B.S. Kapadia, J.
1. The present revision application is filed by the petitioner, original accused, against the order of the learned Sessions Judge, Bhavnagar confirming the order of conviction and sentence passed by the Judicial Magistrate, First Class, Mahuva for the offence punishable under Section 66(1)(b) of the Bombay Prohibition Act, 1949 (hereinafter referred to as 'the Act').
2. The short facts of the case may be stated as under:
The present petitioner, at the relevant time was serving as police constable at Mahuva Police Station. The petitioner went to Shivshakti Rajputana Lodge in the evening of February 21, 1979. One Tejumal Asandas was serving in the said lodge. The said lodge belongs to one Sevakmal Tulsidas Sindhi. The petitioner, who had gone there along with another person, asked for food and he was given food. He then started asking as to why there was something wrong with the food and then started speaking at random. He also asked for preparation of eggs and that was given to him. Thereafter he asked for liquor but it was not available there. Thereupon the petitioner got up and gave a push to the servant as a result of which he fell down and sustained injury. As information with regard to the aforesaid offence was recorded as N.C. complaint. Head Constable Kantilal Dayashanker Dave was sent to find out the petitioner who was reported to be near Meghdoot theatre. However, he was not found there. Subsequently, P.S.I. Ravindra Chhanabhai Patel found out the petitioner near Meghdoot theatre. He apprehended him and took him to the police station-where panchnama of his person was made. The petitioner was then sent to Mahuva Municipal Hospital for examination and for collection of sample of venous blood. The Medical Officer Dr. Rajanikant Devji Chauhan on examination found that the accused had consumed alcohol. He took 5 cc. venous blood and sent the same to Regional Forensic Laboratory, Junagadh and on examination of the said sample it was found that it was containing 0.1495% of alcohol M/V. On these facts the accused was prosecuted for the offences under Sections 66(1)(b) and 85(1)(3) of the Act.
3. From the evidence on the record) the learned Magistrate found the accused guilty and sentenced him to suffer S.I. for one month and fine of Rs. 50/-, in default S.I. for fifteen days for the offence under Section 85(1)(3) of the Act read with Section 255(2) of the Criminal Procedure Code and further sentenced him to the minimum sentence of S.I. for three months and a fine of Rs. 500/-, in default, S.I. for one month for the offence under Section 66(1)(b) of the Bombay Prohibition Act read with Section 255(2) of the Criminal Procedure Code.
4. Against the aforesaid order of conviction and sentence, the present petitioner preferred Criminal Appeal No. 1 of 1980 before the Sessions Court, Bhavnagar. The learned Sessions Judge acquitted the petitioner for the offence under Section 85(1)(3) of the Act and set aside the sentence imposed on the accused by the learned Magistrate. However, the learned Sessions Judge confirmed the order of conviction and sentence for the offence under Section 66(1)(b) of the Act. Being aggrieved by the order confirming the conviction and sentence for the offence under Section 66(1)(b), the petitioner has filed the present revision application.
5. Mr. J. D. Ajmera, learned advocate for the petitioner, submits that the learned Sessions Judge has erred in not holding Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 (hereinafter called 'the Rules') as mandatory. He further submitted that as Form B did not contain the clear impression of the seal which was applied on the phial in which blood of the petitioner was collected and sent to the laboratory at Junagadh, there is no substantial compliance with the rule and, therefore, conviction under Section 66(1)(b) cannot be sustained.
6. Mr. S.R. Divetia, learned Public Prosecutor, submits that Rule 4 is not mandatory but it is directory and the very purpose of the rule is to safeguard the interest of the accused inasmuch as there may not be any change of the phial.
7. In that view of the matter, it is necessary to see Rule 4 of the said Rules. Sub-rule (1) of Rule 4 provides that the registered medical practitioner shall use a syringe for the collection of blood of the person produced before him under Rule 3. The syringe shall be sterilized by putting it into boiling water before it is used for the aforesaid purpose. He shall then 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. He shall withdraw not less than 5 c.c. of venous blood in the syringe from the body of the person. The blood collection 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 wax with the official seal or the monogram of the registered medical practioner.
8. Sub-rule (2) of the said Rule 4 provides that 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 the monogram used for sealing the phial of the sample blood.
9. Relying on Sub-rule (2) Mr. Ajmera submits that the Form 'B' which is at Ex. 8 does not bear the legible seal and in the report at Ex. 9 also the said seal affixed on the phial has been described as illegible even by the Testing Officer of the Laboratory. When that is so, there is no substantial compliance with the Rule and, therefore, the conviction cannot be confirmed. He further submits that in the case of State of Gujarat v. Jonsing Gangusing Rajput reported in 1979 Criminal Law Reporter at page 181, the Division Bench of this Hon'ble Court has held that the procedure which is prescribed under Rule 4 is of a mandatory nature which has not been complied with in the present case. As against that Mr. Divetia, relies upon the judgment in the case of Kisan v. State of Maharashtra reported in : AIR1979SC1824 In the said case, Their Lordhips have in terms held as under:
We are clearly of the opinion 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 analysing the results, then the rule must be deemed to have been substantially complied with.
10. In view of this clear pronouncement of the Supreme Court, there cannot be any controversy about the directory nature of Rule 4.
11. It may be stated that Rule 4 prescribes certain safeguards for taking blood of a person for collecting it and for sending it to the Public Analyst. Sub-rule (1) prescribes that the phial shall be labelled and sealed by means of sealing wax with the official seal or the monogram of the registered medical practitioner. Similarly, Sub-rule (2) also prescribes that the said phial shall be accompanied by a forwarding letter in form 'B' which shall bear a facsimile of the seal or the monogram used for sealing the phial of the sample. It may be noted that when the phial is sent, it also bears serial number and the seal in addition to the fixing of the impression of the official seal or the monogram of the registered medical practitioner. Here, as per the rule, the phial is labelled and serial number 550 is given in the present case. The same number is mentioned in Form 'B' as well as Certificate, Form 'C, Ex. 9. The said phial was sent duly sealed and the seal found to be perfect. It was not in broken state. Under the circumstances, though the said seal was having the impression of the official seal of the monogram of the medical practitioner, it was not legible. It is true that it is one of the ways in which the phial can be properly identified but that is not the only method of identifying the said phial along with Form 'B'. When Rule 4 has been held to be directory by the Hon'ble Supreme Court, it is to be seen as to whether there is substantial compliance thereof or not. It is important to note that in this case there is seal affixed but that is not legible. When the seal is affixed, normally it should be legible otherwise one cannot properly read along with Form 'B' when it is to be compared with the phial received by the laboratory. It is, therefore, unnecessary to clarify that when cap of the phial is to be sealed with the official seal or the monogram of the registered medical practitioner the impression of the said seal should be legible. It cannot be said that as the word 'legible' not used in the rule, even illegible impression can be affixed. The very purpose of the rule is for the proper identification of the phial with the impression of the seal on Form 'B' which is to be sent along with the phial to the Laboratory. However, it would be too technical to say that in the present case when it is illegible one, Rule 4 is not substantially complied with. Though the rule is directory and not mandatory, the registered medical practitioner should take care to see that he complies with the rule by putting the legible official seal or the monogram. It cannot be understood that it can be dispensed with because there are other safeguards also. But in the present case as there are other circumstances which clearly prove that the same phial No. 550 with perfect seals was received by the office, it could be compared with Form 'B'. It cannot be said in the present case that there is no substantial compliance of Rule 4, merely because the seal so affixed was not a legible one.
12. Mr. Ajmera has also pointed out to me the judgment of Justice Bhatt delivered in Criminal Appeal No. 164 of 1976 decided on May 3, 1977. In the said case, Justice Bhatt has observed as under:
Unfortunately, in this case, which is otherwise foolproof, the specimen seal on the phial as noted in Ex. 11 does not seem to have been a perfect seal. The only word in the seal that is visible is 'Bombay' and nothing else is visible. In view of this unsatisfactory state of affairs, the accused's acquittal for the offence under Section 66(1)(b) of the Bombay Prohibition Act also stands to be confirmed.
13. It is important to note that here in this case the position is different. In Ex. 9, it is clearly stated as under:
Your letter No. 9, dated 21-2-79 forwarding a phial containing blood of Shri Jethalal Girdharlal bearing serial No. 550 label found received here on 26-2-79 by post, R. P. P. seals perfect and illegible. Analysed on 8-3-79.
So in this case the seals were found to be perfect. There was no broken seal on the phial. While in the case before Justice Bhatt, only what was visible was 'Bombay' and it was not perfect seal. In that view of the matter, the judgment delivered by Justice Bhatt is not helpful to the petitioner in the present case. Here, the identity of the phial is fully established by the other evidence on the record when compared with Form B at Ex. 8.
14. In that view of the matter, I hold that Rule 4 is substantially complied with in the present case and when that is so, the report of the Forensic Laboratory can be used against the petitioner and it has been rightly used by the learned Sessions Judge.
15. At this juncture, it may also be noted that on this point no questions were put to the registered medical practitioner and when that is so, as per the Division Bench Judgment of this Court in the case of Kamleshkumar v. State reported in 22 G.L.R. page 404, presumption under Section 114, illustration (e) of the Evidence Act could be raised in favour of compliance with the requirement of the rule. No other point is submitted against confirmation of the conviction of the petitioner.
16. Now, Mr. Ajmera submits that on the point of sentence, the petitioner was not heard by the learned Magistrate as well as by the learned Sessions Judge. He, therefore, submits that though under Section 66(1)(b)(i) this was the first offence of the petitioner, still however, if the learned Magistrate had given him an opportunity of hearing on the point of sentence, he could have pointed out adequate and sufficient reasons for awarding less than the minimum sentence. Mr. Divetia submits that this is the offence under the Bombay Prohibition Act and, therefore, the summary procedure is to be followed and the learned Magistrate has also followed summary procedure and. therefore, when he is dealing with summary cases he has to follow procedure prescribed for summons cases and in the said procedure there is no provision for hearing the accused on the point of sentence. He further submits that the provisions of Section 235(2) are meant for Sessions cases while the provisions of Section 248(2) are meant for warrant cases. There is no provision for hearing the accused on the question of sentence in the procedure for trial of summons cases and, therefore, it is not mandatory to give hearing at the time of awarding sentence.
17. At first blush the argument of Mr. Divetia appears to be quite attractive but if we read the provisions of Section 66 of the Act which provides for awarding minimum sentence, it is clear that the learned Magistrate is also conferred with the power of awarding less than the minimum sentence provided under the section when there are no special and adequate reasons to the contrary. Now, whether there are special reasons or not can be ascertained only when the opportunity of hearing is given to the accused and not otherwise. The very language of the proviso to Section 66 which provides for a minimum sentence clearly indicates that before awarding sentence, opportunity of hearing should be given to the accused so that he can point out if there are any special and adequate reasons to impose upon him sentence less than the minimum prescribed under the section. Once when the section provides for the same, it is not necessary to see which procedure is to be followed.
18. Mr. Divetia has pointed out to me the judgment of the Supreme Court in the case of Narpal Singh v. State of Haryana reported in A.I.R. 1977 S.C. 1065 and submitted that in that case the accused was tried for the offence of murder and when minimum sentence of life imprisonment was awarded to the accused, Their Lordships of the Supreme Court have observed that it is not necessary to remit the case to the Sessions Judge. It is true that when the minimum sentence is given, it is not necessary to send the case to the Sessions Judge. The case which Their Lordships were dealing with was a case for an offence under Section 302 and, therefore, the Sessions Judge had no power or jurisdiction to award less than life imprisonment even though there may be adequate and special reasons for the same. While contrary provision is made in the proviso to Section 66 of the Bombay Prohibition Act, it cannot be interpreted on the same line as Their Lordships have done for the offence under Section 302. Therefore, that case is not helpful in the present case.
19. In that view of the matter, the sentence imposed upon the petitioner without hearing on the point of sentence will be required to be set aside and the matter will have to be remanded to the learned Judicial Magistrate, First Class, Mahuva only on the point of sentence. The revision application is, therefore, partly allowed on the point of sentence under Section 66(1)(b) though conviction of the petitioner for the said offence is upheld. Rule is made absolute to that extent. The learned Magistrate is directed to hear the petitioner on the point of sentence for his conviction under Section 66(1)(b) of the Bombay Prohibition Act. After hearing him he is directed to pass an appropriate order on the point of sentence. As the case is very old, he is directed to dispose of the case as early as possible on his receiving the writ and record and proceedings of the case from this Court.