T.U. Mehta, J.
1. The state has preferred this appeal against the order of acquittal passed by the court of the J.M.F.C. Lunawada in Criminal Case No. 559/73 of his file, acquitting the respondent-accused of the offences under Sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act.
2. Short facts of the case are that the respondent-accused is a police constable and was attached at the relevant time to the office of the P.S.I. Lunawada. On 7th February 1973 at 7-30 p.m. the P.S.I. Balkrishna Shan-Karrao, whose deposition appears at ex. 15 called the accused to take his explanation as he was absent on his duty on the night round of 3rd February, 1973. It is said that when the accused appeared before the P.S.I, he was speaking at random and his mouth was smelling of alcohol. A Rojkam of his physical condition was thereupon made as found at ex. 16. The accused was thereafter sent to Dr. Rajbala Kantilal for medical examination. The doctor examined him at 8-45 p.m. on the same day. The doctor found on examination that the breath of the accused was smelling of alcohol but his speech was normal and his gait was steady. The doctor, therefore, opined that the accused had consumed alcohol but was not under its influence the doctor also took sample of the blood of the accused for chemical analysis. She took 5 cc. Of blood from a vein of the accused in a phial containing anticoagulant potassium anxelate. The said phial was received in the office of the Assistant Chemical Analyser, Rameshchandra Nandlal ex. 9, of Junagadh, on 12-2-1973. The sample was analysed by this witness on 15-2-73. On analysis it was found to be containing 0.0759 per cent of w/v. Alcohol. This percentage of alcohol is admittedly more than what 4 contemplated by Section 66(2) of the Act.
3. The accused was thereafter tried and as a result of the trial the learned magistrate, who tried the accused, acquitted him principally on the ground that the prosecution had failed to prove that the accused had consumed alcohol within the territory of the State of Gujarat. For coming to this conclusion the Learned Magistrate has put reliance upon the decision given by this Court in Chhaganji Khengarji v. State Reported in (1970) 11 G.L.R. 573.
4. It is revealed from the record of the case that the blood sample which was examined by the Chemical Analyser was sent in the name of Amersingh Chhotabhai. The name of the accused is Amersingh Chothabhai. The learned Magistrate has, therefore, held that the prosecution has made no attempt to explain this discrepancy in the name of the father of the accused and therefore, even that fact creates doubt as to whether the report of the Chemical Analyser found at ex. 10 is with regard to the blood of this accused or any other person.
5. The first question which arises to be considered in this appeal is whether it can be said from the record of this case that the prosecution has satisfactorily shown that the accused has consumed alcohol within the territory of the State Of Gujarat. The decision given by this Court in Chhaganji Khengarji v. State (supra) does not say anything about the quantum of proof which would be required for proving that the accused has committed offence within the Territory of Gujarat. All that this decision says is that the offence in question can be said to have been committed by the offender, if it is proved that he has consumed liquor in contravention of the provisions of the Act and, therefore, it is necessary for the prosecution to prove that the liquor was consumed within the prohibited area i.e. within the area of Gujarat State. It is further observed in that case that if a person has consumed liquor outside the State of Gujarat where there is no prohibition the offence could not be said to have been committed by that person under the Act. These principles are not and cannot be in dispute but the question is when the prosecution can be said to have proved that a particular accused has committed offence under the prohibition Act within the territory of Gujarat. This question involves a question relating to the necessary quantum of proof. The decision given by this Court in Chhaganjis case does not lay down any principle as to the exact quantum of proof, which would be required to discharge the burden of showing that the offence has been committed within the territory of gujarat state. Therefore, the court has to look to the facts of each case to consider whether, the prosecution has been successful in showing that the offence of consumption of an intoxicant has taken place within this state or not.
6. So far as the facts of the present case are concerned, it is clear that the respondent accused has not pleaded anywhere that he has consumed liquor in a territory which is situated outside the State of Gujarat. The prosecution has come forward with a definite case against the accused that he has consumed liquor within the jurisdiction of the court of the learned magistrate, who has tried this case. The prosecution has further led evidence to show that the accused was present at Lunawada at 8-00 a.m. on 7-2-73 at his house and thereafter at 11.00 a.m. on that very day at the police station at the time of roll call. The prosecution has also shown that at 3.00 p.m. on that day the accused was found going in the Bazar of Lunawada. The learned Magistrate has observed that this evidence would, at the most, show that the accused was present at Lunawada from 8.00 a.m. to 7.30. P.M. on 7-2-73. But, according to the learned Magistrate, this evidence is not sufficient for showing the whereabouts of the accused before 8.00 a.m. on that day. The medical evidence shows that if a person has consumed liquor, alcohol would be found in his blood for 24 hours. In view of this evidence the learned Magistrate has observed that the accused might have consumed liquor before 8.00 a.m. on 7-2-73 in a territory outside the State of Gujarat in this connection, Shri Patel, who appeared in this appeal on behalf of the accused, contended that Lunawada is situated in the vicinity of the border of this state with Madhya Pradesh and, therefore, the possibility of the accused having gone to the area of Madhya Pradesh and having consumed liquor there, cannot be ruled out. In my opinion, this argument is not available to the accused for the simple reason that the accused himself has not pleaded any such case. If the accused had in fact consumed liquor after crossing the border of this state then that fact was specially within his own knowledge. If, inspite of this fact being within his own knowledge, he had not raised any defence on that line, the only presumption which can be drawn is that he has not raised that defence because even according to him, that defence was not available to him. The contention of Shri Patel that Lunawada is situated near the border of this state with the State of Madhya Pradesh involves certain questions of facts. Therefore, unless it is shown from the record of the case that it was possible for the accused to cross the boundaries of both the states and to remain present at his house at 8.00 a.m. on 7-2-73 after consuming liquor in Madhya Pradesh State, the court would not be justified in throwing away the prosecution case simply because the prosecution, which is not supposed to know exactly where the accused has consumed liquor, has not produced specific evidence to show that he consumed liquor within the limits of the State of Gujarat. Even in chhaganjis case, on which reliance is put by the defence, this Court has observed as under:
No doubt, the prosecution will have some difficulties, but the prosecution can bring forward several circumstances which could probabalise that the offence of consuming liquor was committed within the limits of this state, and in that case, the burden will be shifted on the accused to prove that he had really consumed the liquor outside the limits of this state.
In my opinion, in cases where the accused is alleged to have consumed liquor and he does not raise a plea that he has consumed liquor outside the state of gujarat and where there is nothing in the record to show that the accused could have been within the limits of Gujarat State, within a few hours after consuming liquor in an adjoining state, the prosecution can be said to have discharged the burden which it carries to prove that the accused has consumed liquor within the limits of the state of gujarat.
7. I find that the above referred decision given by this Court in Chhaganji's case has been correctly distinguished by Dave J. In C.R.A. No. 431/71 dt. 17th November, 1972 as well as in C.R.A. No. 1125/71 dt. 26th June, 1973. Therein the learned Judge has observed that normally when the accused person is arrested within the territory of the gujarat state and if at that time he is found to have consumed liquor, in absence of any specific plea taken by the accused that he had consumed liquor outside the territory of Gujarat State, there is no reason to believe that he must have consumed liquor outside the territory of the Gujarat State and not within the territory of the Gujarat State.
8. In view of this, I find that the prosecution case cannot fail on the ground that it is not proved that the accused has consumed liquor within the territory of the State of Gujarat.
9. Shri Patel next contended that the doctor rajbala, who has taken the blood sample of the accused has not observed the requirements of Rule 4 of the Bombay Prohibition (medical examination & blood test) Rules, 1959. He pointed out that in her deposition, the doctor has not said that she had sterilised the syringe and had used the sterilised water and swab. He also pointed out that the doctor has not said that she had not touched alcohol at any stage while withdrawing blood from the body of the accused. According to Shri Patel, therefore, it must be held that the extraction of the blood sample from the body of the accused was not according to rules and, therefore, conviction of the accused cannot be based on the percentage of alcohol which was discovered from his blood. In this connection Shri Patel relied upon the following observations made by Y.D. Desai, J. In Malahavarao Bhagwandas Kharade v. State of Gujarat : (1971)GLR956 :
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 persons 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 percentage of the alcohol is bound to increase if the alcohol was allowed to touch the syringe or any receptacle in which blood was drawn.
Now before dealing with this point, it would be necessary to see what the doctor has deposed in this connection. Her deposition appears at ex. 7 wherein she said as under:
I took 5 cc. Of his blood with boiled watered swab. I collected blood in phial containing anticoagulant pottasium anxelate. I took blood as per rules prescribed in form b. The said form contains my signature.
There is no reason to disbelieve the doctor who has otherwise given satisfactory proof that she has substantially complied with the requirements of Rule 4. Speaking of this case, the doctor has given certain details as to the precautions which she took at the time of collecting blood. It matters not, if she had not repeated every word prescribed by Rule 4. The doctor has said that she has added anticoagulant pottasium anxelate to the sample taken by her and she has further stated that she extracted blood as per rules. The deposition shows that she has referred to form b with reference to the prescribed Rules. Form No. B does not prescribe any rules and, therefore, shri patel contended that when the doctor says that she has extracted blood as per the rules prescribed in form B, she does not know what she was required to do. Here again I find that on account of the summary trial, the evidence given by the doctor is not recorded exactly in the words she has uttered in box. What the doctor means is that she had extracted blood according to the prescribed rules reference to form B seems to have been made with a view to prove her signature under that form, reference to the cross-examination of this doctor shows that not a single question is put to her to show that she has not taken necessary precautions at the time of extracting blood from the body of the accused. In fact this part of the evidence of the doctor has gone totally unchallenged. Under these circumstances, the evidence given by the doctor cannot be thrown away simply because she has not uttered certain words giving details about what precautions she took at the time of extracting blood.
10. The learned magistrate seems to have given undue importance to the mis-statement of the name of the father of the accused when the sample of the blood was sent to the Chemical Analyser. It is difficult to comprehend how this mistake could have assumed any importance because it is purely a typographical mistake. So far as the identity of the accused is concerned, there is clear and positive evidence to show that it was this accused who was taken to the doctor by two constables named Bismillabhai Ajamatkhan Ex. 4 and constable Virsingh Chhaganbhai ex. 6. It is very satisfactorily proved that it was this accused who was apprehended at the police station by the P.S.I. Balkrishna S. Deshtnukh, ex. 15 and constable Hemabhai Chhaganbhai ex. 11. Rajkam found at ex. 12 also corroborates this fact. Under the circumstances, the mistake in spelling of the name of the father of the accused committed while sending the sample to the Chemical Analyser is of no consequence all.
11. In view of what is stated above, I find that the order of acquittal passed by the learned magistrate should be set aside. The respondent-accused is found to have committed offence under Section 66(1)(b) of the Bombay prohibition Act. He was not found from a public place and was also not found under the influence of drink. Therefore, his conviction under Section 85(1)(3) of the Bombay Prohibition Act cannot be justified. The acquittal of the accused under that section is, therefore, maintained. There is also no evidence for the offences under Sections 110 and 117 of the Bombay Police Act and therefore his acquittal under these offences is also maintained.
In the result, therefore, this appeal is partly allowed and the order ofacquittal of the accused under Section 85(1)(3) of Bombay prohibition Act and Sections 110 and 117 of the Bombay Police Act is maintained and acquittal of the accused under Section 66(1)(b) of the Act is set aside and he is ordered to suffer S.I. For the offence under Section 66(1)(b) of three months. No order as to fine.
It is evident that as a result of this conviction, the accused is likely to lose his job. However, the fact remains that the accused is a public servant serving in the police department. Under the circumstances, Shri Patel's request for awarding him punishment lesser than the minimum of 3 months imprisonment, is not accepted.