(1) This revision application has been filed by the original accused, dismissing his appeal against his conviction under Section 66(1)(b) of the Bombay Prohibition Act, 1949, hereinafter referred to as `the Act' by the Judicial Magistrate, First Class, Bagasara Wadia and for which he was sentenced to suffer rigorous imprisonment for three months and a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for one month.
(2) The case of the prosecution was that the accused was driving S.T. bus between Bhavnagar and Jamnagar on 27th November, 1963. When the said bus stopped at Babra, the accused and the driver of the motor bus had gone to a house near the bus stand and had consumed illicit liquor there. The driver had thereafter taken the motor bus along the road to Rajkot. The motor bus met with a serious accident in which several persons sitting in the bus were injured and one of them had died. The P.S.O. at Babra Police Station was one Abdulla Nurmahomed. On receiving the information at 3-50 P.M., about this accident, this P.S.O. registered the offence and started investigation. As he learned that the driver of the bus and the accused were drunk, he came to Barbra for that inquiry. As the motor bus driver and the injured persons and the accused had been removed the hospital, the P.S.O. contacted the accused in the hospital. P.S.O. Abdulla found that the accused's mouth was smelling of alcohol, and his speech was incoherent. He called the Panchas and made a panchanama of his condition. Thereafter his blood and urine were collected by the doctor of the hospital for chemical analysis. The P.S.O. registered his complaint at Ex. 8. The doctor had entrusted blood and urine bottle to the P.S.O. who handed it over to the head constable Kashiram Raghavadas who took over the charge from the head constable Abdulla. This P.S.O. Kashiram sent the two sealed bottles of accused's blood and urine to the Chemical Analyser with constable Vamanrao Govindrao. The report of the Chemical Analyser which was sent to the P.S.L. Babra on 16th December 1963 showed that as a result of the analysis carried out on 30th November 1963 the blood concentration was 0.0644% of W/V of ethyl alcohol. From this concentration of alcohol in the blood, the presumption under Section 66(2) was invoked. The accused was charge-sheeted for the offence under Section 66(1)(b) and Section 85 of the Act. The trial Court acquitted the accused of the charge under Section 85(1)(2)(3) of the Act. It however, convicted him for the offence under Section 66(1)(b) of the Act and sentenced him as aforesaid. Against that order the appeal of the accused was dismissed by the Sessions Judge, Amreli. The accused has, therefore, filed the present revision.
(3) Mr. Parikh for the accused stated that in the present case the prosecution had relied upon the certificate of the Chemical Analyser for proving the concentration of blood and on the basis of that report, presumption under Section 66(2) has been drawn against the accused. The prosecution has not tried to prove concentration of blood by any other method. He, therefore, argued that this report would be inadmissible in evidence as the mandatory requirements for collecting and forwarding the sample under S. 129-A and Rule-4 of the Bombay Prohibition Medical examination Blood Test Rules, 1959, hereinafter referred to as `the rules', had not been complied with. Mr. Farukh strongly relied upon the decision of the Supreme Court in Ukha Kolhe v. State of Mahrashtra, AIR 1963 SC 1531. In that case the Supreme Court had interpreted the provisions of Section 66(2), 129A and 129B of the Act. At page 1539 it was held by the Supreme Court that Section 129A was intended primarily to provide for compelling a person reasonably believed by an officer investigating an offence under the Act or by a prohibition officer duly empowered to have consumed liquor, to submit himself to medical examination, and collection of blood. The two conditions which had to be fulfilled before a person was so compelled were: (1) that it must be in the course of investigation of an offence under the Act, and (2) that a prohibition officer duly empowered or a police officer had reasonable grounds for believing that the person had consumed liquor and that for the purpose of establishing that fact or for procuring evidence thereon, it was necessary, that his body be medically examined or his blood be collected. It is only when those two conditions existed that a person could be sent up before registered medical practitioner for medical examination or collection of his blood. By sub-section (2) of Section 129A the registered medical practitioner was obliged to examine a person produced before him and to collect and forward in the manner prescribed blood of such a person and to furnish to the officer a certificate in the prescribed form containing the result of his examination. The Chemical Analyser had then to certify the result of the test of the blood forwarded to him. As sub-section (8) expressly provided that proof of the fact that a person had consumed an intoxicant might be secured in a manner otherwise than as provided in Section 129A and as even Section 129B, Sub-clause (b) clearly provided a report of a medical practitioner in respect of examination of a person or matter or thing duly submitted to him was admissible, it was held that it was open to the prosecution to prove the fact of concentration of alcohol not only by the method provided in Section 129B(A). It was pointed out that if an investigating officer or a prohibition officer duly empowered desired to have a person examined or his blood taken in the course of investigation for an offence under the Act and took steps which were prescribed under Section 129A, in that case the certificate of the registered medical practitioner and the report of the Chemical Analyser on the result of the test of blood forwarded to him would be admissible as evidence in a proceeding under the Act without examining either medical practitioner or the chemical analyser. If, however, blood was collected otherwise than in the condition set out in Section 129A, the fact of concentration of blood could be proved even by the other methods. It was further pointed out at page 1541 that the Legislature had made a certificate of examination under Section 129A sub section (1) & (2) admissible without formal proof, but the adoption of any other method of collection of evidence for proving this fact of concentration of blood was not precluded. Under Section 129B(B) a report of registered medical practitioner could also establish such a fact. It was further pointed out that in a case which was not covered by section 129A the prosecution could also rely upon section 510 of the Code of Criminal Procedure. It was however pointed out finally at page 1542 that to the extent that Section 129-A provided a special machinery in respect of blood collected for the report of the Chemical Analyser in the course of investigation of an offence under the Act an examination of person suspected by police officer or a prohibition officer of having consumed intoxicant or of his blood must be carried out in the manner prescribed by Section 129-A and the evidence to prove the fact disclosed thereby would be the certificate or the examination viva voce of the registered medical practitioner or the Chemical Analyser for examination in the course of investigation under the Act. Examination of the person so suspected or of his blood had been by clearest implication of law to be carried out in the manner laid down or not at all. No doubt before their Lordships, the case was not one of an investigation under the Act and therefore, the report was held to be admissible under Section 510 of the Code.
(4) The ratio which is laid down in this judgment is that if the prosecution relies solely on the report of the Chemical Analyser to prove the fact of concentration of blood which had been collected and sent to the Chemical Analyser in the course of an investigation of an offence under the Act such certificate could be evidence only if the certificate had been obtained in the prescribed manner as laid down in Section 129-A, otherwise it could not be used as evidence in the case. Section 129-A Clause (2) cast a duty on the registered medical practitioner before whom such a person was produced in the course of the investigation to examine such a person and collect and forward in the prescribed manner the blood of such person and the Chemical Analyser had also a duty to certify the result of the test of the blood forwarded to him stating the percentage of alcohol and such other particulars. Rule 4 lays down the manner of collection and forwarding of blood. Rule 4(1) provides that the registered medical practitioner shall use a syringe for the collection of the blood of the person produced before him under rule 3. The syringe shall be sterilised by putting it in boiling water before it is used for the aforesaid purpose. He shall clean with sterilized water and swab the skin surface of that part of such person's body from which he intends to withdraw the blood. No alcohol shall be touched at any stage while withdrawing the blood from the body of the person. He shall withdraw not less than 5 c.c. of venous blood in the syringe from the body of the person. The blood collected in the syringe shall then be transferred into a phial containing anticoagulant and preservative in the blood. The phial shall be labelled and its cap sealed by means of sealing wax with the official seal or the monogram of the registered medical practitioner. Sub-rule (2) then provides that 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. Rule 5 then provides that the testing officer shall, on receipt of the sample blood, test it and shall certify the result of his test in Form `C'. The testing officer shall send the certificate in duplicate to the registered medical practitioner by whom the blood was forwarded to him for test and retain a copy thereof on his record. On receipt of the certificate from the testing officer, the registered medical practitioner shall forward the original copy of the certificate to the police officer or the prohibition officer concerned. These rules which are made are prescribing the manner of collection and forwarding the blood. They secure that the blood which has been collected by an independent doctor is sent under his seal either by post or with a special messenger to the testing officer so as to reach him with in seven days from the date of his collection. The method for collection has been also carefully laid down and provision is made for phial containing anticoagulant and preservative so that the blood sample may be properly preserved and there may be no deterioration. A further safeguard is kept in Sub-clause (2) that not only phial is to be sent by post or a special messenger, but the same is to be accompanied by a forwarding letter in the prescribed Form B which shall bear a facsimile of the seal or monogram used for sealing the phial of the sample blood. An additional safeguard is provided in Rule 5 that after the test is carried out the testing officer has to send a certificate in form `C' to the registered medical practitioner who shall forward the original copy to the concerned police officer or the prohibition officer. The rules which provide for the proper phial containing anticoagulant and preservative are rules made with a view to secure that the sample does not deteriorate. Similarly, the rules for forwarding either by post or by a special messenger of sample phial along with the forwarding letters which would bear the facsimile of the seal or monogram used for sealing the phial of the sample blood are clearly made with a view to secure that no tampering might be done. That is why the entire thing is handed over to the doctor and is not left to the investigating officer. In the present case Mr. Parikh rightly pointed out from the evidence of P.S.O. Abdulla himself that he had learnt that the driver and the accused had been drunk and he had instituted an inquiry and for that purpose he had gone to the hospital and had examined the accused in the presence of the Panchas and had made a panchanama of his condition. It is, therefore, clear that in the course of the investigation for the offence under the Act, the sample of blood and urine had been collected by the doctor. It is also clear from the evidence on record that the doctor did not send the sample phial by post or by a special messenger with any forwarding letter bearing facsimile of the seal used on the sample to P.S.O. Abdulla himself who had handed it over to head constable Kashiram who took charge from him and who had in his turn sent the bottle to the Chemical analyser with constable Vamanrao on 29th November 1963. Thus, the salutary safeguard which had secured the sample phial did not come in the hands of the investigating officer during the course of its despatch from the doctor to the Chemical Analyser has been completely disregarded. Even the forwarding letter which would have established the identity of the sample phial by the similarity of the seals was not produced by the prosecution. Dr. Shah, P.W. 1 had in terms admitted that he had added only anticoagulant 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 the precautions about the preservative had been taken by the doctor. Thus, all the mandatory safeguards which are prescribed for the collection of the blood and despatch of the phial to the Chemical Analyser had been completely disregarded in the present case. It was, therefore, not open to the prosecution to rely on the report of the Chemical Analyser as it had not been obtained after complying with the salutary safeguard laid down under Section 129-A and Rule 4. Such report could not therefore, be treated as evidence in the case.
(5) The learned Government Pleader, however, strongly relied upon the decision of Narayan Krishnaji Marulkar v. State of Maharashtra 65 Bom LR 473: (AIR 1967 Bom 213), by the Division bench consisting of Chainani J. And Naik J., where it was held that the provisions of Rule 4 were directory and not mandatory. The decision of the Supreme Court referred to above had not been considered in that case. It was also made clear in that decision that each case must be considered on its facts and in each case it must be seen whether breach of the rule was such as had or might have affected the result of the test or had otherwise cannot prejudice to the accused. If the breach of the rule was such that it was not likely to affect the test or the result of the analysis, it might be disregarded. On the other hand, if the provision of the rule, which was not complied with, was one which might affect the result of the test or which made it doubtful whether the certificate showed correctly the percentage of alcohol in the blood of the accused person at the time when it was collected, the certificate must be rejected and should not be used as evidence of the facts stated therein. It was, therefore, held that merely because the medical officer had collected the blood of the accused only 3 c.c. instead of 5 c.c., as required by rule 4, the Chemical Analyser's certificate should not be disregarded especially as in that case the prosecution had not relied upon the certificate alone but had examined Mr. Chitale who had himself had examined blood. Even in that case it was held that after about 2-1/2 months after it has been collected, it would be difficult to rely upon the certificate. That decision, however, cannot be apply to the facts of the present case, where the mandatory safeguards which have been provided for addition of the proper preservative and for despatch of the sample phial have been completely disregarded. These provisions in any cast must be held to be mandatory. The legislature had advisedly required the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter so that there might not be any scope of tampering with the sample phial. If that safeguard was disregarded and the sample phial was handed over the investigating officer himself, this salutary safeguard would be completely set at naught. In these circumstances, the report of the Chemical Analyser could not be evidence of the fact of the concentration of the blood. The prosecution having not led any other evidence to prove the fact of concentration of the blood, no presumption could be drawn under Section 66(2) of the Act and it was not for the accused to rebut the burden raised by the presumption. The conviction of the accused under Section 66(1)(b) of the Act must, therefore, be quashed.
(6) In the result, I allow this revision application, set aside the conviction and sentence recorded against the accused and acquit him of the charges levelled against him in so far as the present case is concerned. The bail bonds of the accused to be cancelled. Rule accordingly made absolute.
(7) Petition allowed.