N.G. Shelat, J.
* * * * *
4. Mr. Thakore, the learned advocate for the appellant, has raised two points: The first point relates to the order of conviction passed against the appellant in respect of an offence under Section 66(1)(b) of the Act. According to him apart from the main procedure having not been followed by Dr. Talati as required under the Rules before sending the phial containing blood of the accused to the Chemical Analyser at Junagadh, he drew pointed attention to one breach said to have been committed in respect of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. The latter part of Rule 4 provides that the phial containing the blood of the accused shall be labelled and its cap sealed by means of sealing-wax with the official seal or the monogram of the registered medical practitioner and then as provided in Sub-rule (2) of Rule 4 of the Rules, the same 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. Then comes the more important part of the rule and that is, that 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. This, according to Mr. Thakore, was not complied with by Dr. Talati inasmuch as on the record of the case we find no such letter in Form 'B' wherein a facsimile of the seal affixed by Dr. Talati on the phial of blood sent to the Chemical Analyser at Junagadh through the police officer. The other point raised by him relates to the offence under Section 85(1)(l) of the Act. According to him the evidence falls far short of establishing the fact about the accused being found on a public road as alleged by the prosecution.
5. Now it is clear that in order to establish the guilt of the accused for an offence under Section 66(1)(b) of the Act, the prosecution mainly relies on a report received from the, Chemical Examiner in respect of the blood of the accused taken by Dr. Talati on the date of the offence and then sent for examination to the Chemical Examiner at Junagadh through the police officer. When that is so, the point raised by Mr. Thakora assumes considerable importance as the guilt or otherwise of the accused will have to be determined on the strength of the report produced at Ext. 7 in the case. In that event, presumption of his guilt arises under Section 66(2) of the Act and since his explanation is disbelieved, he would be liable under Section 66(1)(b) of the Act. We have, therefore, to turn to the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, hereinafter to be referred to as 'the Rules' and find out as to whether the requirements contemplated in Rule 4 are of a mandatory character and a breach thereof would affect the evidence contained in the report produced by the Chemical Examiner. Such a point arose in a case of Karansingh Balubha v. State of Gujarat 8 Guj LR 31 : : AIR1967Guj219 , where it was held that if the prosecution relies solely on the report of the Chemical Analyser to prove the fact of concentration of blood which had been collected and sent to the Chemical Analyser in the course of an investigation of an offence under the Bombay Prohibition Act, such, certificate could be evidence only if the certificate had been obtained in the prescribed manner as laid down in Section 129A of the Act. Then it was held that Section 129A, Clause (2) of the Bombay Prohibition Act, 1949, casts a duty on the registered medical practitioner before whom such a person was produced in the course of the investigation to examine such a person and collect and forward in the prescribed manner the blood of such person, and on the Chemical Analyser to certify the result of the test of the blood forwarded to him stating the percentage of alcohol and such other particulars. Rules 4 and 5 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, which lay down the manner of collection and forwarding of blood, are mandatory provisions. The Legislature had advisedly required the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter so that there might not be any scope of tampering with the sample phial. If that safeguard was disregarded and the sample phial was handed over to the investigating officer himself, this salutary safeguard would be completely set at naught. In those circumstances, the Court held in that case that the prosecution having not led any other evidence to prove the fact of concentration of the blood, no presumption could be drawn under Section 66(2) of the Act and it was not for the accused to rebut the burden raised by the presumption. On the basis of this decision, it can be said that the Rules 4 and 5 are of a mandatory character and in the present case since the phial containing blood of the accused was sent by Dr. Talati through the investigating officer himself, namely, the complainant, head constable, the salutary safeguard providing for the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter has been completely disregarded.
6. Apart from that, more important aspect of the case is that while Dr. Talati sent the phial containing the blood of the accused, the letter said to have been forwarded by him is not in the Form 'B' which requires to bear a facsimile of the seal or monogram used for sealing the phial of the sample blood. That safeguard as been for the obvious purpose of enabling the Chemical Analyser to ascertain that the phial of blood of the accused which reached him through the police officer bore exactly the same seal as the facsimile of the seal sent to him. With such a facsimile of the seal he would be able to compare the seal on the phial of the blood and in absence of any such thing in the letter sent by Dr. Talati, he can be said to have disregarded the mandatory requirement for the safeguard provided in Sub-rule (2) of Rule 4 of the Rules. Mr. Mehta, the learned Assistant Govt. Pleader, tried to point out from the judgment of the Court that the phial was accompanied by a forwarding; letter, Ext. 12 signed by Dr. Talati. The judgment then proceeds to show that Ext. 12 also bore a facsimile of the seal used for sealing the phial. We, therefore, looked for Ext. 12 into the original papers and all that we find is that not only it is not in Form) 'B' as required in the Rules but all that it contains is a certificate that the blood sent to him for estimation of alcohol was drawn from Dalsukh in the presence of head constable, the complainant, at 4-15 p.m. on 3.2.1965. It bears the signature of Dr. Talati as also the signature of some witness. The other part of the form has not been, filled up and it bears no signature. This certificate Ext. 12 does not show a facsimile-of the seal said to have been used by Dr. Talati on the phial containing the blood, of the accused. That part of the statement in the judgment appears to be, therefore, incorrect. As I said above, no such Form 'B' has been at all filled in as required under Rule 4, Sub-rule (2) of the Rules and1 that has been a complete disregard of the mandatory rules made under the Act. The same view has been taken by me in Criminal Revn. Appln. No. 419 of 1965, D/-17.1.1967 (Guj.). It follows therefrom that the Chemical Analyser had no opportunity to compare the seal found on the phial said to be containing the blood of the accused. One cannot consequently put any such reliance on the report from the Chemical Analyser in that respect. What that is so, the prosecution can be easily said to have failed to raise any presumption arising under Section 66(2) or the Act and consequently the order of conviction passed against the accused in that respect is liable to be set aside.
* * * * *
8. In the result, the appeal is allowed. The order of conviction and sentence passed against the accused-appellant is set aside. The accused is acquitted. Fine, if paid, is directed to be refunded to him.