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Malahavarao Bhagwandas Kharade Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1971CriLJ1626; (1971)GLR956
AppellantMalahavarao Bhagwandas Kharade
RespondentThe State of Gujarat
Cases ReferredUkha Kolhe v. State of Maharashtra A.I.R.
Excerpt:
.....the sample and that it would not affect the result of the test even if it was despatched later, and therefore, held, in substance, that this part of the rule is directory and, not mandatory in character. he was also of the opinion that the breach complained of in the present case was not such as was likely to affect the result of the test and hence the report of the chemical analyser and his evidence could not be disregarded even if it was held that the provisions of rule 4 (2) of the rules are mandatory in character. if ratio decidendi of ukha koine's pase is looked into, then the certificate of the chemical analyser which was a result of the mandatory provisions of rules 4 and 5 of the rules, particularly the provisions now under consideration, is not valid and the same may as..........and sent it to the chemical analyser for examination on 28th august 1968 by registered post. this blood sample was received by the chemical analyser on 31st august 1968. on examination thereof, he certified that the concentration of alcohol was to the extent of 0.0736 was of alcohol. it was held that the presumption arising under section 66(2) of the bombay prohibition act had not been rebutted.3. one of the contentions raised for the petitioner in the appeal was that the mandatory provisions of rule 4 (2) of the bombay prohibition (medical examination and blood test) rules, 1959 particularly with reference to the sending of the blood sample so as to' reach the chemical analyser within seven days from the date of its collection had not been followed, and that it being a mandatory.....
Judgment:
ORDER

Y.D. Desai, J.

1. This revision petition arises out of conviction of the petitioner Under Section 66(1)(b) of the Bombay Prohibition Act passed by the Judicial Magistrate, First Class, Kalol, in Criminal Case No. 3074 of 1968. This conviction of his came to ' be confirmed by the learned Extra Additional Sessions Judge, Mehsana in Criminal Appeal.No. 53 of 1970.

2. It was alleged against the petitioner that he was found drunk at Kalol on a public road on 21st August .1968 in the evening and that he was found drunk with the result that he was sent to the local Medical Officer for examination. The Medical Officer found that his speech, gait and pupils were normal; but he was found under the influence of alcohol. He extracted his blood that evening at about 10-30 P. M. and sent it to the Chemical Analyser for examination on 28th August 1968 by registered post. This blood sample was received by the Chemical Analyser on 31st August 1968. On examination thereof, he certified that the concentration of alcohol was to the extent of 0.0736 was of alcohol. It was held that the presumption arising Under Section 66(2) of the Bombay Prohibition Act had not been rebutted.

3. One of the contentions raised for the petitioner in the appeal was that the mandatory provisions of Rule 4 (2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 particularly with reference to the sending of the blood sample so as to' reach the Chemical Analyser within seven days from the date of its collection had not been followed, and that it being a mandatory provision, the examination of the blood sample was vitiated and that the Chemical Analyser's certificate was not admissible in evidence, and could not be relied upon for the purposes of convicting the petitioner. The learned Extra. Additional Sessions Judge while considering the rulings in Karansing v. State of Gujarat, : AIR1967Guj219 , Dalsukhji v. State of Gujarat, 1969 Cri LJ 695 (Guj), as also the ruling in Narayan Krishnaji v. State' of Maharashtra, : AIR1967Bom213 was of the opinion that the period of seven days provided under Rule 4 (2) of the rules was prescribed rich a view to avoid- delay in forwarding the sample and that it would not affect the result of the test even if it was despatched later, and therefore, held, in substance, that this part of the rule is directory and, not mandatory in character. He was also of the opinion that the breach complained of in the present case was not such as was likely to affect the result of the test and hence the report of the Chemical Analyser and his evidence could not be disregarded even if it was held that the provisions of Rule 4 (2) of the rules are mandatory in character.

4. One of the additional points raised in the matter by Mr. Barot, the learned advocate for the petitioner is that there was no evidence to show that the mandatory provisions provided in Rule 4 (1) of the rules to the effect that' no alcohol was touched at any stage while withdrawing the blood from 'the body of the person had been followed, and consequently even that mandatory provision had been violated.

5. Rule 4 (2) of the Rules provides-

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.

Admittedly, the blood sample of the petitioner was taken by the Medical Officer on 21st August 1968 at about 10-30 P. M. It was not forwarded to the Testing Officer within eight days and it is clear on the evidence recorded that this blood sample was received by the Chemical Analyser on 31st August 1968. It is, therefore, clear that the sample blood was not so sent so as to reach the Chemical Analyser within a period of seven days from the date of its collection. In this respect Section 129A of the Bombay Prohibition Act provides for power to require persons to submit to medical examination on certain conditions being fulfilled as provided in Sub-section (1) thereof. Sub-section (2) of the section also enjoins upon the registered medical practitioner, before whom an intoxicated person is produced, to examine him and 'collect and forward in the manner prescribed the blood of such person' etc. etc. Therefore, two things are emphasised in this section as being of mandatory character, namely, that the registered medical practitioner is bound to examine the intoxicated person on being referred to for examination by the police officer who has a reasonable ground for believing that the person had consumed an intoxicant and it was necessary that his body be medically examined or that his blood be collected for 'being tested for determining the percentage of alcohol therein. The second thing emphasised in Sub-section (2) is that the blood to be collected and forwarded for examination in the manner prescribed, If this provision is again read with Clause (2) of Rule 4 of the Rules, I have no shadow of doubt that the mandatory provision of Rule 4 has to be scrupulously followed' in collecting and forwarding of the blood sample. It has been contended by the learned Assistant Government Pleader that even if there was delay in sending the blood sample to the testing authority, it was not such as to affect the result of 'the examination, as there is evidence of the Chemical Analyser examined to the effect that the blood sample to which anticoagulant and rjreservative were added would remain fit for test for a pretty long time, and consequently the rule could be held only to be directory and not mandatory in character. In the ruling in Karansingh v. State of Gujarat, : AIR1967Guj219 , the provisions of Br. 4 and 5 of the Rules as also the provisions of Section 129-A(2) have been considered while taking into account the ruling of the Supreme Court in Ukha Kolhe v. State of Maharashtra A.I.R. 1963 SC 1531. I respectfully adopt the reasoning of the learned Judge deciding Karansingh's case, : AIR1967Guj219 . In fact, in Ukha Kolhe's case A.I.R. 1963 SC 1531 it has been laid down as under:

In the investigation of an offence under the Bombay Prohibition Act, examination of a person suspected by a police officer of having consumed an intoxicant, or of his blood may be carried out only in the manner prescribed by Section 129A; and the evidence to prove the facts disclosed thereby will be the certificate or the examination viva voce of the registered medical practitioner, or the Chemical Examiner for examination in the course of an investigation of an offence under the Act of the person so suspected or of his blood has by the clearest implication 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 of investigation of an offence under the Bombay Prohibition Act, otherwise than in the manner set out in Section 129A cannot there- ' fore be used as evidence in the case...

Almost the same is the ratio in the ruling of 1969 Cri LJ 695 (Guj), where it has been held that the provisions of Rules 4 and 5 of the rules are mandatory in character and that where the prosecution solely relies on a report of the Chemical Analyser for blood concentration, 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 are 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. There is no evidence on the record to show in whose possession this phial remained till it was sent to the Chemical Analyser, There is also no evidence about the precautions having been taken to ensure that there was no tampering with the contents of the phial when it was with the medical officer. There is also nothing on the record to show that for a period of eight days this sample was kept in' such a place that it was not liable to deteriorate. It cannot be said with definite certainty that because of the breach of this rule of sending the blood sample to the testing authority so as to reach that authority within seven days, it was not likely to affect the result of the analysis. If ratio decidendi of Ukha Koine's pase is looked into, then the certificate of the Chemical Analyser which was a result of the mandatory provisions of Rules 4 and 5 of the rules, particularly the provisions now under consideration, is not valid and the same may as well become inadmissible in evidence. If that be so, we cannot look into that certificate; nor would the evidence of the Chemical Analyser in any way improve the matter. . In my opinion, the mandatory provisions under consideration have .not been followed in this case.

6. The second objection raised on behalf of the. petitioner must also be upheld and that is in relation to the absence of any evidence of the medical officer to the effect that he used a syringe for the collection of blood, that he sterilized the syringe by putting it in boiling -water before it was used, that he cleaned the syringe with .sterilized water and swabbed the skin surface of that part of such person's body from which he intended to withdraw the blood; and what is more important is that he has not stated that he had not allowed alcohol to touch at any stage while withdrawing the blood from the body of the person. This is equally a mandatory rule, since the per centage of the alcohol is bound to increase if the alcohol was allowed to touch the syringe or any receptacle in which blood was drawn.

7. In these circumstances, I do not consider the third objection raised by Mr. Barot that even if it was held that the petitioner had consumed alcohol the prosecution had yet not discharged the burden of proof which lay on it to show that the alcohol consumed by the petitioner was within the jurisdiction of the Court. In fact, this aspect of the case had never been raised at any stage of the matter; nor has it been pleaded in the memorandum of appeal. The result, therefore, is that this petition is allowed and the conviction of the petitioner is set aside.

8. The petition is allowed and the conviction of the petitioner Under Section 66(1)(b) of the Bombay Prohibition Act confirmed' in Criminal Appeal No, 53 of 1970 is set aside and the petitioner is acquitted of the-above mentioned charge. Fine, if paid, be refunded to the petitioner. Bail bond cancelled.


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