M.P. Thakkar, J.
1. The appellant who has been convicted for the offence of being found drunk under Section 66(b) of the Bombay Prohibition Act has challenged the order of conviction and sentence passed by the learned City Magistrate, 7th Court, Ahmedabad on April 11, 1968 on the ground that the prosecution has failed to establish that the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, hereinafter referred to as 'the Rules' have been complied with. On September 12, 1967 at about 3-15 a.m. when the appellant was in Manekchowk he was placed under arrest for being found drunk without being in possession of a permit for consuming liquor. P.W. 1 Kalekhan Sherkhan testified that upon receiving some information when he was on duty at about 3-15 a.m. he had proceeded to Manekchowk and had found the appellant in a drunken condition. Panchas were called, the Panchnama was made, and the appellant was sent to the Civil Hospital for being examined by a doctor. In the present case no doctor has been examined to show as to what he did when the appellant was brought to him. The certificate of the doctor is produced at Exh. 5 but it does not throw any light on the question as to what formalities were observed by the doctor and as regards the steps taken by him. Rule 4(1) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 enjoins 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 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 blood from the body of the person. He shall withdraw not less than 5 c.c. of venous Wood 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 and the phial shall then be shaken vigorously to dissolve the anticoagulant 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.
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 in the blood sample and the sample was properly sealed so that there was guarantee that the chemical analysis made by the Chemical Examiner could be effectively and meaningfully made and the identity of the blood 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. 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 anticoagulant 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, Exh. 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. Under the circumstances, it is not possible to hold that the requirement of Rule 4(1) had been observed by the doctor who collected the blood sample. The learned Assistant Government Pleader argued that a presumption under Section 114(e) of the Indian Evidence Act could be raised in favour of the prosecution for holding that the doctor had performed his duty in the regular manner it being his official act. It is no doubt true that Section 114(e) enables the Court to presume that judicial and official acts have been regularly performed. In my opinion, however, it would be inappropriate to resort to Section 114(e) for raising any such presumption. It cannot be presumed that the doctor was conscious and aware of the requirement of Rule 4(1). Nor can it be presumed that he considered it to be a mandatory requirement. Drawing a sample in a particular manner cannot be said to be an official act though drawing the sample itself is a part of his duty. There cannot be any presumption that the doctor had before his mind's eye the requirements of Rule 4(1) and that he had complied with the said requirements in substance. In my opinion, therefore, Section 114(e) of the Indian Evidence Act is of no avail to the prosecution. In the result, the conclusion is inevitable that the prosecution has failed to establish that the blood sample was collected by the doctor in conformity with the mandatory directions enjoined by Rule 4(1). Besides, even the requirement of Rule 5 with regard to the sending of the facsimile does not seem to have been complied with in the present case because there is a remark in Exh. 7 to the effect that 'no copy sent'. In the result, therefore, it is not possible to sustain the order of conviction and sentence passed by the learned City Magistrate.
The appeal is, therefore, allowed. The appellant is acquitted. The order of conviction and sentence is set aside. The bail bond shall stand cancelled. Fine if paid shall be refunded.