) If any person offersresistance to his production before a registered medical practitioner undersub-section (1) or on his production before such medical practitioner to theexamination of his body or to the collection of his blood, it shall be lawfulto use all means reasonably necessary to secure the production of such personor the examination of his body or the collection of blood necessary for thetest.
(4) If the person produced is afemale, such examination shall be carried out by, and the blood shall becollected by or under the supervision of a female registered medicalpractitioner authorised by general or special order, by the State Government inthis behalf, and any examination of the body, or collection of blood, of suchfemale shall be carried out or made with strict regard to decency.
(5) Resistance to productionbefore a registered medical practitioner as aforesaid or to the examination ofthe body under this section, or to the collection of blood as aforesaid, shallbe deemed to be an offence under section 186 of the Indian Penal Code.
(6) Any expenditure incurredfor the purpose of enforcing the provision of this section including any feespayable to a registered medical practitioner or the officer appointed undersub-section (1), be defrayed out of the money provided by the StateLegislature.
(7) If any Prohibition Officeror Police Officer vexatiously and unreasonably proceeds under sub-section (1),he shall, on conviction, be punished with fine which may extend to five hundredrupees.
(8) Nothing in this sectionshall preclude the fact that the person accused of an offence has consumed anintoxicant from being proved otherwise than in accordance with provisions ofthis section'.
41. On behalf of the appellant, it is contended that no evidence as regardsthe concentration of alcohol in the blood can be given by the prosecutionunless the blood has been collected and forwarded and thereafter examined inaccordance with the procedure laid down in s. 129A. In my opinion, thiscontention should succeed.
42. It has to be noticed, in the first place, that the very detailedprovisions made in this section - s. 129 A - were made by the same amending Actwhich created this special right in favour of the prosecution by enacting s.66(2). It does not, in my opinion, stand to reason to say that even when makingsuch detailed procedure the legislature contemplated that those in charge ofthe prosecution might choose not to follow the procedure at all.
43. It has to be noticed that the production of an accused person before amedical officer is provided for in the first sub-section for two differentpurposes. One is for the examination of his body for procuring evidence ofconsumption of an intoxicant by him and the other is the collection of hisblood for being tested for determining the percentage of alcohol therein. Whenthe accused has been produced the medical practitioner will examine the accusedand himself give a certificate whether the person has consumed an intoxicant.He will also take the person's blood if so requested but he is given noauthority to examine the blood himself. The definite provision as regards theexamination of the blood is that after the blood has been collected by theregistered medical practitioner he will forward the same either to the ChemicalExaminer or the Assistant Chemical Examiner to Government or any other officeras the State Government may appoint. It is the duty of the officer be he theChemical Examiner or the Assistant Chemical Examiner or any other officerappointed for the purpose to whom the blood has been forwarded, to test theblood and to give a certificate stating the percentage of alcohol in the bloodand such other particulars as may be necessary or relevant. Provision is alsomade in the third sub-section for 'use of all means' that may benecessary to secure the production of such person or the examination of hisbody or the collection of his blood, if he offers resistance. The fourthsub-section makes special provision as regards how the medical examinationshall be carried out and the blood shall be collected where the person is afemale. The fifth sub-section provides that resistance to production before amedical practitioner or to the examination of the body or to the collection ofblood shall be deemed to be an offence. The sixth sub-section provides as tohow the expenditure shall be met. The seventh sub-section makes the ProhibitionOfficer or Police Officer liable to penalty if he has proceeded vexatiously andunreasonably under sub-section (1). The eighth sub-section which is the last inthe section and deserves special consideration will be separately dealt with.
44. One of the well-recognised principles of interpretation of statutes isthat when a law creates a new right and at the same time prescribes a mode inwhich that right may be exercised, it will, in the absence of anythingindicating a contrary intention, be ordinarily reasonable to hold that theright cannot be exercised in any other mode. In the present case, far fromthere being any indication to the contrary, all the indications are, in myopinion, in favour of the view that the prescribed mode in s. 129A was intendedby the legislature to be the only mode in which the right given to the prosecutionby s. 66(2) can be exercised. What was the reason behind the legislature'sintention to prescribe such a detailed procedure in s. 129A for theascertainment of the alcoholic content of the blood of a person accused of anoffence in connection with the consumption of an intoxicant Why did it makesuch a careful demarcation of functions between the registered medicalpractitioner before whom a person is first produced by entrusting to him onlythe duty of examining the body of the person and if so requested of collectinghis blood 'for being tested for determining the percentage ofalcohol', and the Chemical Examiner or the Assistant Chemical Examiner orany other officer appointed by the State Government in this behalf byentrusting to them only the duty of testing the blood It appears reasonableto think that the real reason behind all this detailed provision was thelegislature's anxiety to ensure that the very special right created by s. 66(2)in favour of the prosecution for the proof of alcoholic content of the bloodshifting the onus on the accused should not be availed of a in manner thatmight leave loopholes for either errors or unfair practices. This motive isalso clear from the provision made in the seventh sub-section that 'if anyProhibition Officer or Police Officer, vexatiously and unreasonably proceedsunder sub-section (1), he shall, on conviction, be punished with fine which mayextend to five hundred rupees.' All these steps taken by the legislaturefor prescribing a special procedure would be set at naught if it was left opento the Prohibition Officer or Police Officer to arrange for the taking of bloodand testing thereof in any other manner. Thus, to say that it is open to theProhibition Officer or the Police Officer to have the blood taken and alsotested by the registered medical practitioner himself for using his finding asevidence to prove alcoholic concentration in the blood for the purpose of s.66(2) would be to fly in the face of the clear indication in s. 129A that it isnot for the registered medical practitioner before whom a person is produced totest the blood, that it is for him only to collect the blood and then forwardit to the Chemical Examiner or the Assistant Chemical Examiner or such otherofficer as the State Government may appoint in this behalf to test the bloodfor the alcoholic content. To say that the legislature did not intend theprocedure as prescribed in s. 129A to be the only procedure for theascertainment of alcoholic content in a person's blood for the purpose ofgetting the benefit of s. 66(2) of the Act is really to hold that even thoughthe legislature did definitely say that the registered medical practitionershould only collect the blood and forward it to the other functionary named inthe section whose duty would be to test it, the legislature was quite contentthat this direction need not be complied with. With great respect for thelearned brethren who take the contrary view, I am of opinion, that it is whollyarbitrary to attribute to a legislature an intention that it did not mean whatit said.
45. Even if there had been any scope for doubt on the question whether thelegislature intended to prescribe the procedure to be the only procedureavailable to enable the prosecution to get the aid of s. 66(2), that doubt is,in my opinion, completely set at rest by the 8th sub-section of s. 129A. Thissub-section, as already set out, says that 'nothing in this section shallpreclude the fact that the person accused of an offence has consumed an intoxicantfrom being proved otherwise that in accordance with the provisions of thissection.' It is important to note at once that the legislature did not inthis sub-section say 'that nothing in this section shall preclude the factof the alcoholic content of the blood of the person from being proved otherwisethan in accordance with the provisions of this section.' This omissioncannot but be held to be deliberate.
46. The operative portion of the section deals, as has already been pointedout earlier, with two distinct matters - one as regards the medical examinationof a person's body for the purpose of establishing that he has consumed anintoxicant and the other as regards the testing of his blood for determiningthe percentage of alcohol therein. As regards the first of these purposes the8th sub-section makes a clear provision that the section shall not have theeffect of excluding any other mode of proof. In other words, the fact that aperson has consumed an intoxicant may be proved by evidence other than what ismade available under the provisions of this section. As regards the otherpurpose, viz., the determination of the percentage of alcohol in the blood nosuch saving clause is enacted. In my opinion, this an eminent case for theapplication of the principle expressio unius, exclusio alterius and that theexpression of the legislature's intention that the provisions of the sectionshall not preclude the fact of consumption of an intoxicant being proved byother modes justifies a conclusion that the legislature's intention was thatthe section shall preclude the fact that the person had a particular percentageof alcohol in his blood from being proved otherwise than in accordance with theprovisions of section.
47. It appears clear to me, on a consideration of s. 66(2) together with s.129A that having conferred on the prosecution the benefit in s. 66(2) that ifthe alcoholic percentage of an accused person's blood is proved to be not lessthan 0.05 the accused would be presumed to be guilty of an offence under s.66 unless he proves to the contrary, the legislature at the same time isintended that this fact can be proved only by evidence obtained in the mannerprovided by the same amending Act in the new section 129A. It is for thisreason that while leaving it open to the prosecution to prove the consumptionof an intoxicant by an accused person 'otherwise than in accordance withthe provisions of (s. 129A)' it did not leave it open to the prosecutionto prove the fact of percentage of alcohol in the blood also 'otherwisethan in accordance with the provisions of this section.'
48. In coming to this conclusion I have not overlooked the fact that s. 129Bin providing for certain reports and certificates being used as evidence evenwithout the examination of the person who prepared the report or gave thecertificate, has mentioned in clause (b) a report by a registered medicalpractitioner 'upon any matter or thing duly submitted to him forexamination or analysis and report', outside s. 129A. It was pointed outthat this very fact shows that the legislature contemplated the examination bya registered medical practitioner of a 'any matter or thing', evenapart from s. 129A. The argument is that this can only refer to the examinationof blood for ascertaining its alcoholic content. I am unable to agree that theonly 'matter' or 'thing' that can be submitted to aregistered to medical practitioner for examination or analysis must be theblood of an accused person and the examination can only be for ascertaining thealcoholic percentage.
49. It is worth noticing that nothing is said in this clause as to how the'submission' of the 'thing' has to be proved. One canunderstand the submission of things like, say, some vomit, by an accused personbeing seized by an investigating officer and submitting it to a registeredmedical practitioner for examination or analysis and himself coming to provethe fact of such submission. Where, however, as suggested, the blood of aperson is being submitted to a registered medical practitioner it will beunreasonable to think that anybody except a qualified medical practitionercould have collected the blood. There is no provision in this clause that hisreport in the matter will be available as evidence of the fact stated therein.On the construction suggested by the respondent that 'thing' inclause (b) of s. 129B can only mean blood of the accused person, we shall havethe curious position that while the registered medical practitioner whoexamined the blood need not come into the witness-box to prove that fact andthe result of his examination, the other medical practitioner who actuallycollected the blood will have to come into the witness box to prove that factand his certificate or report will not be evidence of facts stated therein. Incan see...no compelling reason for accepting a construction which will havesuch curious consequences.
50. A question somewhat similar to the one now before us fell to be decidedby the Privy Council in Nazir Ahmad v. The King Emperor (1936) L.R. 63 IndAp372. That question arose in connection with the procedure laid down in theCode of Criminal Procedure for the record of confessions by magistrates. Whiles. 164 of the Code lays down a detailed procedure for recording by magistratesof any confession made in the course of an investigation of a case or at anytime afterwards before the commencement of the enquiry or trial, s. 364 laysdown the procedure that should be followed by a magistrate or by any courtother than a High Court established by a Royal Charter when any accused inexamined. The appellant, (Nazir Ahmad) was convicted mainly, if not entirely,on the strength of a confession said to have been made by him to a magistrateof which evidence was give by the magistrate but which was not recorded by themagistrate in the manner required by s. 164 and s. 364 of the Code. The HighCourt held that this evidence was admissible. In support of that view it wasurged before the Privy Council that the evidence was admissible just because ithas nothing to do with s. 164 or with any record and that by virtue of Sections 17,21 and 24 of the Evidence Act the statement was admissible just as much as itwould be if deposed by a person other than a magistrates. This argument wasrepelled by the Privy Council in these words :-
'On the matter of construction Sections 164 and 364 mustbe looked at and construed together, and it would be an unnatural constructionto hold that any other procedure was permitted than that which is laid downwith such minute particularity in the sections themselves.'
51. Later on their Lordships proceeded thus :-
'It is also to be observed that, if theconstruction contended for by the Crown be correct, all the precautions andsafeguards laid down by Sections 164 and 364 would be of such trifling value as tobe almost idle. Any magistrate of any rank could depose to a confession made bya accused so long as it was not induced by a threat or promise, withoutaffirmatively satisfying himself that it was made voluntarily and withoutshowing or reading to the accused any version of what he was supposed to havesaid, asking for the confession to be vouched by any magistrate. The range ofmagisterial confessions would be so enlarged by this process that theprovisions of s. 164 would almost inevitably be widely disregarded in the samemanner as they were disregarded in the present case.'
52. It appears to me that these considerations which weighed with the PrivyCouncil in rejecting the argument that evidence of confession not recorded inaccordance with the procedure laid down in the Code of Criminal Procedure couldstill be admissible, apply with equal force to our present problem. If evidenceas regards alcoholic content of the blood is allowed to be given even where theprocedure laid down in s. 129A has not been followed to be salutary provisionsof that section would 'almost inevitably be widely disregarded'. Thatthe legislature did not intend this is clear, as I have already pointed outabove, from what it laid down in the 8th sub-section of s. 129A.
53. For all these reasons, I have come to the conclusion that as admittedlythe procedure laid down in s. 129A was not followed for testing of the bloodthat was taken at 6 a.m., the prosecution cannot get the benefit of s. 66(2) ofthe Prohibition Act. There is no justification, therefore, for the order madeby the Sessions Judge, sending the case back to the Magistrate for re-trial inorder to give the prosecution an opportunity of adducing evidence as regardsthe examination of the blood taken at 6 a.m. on April 3, 1961.
54. I would therefore allow the appeal, set aside the order of the HighCourt and also the order of the Sessions Judge directing re-trial and orderthat the appellant be acquitted.
55. BY COURT. In accordance with the opinion of the majority the Appeal isdismissed subject to the modifications mentioned in the Judgment.
56. Appeal dismissed.