J.N.Bhatt, J.:-
(1) In this acquittal appeal under sec. 378 of the code of criminal procedure, 1873 ('the code' for short) , the appellant - state has questioned the legality and validity of the acquittal order recorded by the learned metropolitan magistrate, (court no. 16) , ahmedabad in summary case no. 2021 of 1986 passed on 11. 4. 1988.
(2) The respondent - original accused who was working as police inspector at the relevant time was charged for offences punishable under secs. 66 (l) (b) and 85 (1) (3) of the "bombay - prohibition, act, 1949. " the prosecution version was that the accused had consumed liquor without pass or permit and he was found under the influence of alcohol in a public place on 13. 3. 1986 at 1 - 0' clock in the early morning.
(3) Therefore, blood sample was collected from the accused and was sent for medical examination. The public analyst certified that blood cotained alcohol. On completion of the investigation, charge sheet followed. The prosecution relied on evidence of investigating officer and 10 other witnesses. P. W. Dr. Kamlesh who had drawn blood sample from the person of the accused is examined, at ex. 7. Medical certificate is produced, at ex. 8. P. W. No. 4 assistant chemical analyser, hasmukhbhai was examained at ex. 13. P. W. No. 7 r. K. Dwivedi is the investigating officer who was working as police inspector, at kalupur police station, at the relevant time and he was examined, at ex. 19, p. W. No. 11 nilkanth purohit is examined, at ex. 82 who was working as superintendent of police in anti - corruption bureau, at the relevant time. Other witnesses did not support the prosecution case.
(4) The trial court has found that the evidence of the aforesaid witnesses who have supported the prosecution case is not sufficient to transfix the culpability of the accused with which he was charged, beyond reasonable doubt. One of the grounds on which acquittal is recorded is non - compliance of the requirements prescribed under rule 4 of the bombay prohibition (medical examination and blood test) rules, 1959 ('the rules' for short). Mandatory provisions of rule 4 are not shown to have been complied with. Rule 4 reads as under:
" (1) the registered medical practitioner shall use a syringe for the collection of the blood of the person produced before him under rule 3. The syringe shall be sterilized by putting in the boiling water before it is used for the aforesaid purpose. He shall clean with 1% aqueous solution of mercurochrome or gentior violet, not containing alcohol or its solution 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 from the body of the person. He shall withdraw not less than 5 cc of venous blood in the syringe from the body of the person. The blood collected 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 preservantivc 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 practitioners.
(2) 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 fascsimile of the seal or monogram used for sealing the phial of the sample blood. "
(5) It appears from the aforesaid provision of rule - 4 that in order to ensure proper dispatch and identification of blood sample drawn from the person of the accused, it should be sent to the public analyst in prescribed manner so as to avoid any scope of manipulation or tampering with the sample of blood. Thus, there is healthy and wholesome object for making such provisions of rule - 4. It cannot be disputed that the view of the trial court that material - mandatory requirements of rule - 4 are not satisfied, this court is satisfied that the trial court is justified in reaching such a finding and conclusion, dr. Kamlesh was the concerned medical officer who had drawn blood sample from the person of the accused. He has clearly admitted in his evidence that he had not cleaned the phial or examined the phial before the sample blood was put in the phial. The person who had done the required process under rule - 4 is not examined. Therefore, in the light of the facts and circumstances of the case, the procedural safeguards prescribed in rule 4 so as to ensure better dispatch and analysis of the incriminating sample taken from the accused, are not satisfactorily established. This appeal can be disposed of on the aforesaid sole ground and, therefore, it would not be necessary to divulge or address on other aspects. Since the material mandatory provisions of rule - 4 of the rules are not satisfied and complied with, this appeal is required to be dismissed on this sole ground. Accordingly, it is dismissed.
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