Citation Codes

Equivalent Citations

citation codes

Case Number

Criminal Revision Application No. 205 of 1970, from judgment and order of Extra Addl. S.J, Mehsana in Cri. Appeal No. 53 of 1970

Advocates

K.J.Vaidya
A.M.Barot

Judges

Hon'ble Mr. Justice Yashwantrai Dahyabhai Desai

Acts

provisions of Rule 4 (2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959
Section 66(1)(b) of the Bombay Prohibition Act
Section 66(2) of the Bombay Prohibition Act
Section 129A of the Bombay Prohibition Act
provisions of Rules 4 and 5 of the rules
provisions of Rule 4 (2) of the rules
Clause (2) of Rule 4 of the Rules,
provisions of Section 129-A(2)
provisions of Rules 4 and 5
Bombay Prohibition Act,
Rule 4 (2) of the rules
Rule 4 (1) of the rules
provision of Rule 4
Sub-rule (1)

See more information ...

Smart Summary

Concise, Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner was convicted under Section 66(1)(b) of the Bombay Prohibition Act by the Judicial Magistrate, First Class, Kalol, in Criminal Case No. 3074 of 1968. That conviction was confirmed by the learned Extra Additional Sessions Judge, Mehsana, in Criminal Appeal No. 53 of 1970. The allegation was that the petitioner was found drunk on a public road at Kalol on the evening of 21 August 1968 and was sent for medical examination. The Medical Officer reported the petitioner to be under the influence of alcohol (although speech, gait and pupils were normal) and withdrew a blood sample at about 10:30 P.M. on 21 August 1968. The sample was dispatched to the Chemical Analyser on 28 August 1968 by registered post and received by the Chemical Analyser on 31 August 1968. On analysis the Chemical Analyser certified an alcohol concentration (noted in the opinion as 0.0736). The presumption under Section 66(2) of the Bombay Prohibition Act had, at an earlier stage, been considered not to have been rebutted; the present revision petition challenges conviction on grounds including defects in the manner of collection and forwarding of the blood sample and compliance with prescribed rules.

Legal Issues Presented

Whether the requirement in Rule 4(2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 — that the blood sample "reach the Chemical Analyser within seven days from the date of its collection" — is mandatory such that a breach vitiates the test and the Chemical Analyser's certificate is inadmissible.
Whether the mandatory provisions of Rule 4(1) (requiring precautions when withdrawing blood, including that no alcohol touch at any stage) were complied with and, if not, whether that non-compliance vitiates the blood test/report.
Whether any delay in forwarding the blood sample, or other procedural breaches, in the circumstances of this case, was such as to affect the reliability of the blood test and thus the validity of the conviction under Section 66(1)(b) (and the related presumption under Section 66(2)).
(Raised but not pressed at earlier stages) Whether the prosecution discharged the burden of proving that the alcohol was consumed within the court's territorial jurisdiction.

Arguments of the Parties

Petitioner's Arguments

The mandatory provisions of Rule 4(2) (seven‑day requirement for the sample to reach the Chemical Analyser) were not followed; therefore the blood examination is vitiated and the Chemical Analyser's certificate is inadmissible and cannot support conviction.
Rule 4(1) mandatory safeguards (sterilization, avoidance of alcohol touching syringe or receptacle, swabbing the skin, etc.) were not shown to have been observed by the Medical Officer; that mandatory violation could have affected the percentage of alcohol reported.
As an additional point, it was suggested that the prosecution had not proved that the alcohol was consumed within the court's jurisdiction (this point was not earlier raised or pleaded).

Respondent / Prosecution Arguments

The delay in forwarding the blood sample was not such as to affect the reliability of the test. Evidence from the Chemical Analyser indicated that where anticoagulant and preservative were added, the sample would remain fit for test for a "pretty long time".
On that basis the seven‑day period in Rule 4(2) should be regarded as directory rather than mandatory; therefore the certificate and the evidence of the Chemical Analyser remained admissible and reliable.
The lower appellate judge (Extra Additional Sessions Judge) considered several earlier rulings and concluded that the seven‑day provision was intended to avoid delay but would not itself invalidate a test performed after that period unless there was proof of prejudice to the sample.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ukha Kolhe v. State of Maharashtra, A.I.R. 1963 S.C. 1531	The opinion quotes the ratio: in an investigation under the Bombay Prohibition Act, examination of a suspected person or of his blood must be carried out only in the manner prescribed by Section 129A, and evidence from blood collected otherwise than in the prescribed manner "cannot therefore be used as evidence in the case."	The court relied on this Supreme Court principle to hold that a certificate of the Chemical Analyser derived from blood not collected/forwarded in the mandatory manner would be invalid/inadmissible. The opinion expressly cites Ukha Kolhe and applies its ratio to the present facts.
Karansingh v. State of Gujarat	The opinion indicates Karansingh considered provisions of Rules 4 and 5 and Section 129A, but the exact rule/principle text from that case is not reproduced in full in the provided opinion.	The court states that it "respectfully adopt[s] the reasoning of the learned Judge deciding Karansingh's case" and relies on that reasoning in its analysis of mandatory compliance with the Rules and Section 129A.
1969 Cri LJ 695 (Guj)	The provided opinion reports that this ruling held that the provisions of Rules 4 and 5 are mandatory in character and that where prosecution relies solely on a Chemical Analyser's report, the presumption under Section 66(2) cannot be drawn unless the mandatory provisions have been scrupulously followed.	The court cites this ruling to support the view that Rules 4 and 5 are mandatory and that failure to comply can render the Chemical Analyser's report inadmissible; it uses this authority to underpin its finding that mandatory provisions here were not followed.
Dalsukhji v. State of Gujarat	This precedent is mentioned as being considered by the lower court, but the provided opinion does not state the specific rule or principle from that case.	The case is referenced among other rulings the lower appellate judge considered; no specific application or detailed treatment of its principle is set out in the provided opinion.
Narayan Krishnaji v. State of Maharashtra	The opinion records that this ruling was considered by the lower court, but does not recite any specific legal principle from it in the provided text.	Referenced as one of the authorities considered by the Extra Additional Sessions Judge; the present opinion does not describe any direct reliance on or detailed application of this decision in the text provided.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps (using only the material present in the opinion):

Identification of the applicable statutory and regulatory framework:
- Section 129A of the Bombay Prohibition Act empowers and prescribes the manner of medical examination and collection/forwarding of blood in investigations.
- Rule 4(1) and Rule 4(2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 prescribe the method of collection and require that the sample "reach the Chemical Analyser within seven days" and be accompanied by a forwarding letter in Form B (with facsimile of the seal/monogram used to seal the phial).
Application of the facts to the rules:
- The blood was withdrawn on 21 August 1968 at about 10:30 P.M.; it was not forwarded so as to reach the Chemical Analyser within seven days. The sample was sent on 28 August and received on 31 August 1968 — beyond the seven‑day window.
- There was no evidence on record as to who retained the phial during the intervening period, what precautions were taken to prevent tampering, or where the sample was stored so as to avoid deterioration.
Consideration of conflicting contentions and authorities:
- The Assistant Government Pleader argued that delay did not affect the result because the sample had anticoagulant and preservative and would remain fit for test for a long time; on this basis Rule 4(2) should be treated as directory.
- The court examined prior authorities, notably the Supreme Court decision in Ukha Kolhe and the Gujarat authorities (including the 1969 Cri LJ 695 decision and Karansingh). Ukha Kolhe was cited for the principle that examinations under Section 129A must be carried out in the prescribed manner, and reports derived from blood collected otherwise cannot be used as evidence.
- The court noted the 1969 Cri LJ 695 (Guj) ruling that Rules 4 and 5 are mandatory and that the presumption under Section 66(2) cannot be drawn unless those mandatory provisions have been scrupulously followed.
Evaluation of the evidentiary gaps:
- Given the absence of evidence about custody and precautions for the phial during the eight‑day delay, the court found it impossible to say with certainty that the breach would not have affected the analysis.
- The court emphasized that the seven‑day rule is a legislative safeguard to prevent tampering or any change (including possible increase) in alcohol content if the sample is retained too long.
- On Rule 4(1), the court observed that the Medical Officer did not furnish evidence that a sterile syringe was used, that sterilization procedures (boiling) were performed, that the skin was swabbed, or that alcohol did not touch the syringe or receptacle during withdrawal. The court treated these particulars as mandatory, because alcohol contact could increase the measured percentage.
Conclusion of analysis:
- Relying on the principle in Ukha Kolhe and the cited Gujarat rulings, and given the factual lacunae concerning custody, forwarding delay and compliance with Rule 4(1) procedures, the court concluded the mandatory provisions had not been followed.
- Consequently the Chemical Analyser's certificate and the analyser's evidence could not be relied upon to sustain the conviction under Section 66(1)(b) or to furnish the presumption under Section 66(2).
- The court therefore allowed the petition, set aside the conviction, and acquitted the petitioner.
On the separate contention that the prosecution did not prove consumption within the jurisdiction, the court observed that the point had not been raised earlier or pleaded in the memorandum of appeal; thus it was not entertained as a ground for deciding the revision petition.

Holding and Implications

HOLDING: The petition is allowed and the conviction under Section 66(1)(b) of the Bombay Prohibition Act, which had been confirmed in Criminal Appeal No. 53 of 1970, is set aside; the petitioner is acquitted.

Direct implications for the parties:

The petitioner is acquitted of the charge.
Any fine paid is to be refunded to the petitioner.
The bail bond is cancelled.

Broader implications noted in the opinion: The opinion applies and follows established authority (including the Supreme Court decision in Ukha Kolhe and Gujarat rulings) that compliance with Section 129A and Rules 4 and 5 is mandatory where the prosecution relies on blood analysis. The court did not purport to lay down a novel rule of law beyond applying these authorities; it reversed the conviction because mandatory procedural safeguards for collection and forwarding of blood samples were not shown to have been observed in this case.

This summary is prepared strictly from the content of the provided opinion. No information has been inferred or added beyond what is contained in the opinion text.

Show full summary ...

Malahavarao Bhagwandas Kharade v. The State Of Gujarat Opponent.

1. This revision petition arises out of conviction of the petitioner Under Section 66(1)(b) of the Bombay Prohibition Act passed by the Judicial Magistrate, First Class, Kalol, in Criminal Case No. 3074 of 1968. This conviction of his came to ' be confirmed by the learned Extra Additional Sessions Judge, Mehsana in Criminal Appeal.No. 53 of 1970.

2. It was alleged against the petitioner that he was found drunk at Kalol on a public road on 21st August .1968 in the evening and that he was found drunk with the result that he was sent to the local Medical Officer for examination. The Medical Officer found that his speech, gait and pupils were normal; but he was found under the influence of alcohol. He extracted his blood that evening at about 10-30 P. M. and sent it to the Chemical Analyser for examination on 28th August 1968 by registered post. This blood sample was received by the Chemical Analyser on 31st August 1968. On examination thereof, he certified that the concentration of alcohol was to the extent of 0.0736 was of alcohol. It was held that the presumption arising Under Section 66(2) of the Bombay Prohibition Act had not been rebutted.

3. One of the contentions raised for the petitioner in the appeal was that the mandatory provisions of Rule 4 (2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 particularly with reference to the sending of the blood sample so as to

" reach the Chemical Analyser within seven days from the date of its collection had not been followed, and that it being a mandatory provision, the examination of the blood sample was vitiated and that the Chemical Analyser's certificate was not admissible in evidence, and could not be relied upon for the purposes of convicting the petitioner. The learned Extra. Additional Sessions Judge while considering the rulings in Karansing v. State of Gujarat, , Dalsukhji v. State of Gujarat, 1969 Cri LJ 695 (Guj), as also the ruling in Narayan Krishnaji v. State"

of Maharashtra, was of the opinion that the period of seven days provided under Rule 4 (2) of the rules was prescribed rich a view to avoid- delay in forwarding the sample and that it would not affect the result of the test even if it was despatched later, and therefore, held, in substance, that this part of the rule is directory and, not mandatory in character. He was also of the opinion that the breach complained of in the present case was not such as was likely to affect the result of the test and hence the report of the Chemical Analyser and his evidence could not be disregarded even if it was held that the provisions of Rule 4 (2) of the rules are mandatory in character.

4. One of the additional points raised in the matter by Mr. Barot, the learned advocate for the petitioner is that there was no evidence to show that the mandatory provisions provided in Rule 4 (1) of the rules to the effect that' no alcohol was touched at any stage while withdrawing the blood from 'the body of the person had been followed, and consequently even that mandatory provision had been violated.

5. Rule 4 (2) of the rules provides 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 monogram used for sealing the phial of the sample blood.

Admittedly, the blood sample of the petitioner was taken by the Medical Officer on 21st August 1968 at about 10-30 P. M. It was not forwarded to the Testing Officer within eight days and it is clear on the evidence recorded that this blood sample was received by the Chemical Analyser on 31st August 1968. It is, therefore, clear that the sample blood was not so sent so as to reach the Chemical Analyser within a period of seven days from the date of its collection. In this respect Section 129A of the Bombay Prohibition Act provides for power to require persons to submit to medical examination on certain conditions being fulfilled as provided in sub-section (1) thereof. sub-section (2) of the section also enjoins upon the registered medical practitioner, before whom an intoxicated person is produced, to examine him and "collect and forward in the manner prescribed the blood of such person" etc. etc. Therefore, two things are emphasised in this section as being of mandatory character, namely, that the registered medical practitioner is bound to examine the intoxicated person on being referred to for examination by the police officer who has a reasonable ground for believing that the person had consumed an intoxicant and it was necessary that his body be medically examined or that his blood be collected for "being tested for determining the percentage of alcohol therein. The second thing emphasised in Sub-section (2) is that the blood to be collected and forwarded for examination in the manner prescribed, If this provision is again read with Clause (2) of Rule 4 of the Rules, I have no shadow of doubt that the mandatory provision of Rule 4 has to be scrupulously followed' in collecting and forwarding of the blood sample. It has been contended by the learned Assistant Government Pleader that even if there was delay in sending the blood sample to the testing authority, it was not such as to affect the result of "the examination, as there is evidence of the Chemical Analyser examined to the effect that the blood sample to which anticoagulant and rjreservative were added would remain fit for test for a pretty long time, and consequently the rule could be held only to be directory and not mandatory in character. In the ruling in Karansingh v. State of Gujarat, , the provisions of Br. 4 and 5 of the Rules as also the provisions of Section 129-A(2) have been considered while taking into account the ruling of the Supreme Court in Ukha Kolhe v. State Of Maharashtra . A.I.R. 1963 SC 1531. I respectfully adopt the reasoning of the learned Judge deciding Karansingh's case, . In fact, in Ukha Kolhe's case A.I.R. 1963 SC 1531 it has been laid down as under:

In the investigation of an offence under the Bombay Prohibition Act, examination of a person suspected by a police officer of having consumed an intoxicant, or of his blood may be carried out only in the manner prescribed by Section 129A; and the evidence to prove the facts disclosed thereby will be the certificate or the examination viva voce of the registered medical practitioner, or the Chemical Examiner for examination in the course of an investigation of an offence under the Act of the person so suspected or of his blood has by the clearest implication of the law to be carried out in the manner laid down or not at all. Report of the Chemical Examiner in respect of blood collected in the course of investigation of an offence under the Bombay Prohibition Act, otherwise than in the manner set out in Section 129A cannot there- ' fore be used as evidence in the case...

Almost the same is the ratio in the ruling of 1969 Cri LJ 695 (Guj), where it has been held that the provisions of Rules 4 and 5 of the rules are mandatory in character and that where the prosecution solely relies on a report of the Chemical Analyser for blood concentration, presumption Under Section 66(2) of the Bombay Prohibition Act cannot be drawn unless the mandatory' provisions of Rules 4 and 5 of the rules have been scrupulously followed. The Legislature must are in its wisdom provided the period of seven days for the blood sample to reach the testing authority with a view to see that there may not be any tampering with the blood sample collected or that the alcohol contents of the sample of blood may not increase if it was kept in possession of the medical officer or his subordinate for an unduly long period. There is no evidence on the record to show in whose possession this phial remained till it was sent to the Chemical Analyser, There is also no evidence about the precautions having been taken to ensure that there was no tampering with the contents of the phial when it was with the medical officer. There is also nothing on the record to show that for a period of eight days this sample was kept in" such a place that it was not liable to deteriorate. It cannot be said with definite certainty that because of the breach of this rule of sending the blood sample to the testing authority so as to reach that authority within seven days, it was not likely to affect the result of the analysis. If ratio decidendi of Ukha Koine's pase is looked into, then the certificate of the Chemical Analyser which was a result of the mandatory provisions of Rules 4 and 5 of the rules, particularly the provisions now under consideration, is not valid and the same may as well become inadmissible in evidence. If that be so, we cannot look into that certificate; nor would the evidence of the Chemical Analyser in any way improve the matter. . In my opinion, the mandatory provisions under consideration have .not been followed in this case.

6. 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 person's 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 per centage of the alcohol is bound to increase if the alcohol was allowed to touch the syringe or any receptacle in which blood was drawn.

7. In these circumstances, I do not consider the third objection raised by Mr. Barot that even if it was held that the petitioner had consumed alcohol the prosecution had yet not discharged the burden of proof which lay on it to show that the alcohol consumed by the petitioner was within the jurisdiction of the Court. In fact, this aspect of the case had never been raised at any stage of the matter; nor has it been pleaded in the memorandum of appeal. The result, therefore, is that this petition is allowed and the conviction of the petitioner is set aside.

8. The petition is allowed and the conviction of the petitioner Under Section 66(1)(b) of the Bombay Prohibition Act confirmed' in Criminal Appeal No, 53 of 1970 is set aside and the petitioner is acquitted of the-above mentioned charge. Fine, if paid, be refunded to the petitioner. Bail bond cancelled.

Malahavarao Bhagwandas Kharade v. The State Of Gujarat Opponent.

Concise, Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent / Prosecution Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Malahavarao Bhagwandas Kharade v. The State Of Gujarat Opponent.

Comments