B.J. Divan, J.
1. This appeal has been filed by the State of Gujarat against the order of acquittal passed by the learned Judicial Magistrate, First Class, 2nd Court, Broach, in Summary Criminal Case No. 835 of 1968 of his Court. The respondent is the original accused and he was charged under Section 66(1)(b) and Section 85(1)(3) of the Bombay Prohibition Act, hereinafter referred to as 'the Act'. Charge under Section 66(1)(b) is in connection with consumption of intoxicant or alcohol, and under Section 85(1)(3) is in connection with being found drunk without being the holder of a permit. The learned Magistrate found the accused not guilty for both the charges and thereafter the State has preferred this appeal.
2. The prosecution case against the accused was that on June 27, 1968, police constable Fatehsingh Kesarisingh of Task Force, Broach, had gone to village Taria for a prohibition raid along with other police constables accompanied by panchas. The police party went to the Bhilwada of the village at about 6 P.M. At that timeon seeing the police arriving, the accused began to walk away very fast and so police constable Fatehsingh suspected the accused of having consumed alcohol and the accused was caught by the police. The prosecution ease is that the mouth of the accused was smelling of alcohol and he was found to be drunk. Immediately, a panchnama of the physical condition of the accused was drawn up and thereafter the accused was sent to the Civil Hospital, Broach. At the hospital, Dr. A.H. Pathak examined the accused at 12-15 A.M. that is, after the mid-night and in the vary early hours of June 28, 1968. Thereafter, Dr. Pathak issued the necessary certificate regarding the examination of the accused. Dr. Pathak took a sample of 5 c.c. of venous blood from the person of the accused for the purpose of analytical examination. On June 28, 1968, a phial containing the blood sample was sent by registered post to the Chemical Analyser at Junagadh. This phial was received by the chemical analyser at Junagadh on July 8,1968. The said sample was analysed on July 9,1968, and it was ascertained by the Chemical Analyser that the sample contained Order 1403 percent W/v of ethyl alcohol. The report of the analysis was forwarded by the Chemical Analyser to the Civil Hospital at Broach, and it was then forwarded to the appropriate police station. Thereafter, the accused was chargesheeted before the learned trial Magistrate.
3. The learned Assistant Government Pleader, who appeared for the State at the time of the hearing of this appeal before me, has very rightly stated that in view of the medical report of Dr. Pathak, which says that though the breath of the accused was smelling of alcohol, his speech, gait and pupils were normal and in view of the fact that the accused was not under the influence of alcohol, it was difficult to sustain the charge under Section 85(1)(3) of the Act. He, however, contended that the learned Magistrate was in error in acquitting the accused of the offence punishable under Section 66(1) of the Act. He contended that in view of the Chemical Analyser's report, the presumption as required by Section 66(2) the Bombay Prohibition Act should have been raised against the accused and the accused should have been convicted.
4. In para 8 of his judgment, the learned Magistrate has pointed out that though the phial, containing the sample of the blood of the accused Was dispatched by Dr. Pathakon June 28, 1968, it did not reach the Chemical Analyser's office till July 8, 1968. The learned Magistrate held that Rule 4(2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, was not complied with, and therefore the Chemical Analyser's report was not proper, and hence the offence under Section 66(1)(b) of the Act was not proved. Rules called 'The Bombay Prohibition (Medical Examination and Blood Test) Rules 1959, provide for medical examination, the manner of collection and forwarding of blood and the certificate of the test of sample blood. Sub-rule (2) of Rule 4 is in these terms:
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.
The rest of sub-rule (2) is not necessary for the purpose of this Judgment. As pointed out by J.B. Mehta, J. in Craning v. State Vol. Guj. L.R. 31 the provisions of Rules 4 and 5 are mandatory provisions and the Legislature has advisedly required the dispatch 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. In the instant case, the sample phial was sent on the very next day after the sample blood was drawn or within 24 hours of the drawing of the blood, that is, the sample phial was sent on June 28, 1968. However, the phial had not reached the Chemical Analyser, who is the Testing Officer, within seven days. It reached him on July 8, 1968. Therefore, this mandatory rule, which is meant for the protection of the accused persons, was not complied with, because it was not sent so as to reach the Testing Officer within seven days from the date of its collection. It is well known that even if a preservative is added, the sample deteriorates and that is why it must reach the testing officer with all promptness, and it is for this reason that it has been laid down in this mandatory rule that the Medical Officer has to forward the sample of blood to the Testing Officer so as to reach the Testing Officer within seven days. If the sample does not reach the Testing Officer within seven days, even though the delay may not be due to any fault of the prosecution or of the Medical Officer, the accused should not be made to suffer and Rule 4(2) cannot be read as to mean the date of the sample being received by the Testing Officer. It may be that in normal course, a sample sent by registered post from Broach would reach Junagadh within seven days. But that is not required by Rule 4(2). What is required by that rule is that the sample shall reach the Testing Officer within seven days from the date of its collection. Under these circumstances, it is obvious that in the instant case, these mandatory provisions have not been complied with. The learned Magistrate was, therefore, right in acquitting the accused of the offence punishable under Section 66(l)(b) of the Act.
This appeal, therefore, fails and is dismissed.