A.A. Dave, J.
1. to 8. x x x x x x x.
9. Mr. Bhatt next urged that if blood test rules are not properly followed, no presumption would be raised. He submitted that there is no evidence to show that the Medical Officer who extracted blood had used a sterilised syringe or that he had not applied alcohol or cleaned with sterilised water the skin of the accused before extracting blood. He urged that unless the Medical Officer categorically stated that he had followed all the Rules scrupulously, no presumption could be made that he in fact had followed the rules. He therefore, urged that these rules being mandatory, if they were not followed, no legal presumption could be made under Section 66(2) of the Act. In support of his submission, Mr. Bhatt referred to the case of Vrajlal Damodar v. State of Gujarat (1971) 12 Guj LR 68 wherein at page 69 it was observed as under:
It is, however, essential for the prosecution to prove two requirements prescribed by Rule 4(1) viz., that no alcohol was allowed to touch the body of the person from whom the blood sample was collected and that the phial in which the blood sample was transferred from the syringe contained anticagulant and preservative. In my opinion, these two requirements constitute the essence of Rule 4(1) and are mandatory having regard to the importance of complying with these directions and the nature and the purpose of such requirement. The next question that arises is as to how the prosecution can' establish that the aforesaid requirements were conformed to. It would be sufficient for the doctor to say that he had complied with the requirements and followed the procedure prescribed by Rule 4(1). General evidence of this character can be accepted as adequate to establish that the requirement was conformed to. Or, in the certificate issued by the doctor this fact of having complied with the requirement of rule 4(1) could be incorporated. These are two of the several possible ways of establishing that the rule was complied with. In the present case, the doctor has not been examined. For ought we know he may not have been conscious of the statutory requirement of rule 4(1). The certificate issued by the doctor, Ex. 5 also does not contain 'any statement that the requirement of Rule 4(1) was present in the mind of the doctor who collected the blood sample or that he had complied with any such direction.
There can be no quarrel with the propositions laid down by my learned Brother Thakkar, J., and with respect I am in entire agreement with his observations. But it should be remembered that in the case before him the doctor was not examined and the certificate did not disclose that the doctor had followed the provisions of R. 4(1). In the instant case, the doctor has been examined and the doctor has categorically stated that he extracted 5 c. c. of venuous blood end collected it in a phial as per rules. My learned Brother Thakkar, J., has stated that it would be sufficient for the doctor to say that he had complied with the requirements and followed the procedure prescribed by Rule 4(1). It therefore, fail to understand how this ruling would help the accused. In my opinion, it is not necessary for the doctor to repeat parrot like the provisions contained in Rule 4(1). If the doctor is aware of the provisions contained in the Bombay Blood Test Rules and if the doctor in his evidence before the court says that he had extracted blood as per the rules and if there is no cross-examination to the contrary. It cannot be presumed that the doctor had not followed the mandatory provisions contained in Blood Test Rules particularly Rule 4(1). Similarly the other case referred to by Mr. Bhatt would not help him. In the case of Malahavarao Bhagwandas Kharade v. State of Gujarat (1971) 12 Guj LR 956 : 1971 Cri LJ 1626 it was observed that
the presumption under Section 66(2) of the Bombay Prohibition Act cannot be drawn unless the mandatory provisions of Rules 4 and 5 of the rules have been scrupulously followed. The legislature must have in its wisdom provided the period of seven days for the blood sample to reach the testing authority with a view to see that there may not be any tampering with the blood sample collected or that the alcohol contents of the sample of blood may not increase if it was kept in possession of the medical officer or his subordinate for an unduly long period.
With respect I agree with the observations made therein. In the instant case, as already observed earlier, the medical officer who extracted blood was examined and he has stated that he had extracted the blood and collected it in a phial as per rules. Therefore, whatever provisions are contained in these rules were followed by him. It is not necessary for him to enumerate the rules in seriatim in his examination before the Court. So far as the second objection taken in the case of Malahavarao Bhagwandas Kharade would not be applicable in the present case because the blood sample was sent, to the C. A. on the same day. There was no delay on the part of the medical officer in sending the phial to him. In my opinion, therefore, both the rulings referred by Mr. Bhatt cannot help him.
10 to 12. xx xx xx