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Kodube v. State Of Maharashtra
Factual and Procedural Background
The prosecution case arose from an incident on 13th May 1975, when the petitioner allegedly behaved in a disorderly manner under the influence of liquor at Isar Hotel, Aurangabad. The hotel owner's son reported this to the police. The petitioner was apprehended near Jadhav Mandi and taken to the police station, then to a medical officer who examined him and collected a blood sample, which was later found to contain 0.080% w/v ethyl alcohol. A charge-sheet was filed against the petitioner under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act.
The prosecution examined nine witnesses, including four related to the petitioner’s behavior at the hotel, all of whom turned hostile and did not support the allegation of disorderly conduct or intoxication. Police witnesses and the medical officer testified regarding the arrest, medical examination, and handling of the blood sample. The petitioner, examined under section 313 CrPC, claimed he had consumed a medicinal preparation for stomach ache.
The trial court convicted the petitioner under sections 85(1) and 66(1)(b) of the Bombay Prohibition Act, sentencing him to one day’s simple imprisonment and a fine on each count, with sentences to run concurrently. On appeal, the Additional Sessions Judge acquitted the petitioner of the offence under section 85(1), finding no evidence of disorderly behavior, but confirmed the conviction under section 66(1)(b) based on the blood alcohol content and the petitioner’s failure to discharge the statutory burden under section 66(2).
The petitioner filed the present revision application challenging the appellate decision.
Legal Issues Presented
- Whether the delay in forwarding the blood sample for chemical analysis beyond the prescribed seven-day period under Rule 4(2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, affects the admissibility and reliability of the blood test report.
- Whether the petitioner’s conviction under section 66(1)(b) of the Bombay Prohibition Act can be sustained in light of the procedural irregularity regarding the blood sample transmission and the failure of prosecution witnesses to support the charge of disorderly conduct.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court focused on the procedural requirement under sub-rule (2) of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, which mandates that the blood sample must reach the testing officer within seven days of collection, accompanied by a forwarding letter bearing the seal. The court observed that the sample in this case was handed over to the Chemical Analyser on the ninth day after collection, exceeding the prescribed time limit.
The court reasoned that the requirement for timely delivery is mandatory because the sample’s fitness for analysis may be compromised after seven days. Although there was evidence indicating the sample was still fit for analysis and the alcohol quantity was unaffected, the prosecution failed to explain the delay. The court held that the accused was entitled to benefit of doubt on this ground.
Consequently, the court allowed the revision, set aside the conviction and sentence, and ordered refund of any fine paid. The court emphasized the need for the prosecution department to investigate the cause of the delay to prevent future occurrences.
Holding and Implications
The revision application is allowed and the conviction and sentence of the accused under section 66(1)(b) of the Bombay Prohibition Act are set aside.
The direct effect of this decision is the acquittal of the petitioner and refund of any fine paid. The court did not establish any new precedent but underscored the mandatory nature of procedural compliance concerning blood sample testing timelines and the importance of prosecution accountability in such matters.
1. This is an application for revision under section 401 of the Code of Criminal Procedure against the appellate decision of the Additional Sessions Judge, Aurangabad, partly allowing the petitioners' appeal and setting aside the conviction and sentence under section 85(1) of the Bombay Prohibition Act, and confirming the conviction and sentence of the petitioner under section 66(1)(b) of the Bombay Prohibition Act, imposed by the Judicial Magistrate, First Class, Aurangabad.
2. It is the case of the prosecution that when the petitioner had gone to take lunch at about 1 p.m on 13th May, 1975 in Isar Hotel at June Mondha Aurangabad, he behaved in disorderly manner under the influence of liquor. This was reported by the hotel owner's son Harish Kumar to the police. On receipt of the information. Head Constable Patnare who was incharge of the Police Station sent two constables to bring the accused. While they were on their way to the hotel, they met the accused near Jadhav Mandi. They brought him to the Police Station where he was sent to the Menical Officer. At the hospital, he was examined by Dr. Galande (P.W 6) at about 2.15 p.m Dr. Galande found that his gait was normal and the speech of the petitioner was coherent but he was smelling of liquor. He collected his blood and sealed it in a phial and sent it to the Chemical Analyser, Bombay for analysis. The analysis disclosed that it contained 0.080% of w/v. ethly alcohol. After completing the investigation a charge-sheet was filed against the petitioner under section 66(1)(b) and 85(1) of the Bombay Prohibition Act.
3. The prosecution examined as many as 9 witnesses out of which 4 were regarding his hehaviour at the hotel. They are: (1) Harishkumar (P.W 2) the son of the hotel owner, (2) hotel owner's servants Ramrao (P.W 3) and (3) Vithal (P.W 4) and (4) hotel owner Brij Mohan (P.W 8). All of them turned hostile. They did not say that the accused was under the influence of liquor and that he had behaved in disorderly manner.
4. The prosecution examined two Police Constables: Sham (P.W 6) and Paul (P.W 9). They stated that they apprehended the accused and produced him before the Head Constable Pathare. The accused was, thereafter, taken to the hospital. Police Constable Paul stated that blood sample was given to him by the Officer on 20th May, 1975 and he reached Bombay on 21st May, 1975 but he could not find the office of the Chemical Analyser and he located it on 22nd May, 1975. He stated that the blod Phial was handed over to the Chemical Analyser on the 22nd May, 1975 that is on 9th day after it was taken. The prosecution also examined Dr. Galande (P.W 6). Who stated that he has taken the blood sample. Police Sub-Inspector Pardeshi (P.W 1) conducted the investigation.
5. After the prosecution evidence was over, the accused was examined under section 313 of the Code of Criminal Procedure. He stated that he had stomach ache and, therefore, he had consumed ‘Javanan Jeevan Mixture’, a medicinal preparation for stomach ache.
6. The teamed Magistrate accepted the prosecution evidence and held that the accused was behaving in a disorderly manner in the hotel and that he consumed prohibited liquor and that he had not discharged the burden imposed on him under section 66(2) of the Bombay Prohibition Act. He therefore, convicted the accused under sections 85(1) and 66(1)(b) of the Bombay Prohibition Act and sentenced him to suffer simple imprisonment for one day and to pay a fine of Rs. 25/- on each of these counts. The substantive sentences were directed to run concurrently. He was also directed to suffer simple imprisonment for 7 days in default of payment of fine.
7. An appeal filed by the petitioner was heard by the Additional Sessions Judge, Aurangabad. He held that there was no evidence on record to show that the accused was behaving in disorderly manner in the hotel and acquitted him of offence punishable under section 85(1) of the Bombay Prohibition Act. He however, held that the accused had not discharged the burden imposed on him under section 66(2) of the Bombay Prohibition Act. His blood sample disclosed that it contained 0.080 per cent of w/v. ethly alcohol. He was, therefore, presumed to have consumed a prohibited liquor. He therefore confirmed the conviction and sentence imposed on the accused under section 66(1)(b) of the Bombay Prohibition Act. It is against this conviction and sentence that the accused has filed this revision application.
8. Sub-rule (2) of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 reads.
“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 tetter in Form ‘B’ which shall bear a facsimile of the seal or monogram used for sealing the phial of the sample blood.”
9. The fact that it has to be sent by a special messenger clearly shows that the phial must reach the testing officer within 7 days. It appears that the sample may not be fit for analysis after 7 days. That being so, the prosecution must take care that the sample reaches the Chemical Analyser within 7 days, in my opinion, this provision of Rule 4 appears to be mandatory. At least, there is evidence in this case to show that the sample was tit for analysis and that the delay had not affected the quantity of the alcohol in the sample. That being be, the accused was entitled for the benefit of doubt on that ground. There is no explanation by the prosecution why the delay has been caused. It is for the department to find out and make enquiries whether this delay was deliberate or was due to circumstances beyond their control.
10. In the result, the revision application is allowed and the conviction and the sentence of the accused is set aside and the rule is made absolute. Fine, if paid, be refunded to the accused.
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