Skip to content


Chamanbhai Gangaram Vankar Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1984CriLJ1881
AppellantChamanbhai Gangaram Vankar
RespondentThe State of Gujarat
Cases ReferredKaransingh v. State
Excerpt:
- - it is on the basis of the aforesaid report that the learned magistrate convicted the applicant of the offence under section 66(1)(b) as well as under section 85(1)(3) of the prohibition act read with section 110 of the bombay police act, 1951. the applicant was sentenced to suffer r. the aforesaid provisions of the rule when read in the light of the provisions of section 129a(1) and (2), leave no room for doubt that various procedural safeguards have been advisedly provided for with a view to ensuring safe custody and conveyance of the collected blood sample for its ultimate examination and testing by the chemical analyser. if such a person acts under rule 4(1) and extracts blood from the vein of the accused and collects it in the phial he can very well utilise the official seal of.....s.b. majmudar, j.1. the question posed for consideration of the full bench pertains to the correct interpretation of the words 'official seal of the registered medical practitioner' as employed by rule 4(1) of the bombay prohibition (medical examination blood test) rules, 1959 (hereinafter referred to as 'blood test rules'), framed under section 143(2)(w) of the bombay prohibition act, 1949, (hereinafter referred to as the prohibition act). whether the concerned registered medical practitioner who collects blood from the accused has to use his own seal, if any, or whether he can utilise the official seal of the hospital to which he is attached, is the vexed question which has to be answered on the interpretation of the aforesaid words employed in the last sentence of rule 4 quoted.....
Judgment:

S.B. Majmudar, J.

1. The question posed for consideration of the Full Bench pertains to the correct interpretation of the words 'Official Seal of the registered medical practitioner' as employed by Rule 4(1) of the Bombay Prohibition (Medical Examination Blood Test) Rules, 1959 (hereinafter referred to as 'Blood Test Rules'), framed under Section 143(2)(w) of the Bombay Prohibition Act, 1949, (hereinafter referred to as the Prohibition Act). Whether the concerned registered Medical Practitioner who collects blood from the accused has to use his own seal, if any, or whether he can utilise the official seal of the hospital to which he is attached, is the vexed question which has to be answered on the interpretation of the aforesaid words employed in the last sentence of Rule 4 quoted above.

2. Before we proceed to grapple with the aforesaid question, it would be advantageous to refer to the background facts which has led to the present reference to the Full Bench.

3. The applicant in the present revision application was charged under Section 66(1)(b) and Section 85(1)(3) of the Prohibition Act before the learned J.M.F.C. Kheralu. It was alleged that the applicant was found in a drunken state at about 1.10 p.m. on 30.11.1977 near the panchayat office situated at village Mandhropur in Kheralu taluka of Mehsana district A written report was lodged in that connection by one Chimanbhai Virambhai in Kheralu police station. On the basis of the said report the complainant and other police constables were sent by the police station officer, Kheralu to village Mandhropur. It is alleged that they found the applicant near the panchayat office and he was allegedly smelling of alcohol and was uttering abusive language. A panchnama of his physical condition was made and thereafter the applicant was sent for medical examination to the Government dispensary at Kheralu. Dr. Dave working in the said dispensary examined the applicant and found that the applicant was smelling of alcohol that his gait was steady, his speech was coherent, but he was found to have allegedly consumed liquor. However, he was not found to be under the influence of drink. Thereafter, Dr. Dave collected 5 c.c. of veinous blood of the applicant and adding anticoagulant and preservatives he sent the phial to the Chemical Analyser for blood analysis. The said phial was sealed and the seal mentioning the words 'medico-legal Bombay' was affixed on the phial The Chemical Analyser who examined the blood sample so collected and sent to him issued a report Ex. 14 wherein it was found that alcohol concentration was to the extent of 0rder 1426 per cent being weight in volume of ethyl alcohol. It is on the basis of the aforesaid report that the learned Magistrate convicted the applicant of the offence under Section 66(1)(b) as well as under Section 85(1)(3) of the Prohibition Act read with Section 110 of the Bombay Police Act, 1951. The applicant was sentenced to suffer R.I. for three months for the offence under Section 66(1)(b) and to pay a fine of Rs. 500/-, in default, 30 days' R.I.; while for the offence under Section 85(1)(3), he was sentenced to suffer R.I. for 7 days and to pay a fine of Rs. 25/-in default, 5 days R.I. He was also sentenced to pay Rs. 10/- as fine for the offence under Section 110 of the Bombay Police Act, in default, undergo 3 days' R.I. All the aforesaid sentences were ordered to run concurrently. The applicant carried the matter in appeal to the court of Session at Mehsana being Criminal Appeal No. 123 of 1979. His appeal came to be dismissed on merits, but the sentence for the offence punishable under Section 66(1)(b) was varied by the learned Sessions Judge and instead of the sentence as passed by the learned Magistrate, he reduced the sentence of R.I. to 15 days and fine of Rs. 100/- in default, R.I. for 7 days. Rest of the order relating to the sentence for the offence punishable under Section 85(1)(3) of the Prohibition Act was confirmed Conviction under Section 110 of the Bombay Police Act was, however, altered to conviction under Section 117 of the Bombay Police Act and the sentence of fine of Rs. 10/- in default, R.I. for 3 days was imposed It is in these circumstances that the applicant landed in this Court by way of the present revision application. Initially, A.N. Surti, J. granted bail, pending admission to the applicant, and thereafter, the revision application was admitted to final hearing by Bedarkar, J. and the applicant was continued on the same bait fresh bonds. Thereafter, this revision application reached final hearing before V.V. Bedarkar, J. in October 1980. During the course of arguments before Bedarkar, J., it was urged on behalf of the applicant that the seal affixed by the medical officer of Kheralu Government dispensary was not the official seal of the registered medical practitioner who had extracted blood from the vein of the accused and hence requirements of Rule 4(1) of the Blood Test Rules were not complied with and hence, the sample of blood collected and which was sent for analysis to the chemical analyser was not collected according to rules. Consequently, it was urged the report of the chemical analyst couldnot be relied upon. In support of the aforesaid contention, reliance was placed on an unreported judgment of a Division Bench of this Court consisting of D.P. Desai and M.K. Shah, JJ. in criminal appeal No. 598 of 1975 decided on 24.8.1978 : Reported in 1979 Cri LR 181 (Guj). In the said judgment, amongst others, the Division Bench, speaking through M.K. Shah, J., had found one infirmity in the process of collection of sample of blood from the accused at the S.S.G. Hospital at Baroda, that the seal of the medico-legal department of the hospital was affixed on the blood sample phial and the seal of the registered medical practitioner who had collected the blood was not affixed Accordingly, the seal was not found in conformity with the requirements of the blood test rules. Bedarkar, J. was not inclined to agree with the aforesaid reasoning and the conclusion of the Division Bench and hence, he referred the present revision application to a larger bench. Accordingly, this revision application was placed before a larger bench consisting of A.M. Ahmedi and R.G. Mankad JJ. under the orders of the learned Chief Justice. The aforesaid Division Bench in its turn, vide its order dated 19.12.1980 speaking through Ahmedi, J. referred this matter to a still larger bench as in its view, the question was required to be considered by a larger bench. It is in these circumstances that this revision application has been placed before the present Full Bench.

4. In order to appreciate the contours of controversy posed for our consideration in the present case, it would be advantageous to briefly glance through the relevant statutory provisions holding the field. Chapter IX of the Prohibition Act deals with powers and duties of officers and procedure. In the said chapter is found Section 129A which empowers any prohibition officer or a police officer to require persons accused of offences under the Act to submit to medical examination etc. Sub-section (1) of section 129A provides:

(1) When in the investigation of any offence under this Act, any prohibition officer duly empowered in this behalf by the State Government or any police officer, has reasonable ground for believing that a person has consumed an intoxicant and that for the purpose of establishing that he has consumed an intoxicant or for the procuring of evidence thereof, it is necessary that his body be medically examined or that his blood be collected for being tested for determining the percentage of alcohol therein; such prohibition officer or police officer may produce such person before a registered medical practitioner (authorised by general or special order by the State Government in this behalf) for the purpose of such medical examination or collection of blood and request such registered medical practitioner to furnish a certificate on his finding whether such person has consumed any intoxicant and to forward the blood collected by him 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.

Under Sub-section (2) of Section 129 A, the registered medical practitioner before whom such person has been produced is required to examine such person and collect and forward in the manner prescribed, the blood of such person and furnish to the officer by whom such person has been produced, a certificate in the prescribed form containing result of his examination. The aforesaid provisions indicate that the concerned person who is alleged to have consumed intoxicant has to be produced for the purpose of medical examination before a registered medical practitioner as authorized by general or special order by the State government in this behalf. The term 'registered medical practitioner' has been defined by Section 2(38) of the Act to mean a person who is entitled to practice any system of medicine in the State under any law for the time being in force relating to medical practitioners, and includes registered dentists as defined in the Dentists Act, 1948 and a veterinary practitioner registered under the Bombay Veterinary Practitioners Act, 1953 or under any law corresponding thereto in any part of the State. In view of the aforesaid widely worded definition of the term 'registered medical practitioner' even veterinary doctors would be treated as registered medical practitioners. However, for the purpose of Section 129A, only those registered medical practitioners who are authorized by general or special order of the State Government can medically examine the concerned person who is alleged to have consumed intoxicant and only such registered medical practitioner can collect blood from the concerned persona Thus, not all registered practitioners practising any system of medicine in the State but only authorized registered medical practitioners as per Section 129A can act as medical examiner and can collect blood sample from the concerned accused Under Section 143 of the Prohibition Act, the State Government has been empowered to make rules for the purpose of carrying out provisions of the Act or any other law for the time being in force relating to excise revenue. Sub-section (2) of Section 143 particularizes, without prejudice to the generality of the earlier provision, rule making power of the State Government topic wise. Section 143(2)(w) deals with topics of prescribing the manner of collecting and forwarding blood and prescribing the form of certificates and the other particulars required to be stated therein under Sub-section (2) of Section 129A. Thus, the manner prescribed for medical examination of the concerned accused who is alleged to have consumed intoxicant and the method of collecting his blood sample can be prescribed by rules framed by the State Government in exercise of its power under Section 143(2)(w).

5. So far as authorized registered medical practitioners who can exercise powers under Section 129A and who can medically examine the concerned accused and who can draw sample of blood from his vein for the purpose of getting in tested by chemical examiner, are concerned, the then State of Bombay, as per Government notification No. G.R.R.D. No. BPA.1059/ 40722(e), dated 1.4.1959 published in the Bombay Government gazette, part IV-B, 1959, page 551, had authorized all registered medical practitioners in charge of, or serving at, any allopathic hospitals or dispensaries maintained by the State Government in the State of Bombay to act as registered medical practitioners, for the purposes of Sub-section (1) of Section 129A. By another notification No. G.O.P.D. No. BPA-1059/40722(0) of even date, published in the very same gazette on the same page, the Government of Bombay also authorized all female registered medical practitioners in charge of, or serving at, any allopathic hospitals or dispensaries maintained by the State Government in the State of Bombay to act as registered medical practitioners for the purposes of Sub-section (4) of Section 129A The aforesaid provisions deal with medical examination of female accused After bifurcation of the bigger bilingual State of Bombay and formation of the State of Gujarat, the aforesaid notifications were supplemented by two other notifications. So far as authorized registered medical practitioners referred to in Section 129A(1) were concerned, their ranks were swelled by Government notification G.O.E. and L.D. No. GH-SH-1018-BPA-1064-72270-DH, dated 15.12.1964 published in the Gujarat Government Gazette, part IV-B 1965, page 1. As per the said notification, it was provided that in exercise of the power conferred by Sub-section (10) of Section 129A, the Government of Gujarat authorized all registered medical practitioners in charge of or serving at any allopathic hospitals or dispensaries maintained by the municipalities or the panchayats in the State of Gujarat, as authorized registered medical practitioners fbr the purpose of Sub-section (1) of Section 129A. While so far as, female authorized medical practitioners referred to in Sub-section (4) of Section 129A were concerned, additions were made in their ranks by authorizing all female registered medical practitioners in charge of or serving at any allopathic hospitals or dispensaries maintained by municipalities or panchayats in the State of Gujarat, to act as registered medical practitioners for the purpose of Section 129(4) of the Prohibition Act. The concerned notification was G.I.E. and L.D. No. GHSH/1019/BPA-1064/72720(A)-DH, dated 14.12.1964 published in the Gujarat Government gazette, part IV-B, 1964, page 987.

6. Mr. Vin for the opponent-State stated on instructions that the aforesaid are the relevant four notifications which hold the field till today.

7. As seen earlier, under Section 129A(2), the concerned authorized registered medical practitioner has to examine the person concerned and to collect blood from him and forward it for the purpose of analysis to the chemical analyser in the manner prescribed. As per Section 2(34) of the Act the term 'prescribed' is defined to mean prescribed by the rules, orders or regulations under the Act In exercise of the statutory powers under Section 143(2)(w) to which a reference was made by us a little while ago, the then State of Bombay had framed rules called Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. The said rules have continued to operate even after the formation of the State of Gujarat and have remained in force all throughout Rule 2 is the dictionary clause of the said rules. Sub-rule (4) of Rule 2 defines 'registered medical practitioner' to mean any registered medical practitioner authorized by general or special order by the State Government under Sub-section (1) or Sub-section (4) of Section 129A of the Act As per Rule 3 of the rules, a registered medical practitioner before whom a person is produced under Sub-section (1) of Section 129A of the Act by a police officer or a prohibition officer for the purpose of medical examination of such person or collection of his blood, shall examine such person and, if he deems necessary, collect and forward in the manner prescribed in these rules, the blood of such person, and furnish to the officer by whom such person was produced a certificate in form A containing the result of his examination and shall keep a copy of such certificate on his record. Then follows Rule 4 which is required to be extracted in full as under:

(1) 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 sterilized by putting it in the boiling 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 blood from the body of the person. He shall withdraw not less than 5 c.c of veinous blood in the syringe from the body of the person. The blood collected in the syringe shall then be transferred into a phial containing anti coagulant and preservatives and the phial shall then be shaken vigorously to dissolve the anti coagulant and preservative in the blood The phial shall be labelled and its cap sealed by means of sealing was with the official seal or the monogram of the registered medical practitioner.

(2) The sample blood collected in the phial in the manner stated in Sub-rule (1) shall be forwarded for test to the Testing Officer either by post or with a special messenger so as to reach him within seven days from the date of its collection. It shall be accompanied by a forwarding letter in form B which shall bear a facsimile of the seal or monogram used for sealing of the sample blood.

Sub-rule (1) of Rule 4 indicates various stages by which authorized registered medical practitioner has to arrange to extract blood from the vein of the concerned accused. In the present reference, we are concerned with the last stage of the said exercise. After the blood from the concerned person is extracted and collected in the phial, the phial is required to be sealed by means of sealing was and having done so, the concerned registered medical practitioner who draws this blood sample had to affix the official seal or monogram. Such official seal or monogram is required to be that of the registered medical practitioner, meaning thereby, of the medical officer who draws blood of the concerned accused and collects it in the phial Form B annexed to the rules prescribes the statutory form of the forwarding letter addressed to the testing officer and issued under the signature of the concerned registered medical practitioner. Designation of the registered medical practitioner has also to be mentioned along with his signature at the right hand side bottom of the forwarding letter; while on the left hand side bottom, is reserved the space for affixing facsimile of the seal or monogram ' used for sealing the phial containing blood. The aforesaid provisions of the rule when read in the light of the provisions of Section 129A(1) and (2), leave no room for doubt that various procedural safeguards have been advisedly provided for with a view to ensuring safe custody and conveyance of the collected blood sample for its ultimate examination and testing by the chemical analyser. The medical officer who examines the concerned accused and who is charged with the duty of collecting blood sample has to see to it that the collected blood sample is property preserved in the phial and the concerned phial is so sealed that it might avoid all possibilities of pilferage or tampering with such phial Label of the phial and the sealing of its cap by sealing was will ensure that the blood collected from the concerned accused safely reaches the table of the chemical analyser for analysis and the analysis would be of the blood of the accused and of no one else. In order to ensure further authenticity in that connection and to insulate the collected blood sample from any remotest possibility of being tampered with on way during its transit from the place of collection of blood to its ultimate destination laboratory of the chemical analyser, a further provision is made by Rule 4 that the concerned registered medical practitioner who collects sample of blood from the vein of the accused, has to affix' his official seal or monogram on the sealed phial Facsimile of such seal or monogram has also to be sent by the concerned registered medical practitioner collecting blood sample along with the forwarding letter addressed to the testing officer. This procedure enables the testing officer to compare the facsimile of the seal or monogram with the seal or monogram affixed on the phial containing the blood sample when it reaches his end. When this seal or monogram is found to be in tatted and it tallies with the facsimile of the seal or monogram as affixed in the forwarding letter, authenticity of the collected blood sample would become safely established. Under these circumstances, it has to be observed that putting of the official seal or monogram of the registered medical practitioner on the sample of collected blood at his end is a very vital requirement of the rule and it insulates against all possibility of the sample getting pilfered or tampered with during transit It may be profitable to have a look at the dictionary meaning of the words' of facial and sear as these words are not defined either by the rules or by the Act As per Shorter Oxford Dictionary, the term 'official' is stated to mean 'of an office or of the tenure of an office properly authorized; and as noun-person holding public office or engaged in official duty'; while the term sear is stated to mean ' piece of was, lead or other such material impressed with device and attached in some way to document or to envelope or to any receptacle such as box or room or house to prevent its being opened; etc.' Thus, the term official sear would mean seal pertaining to the office of the concerned person using the seal It is obvious that if the concerned person is holding any office and he has got official seal pertaining to his office, it would be his official seal, but if there is no such official seal, his personal seal if any mentioning his designation would also be his official seal.

8. It is in this background of the aforesaid provisions that we have to consider the moot question posed for our consideration. The term 'official seal' or monogram of the registered medical practitioner as employed in the last sentence of Rule 4(1) necessarily seeks to connect the concerned authorized registered medical practitioner who draws the blood from the vein of the accused with the phial in which collected blood is preserved and despatched for medical testing at the laboratory of the chemical analyser. We have already seen the relevant Government notifications issued under Section 129A(1) and (4) authorizing a fixed category of registered medical practitioners to act as authorized registered medical practitioners for the purpose of medical examination of and collection of blood samples from the concerned accused who are alleged to have consumed intoxicants. We have already seen that however widely worded is the definition of the term 'registered medical practitioner' in Section 2(38) of the Act, only a limited class of registered medical practitioners can act as authorized registered medical practitioners for the purposes of Section 129A. The earlier noted four Government notifications indicate that only those registered medical practitioners both male and female who are either in charge of or serving at any allopathic hospitals or dispensaries maintained by the State Government or who are in charge of or are serving at any such hospitals or dispensaries maintained by municipalities or panchayats in the State, can act as authorized registered medical practitioners for the purposes of Section 129A(1) and (4). It is, therefore, obvious that private registered medical practitioners, however, thumping may be their private practice as allopathic doctors or as doctors practising in other systems of medicine cannot act as authorized registered medical practitioners for the aforesaid purpose. It is also trite to observe that all registered medical practitioners who are in charge of or who are attached to allopathic hospitals or dispensaries maintained by the State Government, municipalities or panchayats may or may not have their own official seals. As per example, a medical officer serving at the Civil Hospital at Ahmedabad can be treated as an authorized registered medical officer for the purpose of Section 129A(1) in the light of the aforesaid Government notifications. If he draws blood from the vein of the accused brought to him for medical examination and collects it in the phial and gets it sealed as per Rule 4(1) he will have to decide about affixing of the official seal or monogram on the phial for the purpose of complying with the relevant procedural requirements of Rule 4(1). However, as he is not in charge of the hospital, it is obvious that official seal of the hospital would not be in his custody. In these circumstances, his official seal can be his own personal seal if any which would be in his custody. He can affix such a seal on the phial or if he has no such seal of his own, he can affix his monogram. That would be sufficient compliance with the requirements of Rule 4(1). But if the concerned authorized medical practitioner who draws blood from the vein of the accused is himself in charge of the concerned allopathic hospital or dispensary maintained by the State Government or municipality or the panchayat, as the case may be, the official seal of the hospital or dispensary would be in his custody and in his charge as he is in charge of the said hospital or dispensary. In these circumstances, he can affix the seal of the hospital which is his official seal as doctor in charge of the hospital or dispensary, on the phial or alternatively, he may affix his own monogram on the phial. That would also be proper compliance with the provisions of Rule 4(1). In short, the concerned authorized registered medical practitioner who collects blood can utilise the official seal of the hospital for the purpose of affixing it on the phial of collected blood if he or she is in charge of the concerned hospital or dispensary. But if the concerned authorized registered medical practitioner is one who is not in charge of such a hospital or dispensary, he or she cannot utilise the official seal of the hospital as in his or her case, such official seal would not be the official seal of the concerned medical practitioner and in that case, the concerned medical officer has to use his or her personal seal if any, or in the alternative, to affix his or her monogram on the phial of collected blood sample. The underlying idea behind the provision for affixing official seal or monogram of the concerned registered medical practitioner on the phial of the collected blood sample seems to be that only that seal or monogram which is under the sole charge or custody of the authorized medical practitioner drawing blood and collecting the sample should be utilised for that purpose with a view to seeing that no one else may misuse such seal or monogram and only genuinely collected and authentic blood sample can get tested by the chemical analyser free from any possibility of misuse, tempering or substitution thereof. It is easy to visualise that the medical officer in charge of hospital or dispensary would be in the custody of the official seal of the hospital which would not be accessible to any one else. If such a person acts under Rule 4(1) and extracts blood from the vein of the accused and collects it in the phial he can very well utilise the official seal of the hospital for the purpose of affixing it on the said phial No other medical officer or any other staff member working in hospital or dispensary or even a third party would. have any access to such a seal which would be in the safe custody of the medical officer in charge, and consequently affixing of such an official seal of the hospital by doctor in charge drawing the sample blood would fully satisfy the requirements of Rule 4(1). It is equally easy to visualise that if any other medical officer who is attached to the hospital or dispensary or is serving therein acts as authorized medical practitioner under Section 129-A read with Rule 4(1), he would obviously not be in custody of the official seal of the hospital or dispensary but it would be in the custody of the medical officer in charge. In these circumstances, so far as such other medical officer is concerned, he cannot utilise the official seal of the hospital or dispensary for the purpose of Rule 4(1) as that would not be his official seal In his case, his official seal would be his private seal, if any, otherwise, he can affix his monogram on the sample of blood collected by him in the phial

9. Before parting with the consideration of the aforesaid provisions, we must observe that the necessity of using the official seal of the concerned medical practitioner collecting blood sample springs from the fact that utilization of any other seal of the hospital which is not in his charge and safe custody would not rule out the possibility of misuse of such seal It is only the use of the seal which is within the safe personal custody of the concerned medical practitioner that can insulate against such possible misuse and thereby the concerned medical practitioner using such seal can remain answerable for its proper use or otherwise. It cannot be said that the aforesaid interpretation of the words 'official seal' or monogram of the registered medical practitioner as employed by Rule 4(1) is in any way technical or hyper-technical. If the concerned doctors serving in the hospital have not got their personal seals and if the hospital seals cannot be treated to be their official seals as they are not in charge of the hospital, it is not the requirement of Rule 4(1) that they cannot utilise their monograms. On the contrary, in such cases, the concerned doctors can very well utilise their own monograms without being forced to have their own seals. Only if they have got their own personal seals, they can conveniently utilise the same. Under these circumstances, the working of Rule 4(1) is not likely to cause any undue hardship or inconvenience to any concerned registered medical practitioner drawing blood sample of the accused for analysis as per Rule 4(11.

10. The aforesaid discussion yields the following resultant categories of cases:

(i) If the authorized registered medical practitioner who collects the blood sample is in charge of the concerned hospital or dispensary, he can utilise the official seal of the hospital or dispensary for getting it affixed on the phial of collected blood sample. That would be considered to be his official seal;

(ii) If the authorized registered medical practitioner who collects the blood sample in the phial as per Rule 4(1), is not in charge of the hospital or dispensary, his official seal for the purpose of its affixation on the phial as Rule 4(1) would be his personal seal if any, and if there is no such seal, he can utilise his monogram for the purpose;

(iii) Any authorized registered medical practitioner who is either a doctor in charge or any other medical practitioner attached to or serving in the hospital or dispensary can in his or her discretion utilise his or her monogram for the purpose of affixing it on the sealed phial even if there is available for the purpose an official seal of the hospital or his own personal seal as the case may be.

11. It is in the light of the aforesaid discussion that we now proceed to consider various decisions which were brought to our notice. In the case of Vrajlal Damodar v. State (1971) 12 Guj LR 68, MR Thakkar, J. (as he then was) had an occasion to consider provisions of Rule 4(1) of the Rules. Having extracted Rule 4, the learned Judge observed at page 69:

That the requirement of the rule is mandatory is obvious. The discernible purpose of the rule is to ensure that the blood sample collected by the medical practitioner is collected in such a manner that no alcohol is introduced in the blood sample in the process of collecting the blood. If alcohol is allowed to be introduced in the blood sample from extraneous sources at the time of collecting the sample the very purpose of subjecting the blood sample to chemical examination would be rendered nugatory. So also the legislature wanted to ensure that anticoagulant and preservatives were added to the blood sample and the sample was properly sealed so that there was guarantee that the chemical analysis made and the identity of the Mood sample could be ensured. It may be observed that not every direction incorporated in Rule 4(1) can be characterized as mandatory. However, the requirement regarding taking precautions to secure that no alcohol shall be touched at any stage while withdrawing the blood from the body of the person and the requirement regarding dissolving the anticoagulant and preservative in the blood is mandatory in its character. It may not be understood that a literal compliance with every part of the rule should be considered as a mandatory requirement For instance, the rule enjoins that 'the phial then shall be shaken vigorously'. This cannot be said to be a mandatory requirement. It would not be necessary for the prosecution to show that the phial was shaken vigorously. It is also not necessary that the doctor who is examined shall keep before him the text of the rule and should depose to having complied with every small requirement enjoined by the rule and having performed every part of the act in accordance with the procedure prescribed.

The Supreme Court had an occasion to consider the requirements of Rule 4(1) in the case of Kisan v. State of Maharashtra : AIR1979SC1824 . The Bench of the Supreme Court consisting of Section Murtaza Fazal Ali and P.S. Kailasam, JJ. considered the requirements of Rule 4(1) of the Rules and held that the provisions regarding collection of 5 c.c. blood for the purpose of analysis as required by the said rule was not mandatory in character. It was observed that the provisions of Rule 4 are merely directory and not mandatory and if the public analyst opined that the quantity below 5 c.c. was sufficient for the purpose of analyzing the results, then the rule must be deemed to have been substantially complied with. It is obvious that some of the provisions of Rule 4 would be directory while some of them would be mandatory. It is not disputed before us that the provision regarding sealing of the phial in which collected blood is preserved for being despatched to the chemical analyser and the provision regarding affixing of official seal or monogram of the concerned registered medical practitioner collecting such blood is mandatory in 1 character In fact Mr. Via learned Public Prosecutor for the respondent fairly stated that this provision was essential provision and complete compliance with the same was absolutely essential for ensuring safe transit of the collected sample from the precincts of the hospital where it was collected to its ultimate destination the laboratory table of the chemical analyser and that the said provision was mandatory in character.

12. It is now time for us to refer to the decision of the Division Bench of this Court which as per Bedarkar, J. and also as per the referring order of the Division Bench consisting of A.M. Ahmadi and R.C Mankad, JJ., required reconsideration. In Criminal Appeal No. 598 of 1975 decided by a Division Bench consisting of D.P. Desai and M.K. Shah, JJ. on 24.8.1978 and which decision is reported in 1978, Criminal Law Journal 181, M.K. Shah J. speaking for the Division Bench had to consider the question as to whether the order of acquittal as rendered by the learned trial Judge was justified or not M.K. Shah, J, In para 5 of the report, noted two grounds put forward by the learned Advocate for the accused in support of the acquittal Firstly, it was submitted that in that case, there was no evidence led by the prosecution to show that the procedure prescribed by Rule 4 of the Rules was followed On that ground, various infirmities were pointed out in the manner of collection of sample of blood Amongst these, it was submitted that the registered medical practitioner had not stated that the phial in which blood was collected was labelled by him, its cap was sealed by means of sealing was with the official seal or the monogram of the said madical practitioner. The Division Bench, speaking through M.K. Shah, J. in that connection observed: 'If we look to the report of the chemical analyser, which is at Ex. 6, it shows that the sample was sent in a phial bearing the seal of S.S.G. Hospital, M.I.D., Baroda, that means, seal of the medical legal department of the hospital and not the seal of the medical practitioner who had collected the blood'.

This infirmity, in the view of the Division Bench, was enough to support the order of acquittal; Amongst other infirmities a close look at the aforesaid reasoning adopted by the. Division Bench shows that it has flown from the factual background peculiar to that case. In the case before the Division Bench, the authorise1 registered medical practitioner who collected sample of blood for the purpose of analysis was one Dr. Bharat Patel Ex. 4 while sealing the phial he had affixed the seal of Section S.G. Hospital, M.L.D., Baroda and had not utilised his own seal. Now it appears that on the facts which were present before the Division Bench, the concerned registered medical, practitioner who had taken the blood sample did not appear to be the medical officer in charge of the concerned hospital. Under these circumstances, he could not have utilised the seal of the S.S.G. Hospital M.I.D., Baroda as the said seal obviously was not in his charge. In these circumstances, if he utilised such a seal requirements of Rule 4(1) would not be satisfied For satisfying the requirements of Rule 4(1) in the aforesaid facts, Dr. Bharat Patel could have utilised either his own personal seal if any, which could have been treated as his official seal or if he had no such seal he could have utilised his own monogram. But in any view of the matter, simply by utilising seal of the S.S.G. Hospital M.L.D., Baroda, he could not have urged with any emphasis that it was his official seal It is in these circumstances that the Division Bench came to the aforesaid conclusion. In the light of the analysis of various statutory provisions and the requirements of the rule which we have noticed in detail earlier, it is obvious that the aforesaid reasoning of the Division Bench is well sustained on the facts of that case and it cannot be said that the said reasoning reflects any error of law. The case before the Division Bench falls within the second category of cases as indicated by us earlier. In such category of cases, as the concerned registered medical practitioner is not in charge of the hospital he cannot utilise the hospital seal as his official seal In our view, therefore, the ratio of the aforesaid Division Bench judgment is well borne out in the context of the facts of the case before the Division Bench and cannot be faulted on any score.

13. We may, in this connection, refer to another decision of this Court in the case of Mahijibhai Lakhabhai v. State of Gujarat 1981 Cri LR 185. There, M.K. Shah, J. as a single Judge followed the ratio of the Division Bench judgment in the case of Jonsing Gangusing Rajput 1979 Cri LR 181 (Guj)(supra). In Mahijibhai's case (supra), one Dr. Arvind K. Patel had drawn sample of blood from the accused but the seal affixed on the phial in which blood was collected was of S.S.G. Hospital, M.L.D., Baroda. It is in these circumstances that M.K. Shah, J. held that the affixing seal of the S.S.G. Hospital, M.L.D., Baroda and not the seal of the registered medical practitioner who had collected the blood was a serious infirmity showing that the procedure of mandatory nature as prescribed by Rule 4(1) was not followed. As this decision falls in line with and follows the ratio of the Division Bench judgment in 1979 Cri LR 181 (supra), which we have approved, it must be held that this later decision of the learned single Judge in Mahijibhai's case (supra) is also unexceptionable.

14. We may now turn to a later judgment of this Court in the case of State of Gujarat v. Walter Paul Master, 1982 Cri LJ 1324. The Division Bench consisting of A.M Ahmadi and V.V. Bedarkar, JJ. had an occasion to consider this very question. V.V. Badarkar, J. speaking, for the Division Bench noted the facts of the case in para 2 of the report to the effect that the accused was taken to the Civil Hospital, Ahmedabad where medical officer Dr. (Miss) Aruna Madhusudan Joshipura examined him and certified that the accused was not under the influence of alcohol but that he had consumed liquor. The doctor extracted 5 cc. of blood from the vein of the accused for the purpose of analysis. Dr. Joshipura was examined before the trial court She stated in her examination-in-chief that the phial after having been vigorously shaken was labelled and sealed with the seal impression of Government of Gujarat It was also observed that though Dr. Joshipura came with a case that she had used the seal impression of Government of Gujarat, no question was put to her as to whether that was her official seal It was further observed that Dr. Joshipura was a medical officer attached to the Civil Hospital and, therefore, she was not a private registered medical practitioner who would be required to use a monogram. As she was the medical officer in Government Civil Hospital, she would naturally use the official seal. It has been further observed that so far as the word 'seal is concerned, it requires to be the 'official seal' of the registered medical practitioner, and if the official seal is not there, then there should be a monogram of the registered, medical practitioner used, which would be the personal monogram of the medical officer concerned. This eventuality of monogram would arise in the case of a medical practitioner who does not collect blood in his official 'capacity attached to the hospital, or that hospital has no official seal. It has been further observed that if the official seal is there, then the question of using her own monogram, which is attempted to be mentioned as a seal before the Bench would not arise for Miss Joshipura. So, such an argument that even in case of official seal it must contain the monogram of the registered medical practitioner, cannot appeal to us for the simple reason that an official seal stands on a different footing from the monogram of the registered medical practitioner. If that is attempted to be imported then it would be doing violence to the language of Rule 4 of the Blood Test' Rules which distinguishes an official seal from the monogram of a registered medical practitioner. 'It has been further observed:

It has been specifically argued that the seal Government of Gujarat is an official seal of the medical officer. This can really be inferred from the evidence of Dr. Joshipura, because she has applied the seal in consonance with Rule 4 of the Blood Test Rules and the seal showing that it is her official seal i.e. the official seal of the registered medical practitioner and when she has used that practitioner seal it would be presumed that it is her official seal this presumption can be raised under Section 114(e) of the Evidence Act.

therefore, it has been further observed having noted the ratio of the decision in Mahijibhais case (supra) that:

So far as the medical officer in that case is concerned, there is no question of any seal but the requirement of the monogram of a particular registered medical practitioner is necessary, but if the registered medical practitioner uses the official seal then the question of a seal or monogram in the individual name of the registered medical practitioner would never arise. If this aspect is imported in Rule 4, then it would be stretching it far. This would mean that even if the medical practitioner has affixed his official seal or the seal of his office, still however, there would be necessity of his personal monogram in order to have authenticity of the sample of blood sent to the chemical analyser.

So far as the ratio of the aforesaid Division Bench is concerned, we must at once state that on the facts as found before the Division Bench, the seal of' Government of Gujarat' as utilised by Dr. Joshipura who collected the blood sample was not challenged to be not official seal of the doctor on the contrary, it was assumed that 'Government of Gujarat' was the official seal of the doctor who had extracted blood In these circumstances, on facts, requirements of Rule 4(1) were satisfied To that extent, no exception can be taken to the ratio of the aforesaid Division Bench judgment. However, with respect, we do not agree with the observations of the Division Bench as found in para 18 of the report to the following effect:. and if the official seal is not there, then there should be a monogram of the registered medical practitioner used, which would be the personal monogram of the medical officer concerned This eventuality of monogram would arise in the case of a medical practitioner who does not collect blood in his official capacity attached to the hospital of that hospital has no official seal.

It is difficult for us to visualise how the concerned hospital would not have any official seal. As we have noted earlier, authorized medical practitioners who are entitled to collect blood for the purpose of analysis as per Section 129-A would be either medical practitioners in charge of the hospital or dispensary or serving therein. For such hospital, official seal would obviously be there. But for a registered medical practitioner who is not in charge of such hospital or dispensary, there would be no question of his utilizing official seal of the hospital, as his or her official seal In that case, he can have his own personal seal which would be treated as his official seal or he can utilise his monogram. It is not as if that the medical officer not in charge of the hospital cannot have his own personal official seal as assumed by the Division Bench. Similarly, it is not possible for us with respect, to fall in line with the following observations of the Division Bench in para 18 of the report:. if the official seal is there, then the question of her own monogram which is attempted to be mentioned as a seal before us, would not arise. So, such an argument that even in case of official seal, it must contain the monogram of the registered medical practitioner, cannot appeal to us, for the simple reason that an official seal stands on a different footing from the monogram of the registered medical practitioner, if that is attempted to be imported then it would be doing violence to the language of rule 4 of the Blood Test Rules.

As we have already shown earlier in detail, the question of monogram may still survive even if there is an official seal available to the concerned registered medical practitioner as his own seal as use of disjunctive conjunction 'or' used between the expressions official seal' and 'monogram' clearly indicates that it is open to the concerned registered medical practitioner either to utilise the official seal, if any or to utilise his own monogram. It is not as if that the monogram is to be utilised only in case the official seal is not available. With respect, the Division Bench by the aforesaid process of reasoning has practically reduced disjunctive conjunction 'or' to in the alternative, meaning thereby that instead. of words 'official seal or monogram', on the interpretation placed by the Division Bench, the phrase would read 'official seal or failing which monogram'. With respects it is not possible to interpret the phrase in that manner. It is also equally not possible for us to agree with the observations found in para 19 of the report to the following effect:

so far as the medical officer in that case is concerned there is no question of any seal, but the requirement of the monogram of a particular registered medical practitioner is necessary, but if the registered medical practitioner uses the official seal then the question of a seal of monogram in the individual name of the registered medical practitioner would never arise. If this aspect is imported in Rule 4, then it would be stretching it too far. This would mean that even if the medical practitioner has affixed his official seal or the seal of his office, still, however, there would be necessity of his personal monogram in order to have authenticity of the sample of blood sent to the chemical analyser.

With respect, it must be observed that the Division Bench has assumed that wherever there is availability of official seal monogram cannot be resorted to at all On the clear language of Rule 4(1), affixing of official seal of the concerned medical officer or his monogram is permitted. Use of either of the two would be good enough. It is not as if that if official seal is not available or not existing, then only, resort to monogram can be had. In fact, there is complete play available to the concerned registered medical practitioner extracting blood either to utilise the official seal if available or not to utilise it even if available and affix, instead, his own monogram on the phial. In either case, there would be due compliance with Rule 4(1). With respect, therefore it is not possible for us to approve that part of the reasoning of the Division Bench when it holds that use of monogram can be resorted to only if the official seal is not available.

15. Before parting with consideration of the aforesaid Division Bench judgment, we may also mention that the concerned four Government notifications issued from time to time under Section 129A(1) and (4) and their import were not brought to the notice of the Division Bench. In these circumstances, it was assumed that the registered medical practitioner who is not attached in his official capacity to any hospital can also collect blood from the accused under Section 129-A(1). In the light of the relevant Government notifications to which we have made a detailed reference earlier, it is impossible to subscribe to the view that even private medical practitioner can collect blood as authorized medical practitioner under Section 129-A(1) or (4). In para 17 of the report, it has been observed that by notification under Section 129-A of the Act, the State Government has authorized eight categories of persons to be the registered medical practitioners for testing blood. No details of these categories are given in the said report. However, the four notifications to which we have made a reference earlier, indicate limited classes of registered medical practitioners who can act as authorized registered medical practitioners for the purpose of Section 129-A and that they would all be attached either to Government hospitals or dispensaries or municipal or panchayat hospitals or dispensaries, being doctors in charge or serving therein.

16. Before closing the discussion, we may also refer to one judgment of this Court in the case of Karansingh v. State : AIR1967Guj219 . J.B. Mehta, J. in that case had an occasion to consider the requirements of Rule 4(1) of the Rules. In the case before the learned single Judge, sample phial was sent to the chemical analyser by the investigating officer and not by the doctor. In these circumstances, it was held that the report of the chemical analyser was not evidence of concentration of blood. J.B. Mehta, J, after having noticed various requirements of Rule 4(1), made the following observations in connection with the requirements of the said rule-

These rules which are made are prescribing the manner of collection and forwarding of 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 within seven days from the date of his collection. The method for collection had been also carefully laid down arid provision is made for a phial containing anticoagulant and preservative so that the blood sample may be properly preserver and there may be no deterioration. further safeguard is kept in Sub-clause (2) that not only the phial is to be sent by post or a special messenger, but the same h 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 shirt 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 letter 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.

These observations clearly flow from the statutory requirements of Rule 4(1). However, they do not touch upon the question which has been posed for our consideration in the present case and hence, we do not dilate on them any further.

17. In view of the aforesaid discussion, we answer the question posed for our consideration by holding that if the concerned authorized registered medical practitioner who draws blood sample is in charge of the concerned hospital or dispensary, he can utilise the official seal of such hospital or dispensary for the purpose of affixing it on the sealed phial which would be his official seal as doctor in charge of the hospital or dispensary or he can utilise his own monogram instead of using such official seal If he is not in charge of such hospital or dispensary, he may either utilise his own personal seal which would be his official seal or failing which or despite such seal being available, he can use his own monogram. All the aforesaid exercises would squarely answer the requirements of Rule 4(1) of the Rules.

18. In the light of the aforesaid decision on the question referred for our consideration, we have to examine the case of the applicant in the present revision application. As the revision application is referred to us as a whole, we proceed to deal with the same on merits instead of referring it back to the learned single Judge. On the facts of this case, it is found that when the appellant accused was produced before the medical officer, Kheralu, he was examined by him and blood from his vein was extracted for the purpose of analysis. Dr. K.J. Dave was examined before the trial court to show how the requirements of Rule 4(1) were complied with by him. He stated in his deposition that on 30.11.1977, the accused was brought to him by the police constable buckle No. 1664 and at that time, he had observed the following physical features:

Pupils dilated.

He was smelling of alcohol.

His gait was steady.

His speech was coherent

He appeared to have consumed alcohol, but he was not under influence of drink. His 5 c.c. blood was extracted and was sent as per the rules to the Chemical Analyser, Junagadh. A certificate was issued to him to that effect He proved it by Ex. 17. He had also sent that certificate under covering letter form B, produced at Ex. 13. He had signed below the same. Fascimile of the seal was also attached to the covering letter. Blood was extracted as per rules. Preservative and anticoagulant were added in the phial In cross-examination, he stated that he had used rubber cork for sealing the phial That phial was also sealed according to the rules. Cork was also sterilized If we turn to the forwarding letter form B at Ex. 13, it is found that it is signed by the aforesaid doctor Dave whose designation is shown to be medical officer, Government Dispensary, Kheralu while facsimile of the seal affixed to the phial reads 'Medico-legal Bombay'. At the bottom of the forwarding letter, is found rubber stamp of Kheralu dispensary outward number and date. Reading the deposition of Dr. Dave along with the contents of the forwarding letter at Ex. 13, it appears that one seal containing the words 'Medico-legal, Bombay' was utilised while sealing the phial containing blood sample of the accused. However, there is nothing in the evidence of Dr. Dave to show that he was acting as the doctor in charge of Kheralu Government dispensary at the relevant time nor has Dr. Dave deposed that the seal mentioning the words 'medico-legal, Bombay' was the official seal of the hospital or his own official seal. If Dr. Dave was in charge of the Government dispensary, Kheralu and if the seal containing the words Medico-legal, Bombay' was the official seal of the dispensary, then the requirements of Rule 4(1) would have been satisfied But in the present case, there is no evidence to even remotely suggest that Dr. Dave was the doctor in charge of the Government dispensary at Kheralu nor has he anything to show that the seal 'medico-legal Bombay' was the official seal of the Kheralu dispensary. Similarly, there is no evidence to suggest that the seal containing the words 'medico-legal Bombay' was the official seal of Dr. Dave who collected the blood sample. Under these circumstances, in the absence of any such evidence, it is impossible to hold that the seal containing the term medico-legal Bombay' was the official seal of the registered medical practitioner. Dr. Dave who extracted blood of the accused and collected the sample for the purpose of analysis. It is also not his case that he had put his own monogram on the sample phial. So, even that part of the requirement of Rule 4(1) in the alternative is also not satisfied in the facts of the present case. Consequently, it must be held that the prosecution has failed to establish that the legal requirements of Rule 4(1) of the Rules were complied with in the present case. As this mandatory requirement is not found to have been complied with in the present case, it must be held that it has introduced a very serious infirmity in the process of collection and despatch of the sample blood for analysis to the Chemical Analyser, Junagadh. Consequently, the contents of the report of the chemical analyser Ex. 14 based on the sample sent to him by the medical officer, Kheralu in sofa as it mentions alcohol content at Order 1426% in the sample blood cannot be of any evidentiary value and cannot be relied upon. Once that conclusion is reached, presumption under Section 66(1)(b) would not be available to the prosecution. Once that presumption goes out of picture, nothing is left with the prosecution to bring home the guilt to the accused. The prosecution has led no evidence to show how independent of that presumption, the accused is shown to have consumed alcohol or other intoxicant as alleged against him. Mere ipso dixit of the doctor in his deposition that the accused was smelling of alcohol is neither here nor there. It was his personal opinion based on no objective data. Even the learned Sessions Judge while dismissing the appeal of the applicant has heavily relied upon the concentration of alcohol in the blood of the accused as found in the report of the chemical analyser and on the basis of the presumption that arises under Section 66(1)(b)(ii), the learned Sessions Judge has found the prosecution case as proved against the accused Once the very basis of this reasoning is knocked off, as seen above, the prosecution case falls through as a pack of cards. Under these circumstances, it must be hide that the prosecution on the facts of the present case, has failed to bring home to the accused the offence with which he was charged under Section 66(1)(b) of the Prohibition Act Once that is done, further question of his being guilty under Section 85(1)(b) of the Bombay Prohibition Act would also fall through as the prosecution has not been able to establish beyond reasonable doubt that the accused had consumed any intoxicant at the relevant time. So far as his conviction under Section 110 read with Section 117 of the Bombay Police Act is concerned the learned Sessions Judge in para 18 of his judgment has found relying on the evidence of panch witness, that the accused was speaking abusive language and that fact is mentioned in the panchnama. That finding is borne out from the relevant evidence on the record. Hence, it cannot be interfered with in this revision application. Consequently, the conviction of the accused under Section 117 of the Bombay Police Act and the sentence of fine of Rs. 10/- in default, S.I. for 3 days shall remain untouched. Under these circumstances, rule issued in the revision application is partially made absolute. Orders of conviction and sentence as passed against the applicant-accused in Criminal Case No. 487 of 1978 by the learned Judicial Magistrate, First Class, Kheralu and as confirmed by the learned Sessions Judge, Mehsana in Criminal Appeal No. 123 of 1979 with modification so far as conviction and sentence for offence under Sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act are concerned, are quashed and set aside and the accused-applicant is acquitted of the said charges levelled against him. His bail bonds shall stand cancelled. Fine, if paid, pursuant to the aforesaid sentences which are set aside, shall be refunded.

P.S. Poti, C.J.

19. While I fully agree with my learned brother Majmudar, J., I wish to add a few words of my owa

20. Ambiguity or absence of precision, particularly in penal statutes may quite often result in many offenders who deserve to be punished escaping such punishment. Whenever, through a judicial decision such ambiguity or absence of precision comes to the notice of the Government it would be a profitable exercise to immediately set itself to the task of clarifying the legislative piece. This would be quite easy if it is a rule that needs such a clarification, for it is for the Government to deal with it and the matter need not go to the Legislature. I am particularly mentioning this here to draw the attention of the Government to the need to deal with Rule 4 of the Bombay Prohibition (Medical Examination Blood Test) Rules, 1959 framed under the statutory powers vested in the State Government under Section 143(2)(w). That rule has been extracted in the judgment of my learned brother Majmudar, J. and therefore there is no need to extract it again here. The controversy which arose in this case concerned only a part of Rule 4(1) which read:

The phial shall be labelled and its cap sealed by means of sealing was with the official seal or the monogram of the registered medical practitioner.

What exactly is the scope of the term 'official seal of the registered medical practitioner' has given room for considerable controversy and perhaps the beneficiaries of this controversy are the accused who would otherwise have been convicted.

21. As pointed out by my learned brother it is not every registered medical practitioner that is authorized to collect and forward blood. As the rule now stands a private medical practitioner has no such authority. The option to seal by means of sealing was with the official seal or the monogram is in the registered medical practitioner. What happens when a hospital has many registered medical practitioners attached to it and all of them treat the hospital seal as official seal of each one of them? Of course it is open to them in the absence of an official seal for themselves to use their monogram. But quite often they may not choose to do so, for it will be more convenient to use the common seal of the hospital and that practice, it is seen from reported cases, is being resorted to. Could it be said that the seal of a Government hospital is the official seal of all the registered medical practitioners working in the hospital so that any one of them can use that seal for the purpose of Rule 4(1)?

22. Whether a rule is mandatory or only directory depends mainly on the object of the rule and the purpose sought to be achieved by the terms of the rule. The fate of an. accused whose blood sample is sent to the Chemical Examiner depends to a large extent upon the report of the Examiner and therefore it is a matter of grave concern for him that the collection of the blood and despatch of it to the Chemical Examiner is done in such a manner that there is no scope for any mistake either in the matter of identity of the sample or preservation of the sample in proper condition. One of the safeguards provided by the rule is that the blood collected by the registered medical practitioner is not to be routinely dealt with. It requires to be dealt with in the manner prescribed including proper sealing of the phial. There should be authenticity for the contents of the phial received by the Chemical Examiner after a period of transit and that authenticity depends to a considerable extent on the comparison by him of the seal on the phial Such comparison is with the fascimile of the seal received by him. This is to ensure against tampering after collection and while in transit. Therefore affixing the seal or the monogram is not an empty formality, but a matter of considerable consequence for the accused The affixing of the seal of the registered medical practitioner (emphasis supplied) or his monogram is a mandatory requirement. If a seal is such that it could be in the possession of any person the fact that one of them affixes the seal is no guarantee of such authenticity, for similar seal could be affixed even after tampering by another who has equal access to the seal. The man who affixes the seal if he is not in control or custody of the seal is not answerable for the use of the same seal by another person. Therefore, when the seal is referred to as of that person it is a seal over which he has exclusive control. That will be the case where a registered medical practitioner is in charge of a hospital which wouldmean that he is responsible for the custody of the seal Where he is not in charge and where he is one of the many registered medical practitioners who serve, if the seal could be used by any of them and after use it is available to be possessed by any other registered medical practitioner, there is no sanctity attached to affixing of the seal and no guarantee against tampering merely because the seal has been affixed This is the point of significance.

23. It would be possible, by a little attention paid to the rule, to modify the rule in such a way that every registered medical practitioner who takes up the responsibility of collecting and forwarding the blood gives authenticity to such collection and forwarding to the Chemical Examiner in an appropriate manner. An early exercise in this behalf by the Government would be worthwhile.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //