PRAKASHBHAI RAMJIBHAI SUTARIYA v. STATE OF GUJARAT

the appeal preferred by the applicant and confirming the order dated 25.11.2016 passed by the learned 4^thAdditional Civil Judge, Himmatnagar (hereinafter referred to as "the learned Trial Court") in Criminal Case No.2141 of 2013 for offence punishable under Section 66(1)(b) of the Bombay Prohibition Act, 1949.

[2] The brief facts leading to the filing of the present revision application are that on 08.01.2013, at about 15:00 hours, it was alleged that the revisionist went to the office of Gujarat State Road Transport Corporation, Divisional Office, Himmatnagar in an intoxicated condition without permit or pass for the possession or consumption of an intoxicant substance. It was also alleged that the revisionist started abusing in public place and was found to be in an intoxicated and aberrant condition on 08.01.2013 at 15:00. This resulted into the lodgement of the First Information Report being III-C.R.No.5009/2013 before the Himmatnagar Town Police Station under Sections 66(1)(b) and 85(1)(C) of the Bombay Prohibition Act, 1949 and Section 110 of the Gujarat Prohibition Act. The revisionist was arrested by the

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police from the public place, and thereafter, he was taken to General Hospital Himmatnagar for medical examination. [2.1] Pursuant to the examination, investigation was carried out and charge-sheet papers came to be filed by the prosecution. The case was registered as Criminal Case No.2141 of 2013 before the learned Trial Court. The charges were framed and witnesses were examined by the learned Trial Court. Subsequent to the examination of the witnesses, filing of closing pursis and recording of statement under Section 313 of the Code, the learned Trial Court found the revisionist guilty of offence punishable under Section 66(1)(b) of the Bombay Prohibition Act. Accordingly, the revisionist was convicted and sentenced to one month simple imprisonment along with a fine of Rs.500/-.

[2.2] Being aggrieved with the order dated 25.11.2016 passed by the learned Trial Court, the revisionist challenged the said order by way preferring an appeal, being Criminal Appeal No.47 of 2016 before the learned Appellate Court. The learned

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Appellate Court confirmed the conviction passed by the learned Trial Court. However, the learned Appellate Court had modified the sentence to the extent that the revisionist - applicant had to render community service for one month at the General Hospital, Himmatnagar instead of simple imprisonment of one month. Further, a fine of Rs.500/- was enhanced to Rs.1000/-. This order passed by the learned Appellate Court is assailed in the present revision application.

[3] Heard Mr. Sanket K. Pandya, learned advocate appearing for the applicant and Mr. Hardik Soni, learned Additional Public Prosecutor appearing for the respondent - State.

[4] The main crux and submission of Mr. Sanket K. Pandya, learned advocate appearing for the applicant is that there is a breach of procedure prescribed under Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 (hereinafter referred to as "the Rule"), which has to be followed by the registered medical practitioner in a manner as prescribed in the Rule. It was submitted by Mr. Pandya, learned

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advocate appearing for the applicant that Rule 4 of the Rule was not categorically followed. The syringe which was required to be sterilized before taking the medical test was not done as required under Rule 4. It was further submitted that while submitting Form-C, forwarding letter was not attached and, therefore, there was a breach of Rule 4. It was further submitted by Mr. Pandya that the panch witness had turned hostile and there were procedural lacuna by the investigating agency. In wake of such submission, Mr. Pandya, learned advocate appearing for the applicant has prayed that the orders passed by the learned Trial Court as well as learned Appellate Court suffer from anomalies and infirmities, and therefore, are required to be quashed and set aside.

[5] Per contra, Mr. Hardik Soni, learned Additional Public Prosecutor has submitted that the incident occurred in a public place and the revisionist - applicant had created a ruckus at a public place. He was in an aberrated and intoxicated condition. The procedure has been properly followed and the medical test has been done as per the provisions of law. Witnesses and

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medical practitioners are examined and Form- A, B & C are on record. All the procedure as required by the investigating agency and by the prosecution is produced on record. Mr. Soni, learned Additional Public Prosecutor has also submitted that there is a concurrent finding, therefore, in the limited scope of revisional jurisdiction, there cannot be any perversity in the judgment and order passed by the learned Trial Court and the learned Appellate Court. On the basis of such submissions, Mr. Hardik Soni, learned Additional Public Prosecutor has requested to dismiss the present revision application.

[6] Having heard learned advocates appearing for the respective parties and perused the document on record, it can be observed that the incident took place in a public place and there are witnesses to the incident. The main thrust of the argument canvassed by the learned advocate for the applicant is with regard to breach of Rule 4. For ready reference, Rule 4 of the Rule is reproduced hereinafter:-

"4 Manner of collection and forwarding of blood.

(1) The registered medical practitioner shall use a syringe for the collection of the blood of the person

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produced before him under rule 3 the syringe shall be sterilised by purring in boiling water before it is used for the aforesaid purpose. He shall clean with sterilized water and swab the skin surface of the 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 c. c. 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 anti-coagulant and preservative and the phial shall then be shaken vigorously to dissolve the anti-coagulant 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 practitioner.

(2) The sample blood collected in the phial in the manner stated in sub-rule (1) shall be forward 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 fascimile of the seal or monogram used for sealing the phial of the sample blood."

[7] As far as submission with regard to the forms are concerned, it has come on record that Form- A, B & C were having proper seal and signatures as required by law. These forms have also been duly exhibited and produced on record.

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Therefore, there cannot be any infirmity for the procedure of requisite forms. Further, it can be observed that the incident happened on 08.01.2013. The sample was taken immediately, thereafter sent for analysis on 11.01.2013 and the report was made on 12.01.2013. Hence, all the parameters laid down under Rule 4 were followed. As far as compliance of Rule 4 of the Rule, there is categorical finding given by the learned Trial Court as well as the learned Appellate Court. The finding rendered is as below:

"13. Considering the contention raised by the learned advocate for appellant - accused, in the light of oral as well as documentary evidence of Medical Officer Dr. Darshanaben Kantilal Tabiyad (Exh. 13) and documentary evidence produced by her, it can be said that on 08/01/2013, at about 3:55 p.m., the appellant - accused was brought before her by Head Constable Taljabhai Odharbhai Desai along with the Police Yadi and while examining him clinically by the said Medical Officer, she also found that the breathing of appellant - accused was also with smell of alcohol. His pupils of eyes were diluted. His speech was incoherent and he was also unstable. So clinically the Medical Officer also found that he had consumed alcohol. Therefore, a blood sample was taken by her and the said blood

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sample, after sealing and labelling, was sent to the Forensic Science Laboratory, Gandhinagar. The Medical Officer has specifically deposed the procedure adopted by her for taking the blood sample from the body of the appellant - accused and has also produced Form A and B prescribed as per the Prohibition Act and Rules. While going through the oral as well as documentary evidence of said Medical Officer, in the light of the cross- examination, it can be said that the Rule 4 of Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 has been substantially complied with by her while taking the blood sample from the body of the appellant - accused. She has stated in her deposition that before taking the sample of blood from the body of appellant - accused, she had used disposable syringe and needle and for taking the said blood sample, the part of his hand from where she had taken blood sample was cleaned by 1% Gentian Violet and she had taken 5-cc blood sample from his body which was transferred in a sterilized phial contained with preservative of Mercury Chloride and anticoagulant and after sealing the phial with seal of hospital, she had prepared Form A and thereafter, with Form B, the said sample was sent to Forensic Science Laboratory on 08/01/2013 and she has also produced Form A, B, C vide Exh. 15, 16 and 17 and also specifically deposed that while taking the sample from the body of the accused, she had taken all precautions not to touch to the spirit or alcoholic substance. Thus, the

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Medical Officer has deposed about the procedure adopted by her while taking the blood sample from the body of the appellant - accused.

14. The witness has been cross-examined on behalf of the appellant - accused, but nothing has been brought on record to disbelieve the evidence led by the witness, the Medical Officer. In cross- examination, she has admitted that she is MBBS and in hospital, there is also MD Pathologist. For sterilizing a syringe and needle, 50 to 60 minutes' time is required. Before sending the phial to Forensic Science Laboratory, it is kept in personal custody. She also admitted that in medicine of cough, normally alcohol presented and in Form C, there is no mentioning of the letter number and date. So on the basis of the additional facts brought on record through the cross-examination, it can be said that nothing has been brought on record to disbelieve the evidence of Medical Officer.

15. It is true that there is some contradiction in oral as well as documentary evidence Form B and C, but that contradiction is not material and it is happened due to the change of the address of the Forensic Science Laboratory as well as new practice of adopting disposal syringe and needle for taking blood sample. The Medical Officer had used disposable syringe and needle for taking blood sample from the body of the appellant - accused, while in the Form B which is prescribed by the Rules, it is mentioned that the syringe used for the collection of blood was sterilized by putting it

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into boiling water before its use. The Rules framed under the Bombay Prohibition Act for taking the blood sample are of 1959. At that time, the disposal syringe and needles were not available, but since several years, the disposable syringe and needle are available and normally in all hospitals and clinics, the disposable syringe and needles are used for taking blood sample and also for injecting medicines. The said disposable syringe and needles are sterilized by the manufacturing company itself and it is kept in sealed plastic bag. The said syringe and needles are normally brought out just before taking blood sample. Therefore, there is no possibility of being tampered the said syringe and needles by any substance including alcoholic alcoholic substance. substance. The The main object behind making the Rule of using sterilized syringe and needle is to protect the right of the accused and when the disposable syringe and needle are used, the right of the accused is protected. Therefore, it can be said that though the syringe and needle were not sterilized as per the provision of the Rule before taking the blood sample from the body of the appellant - accused, it cannot be said that there is a breach of the said Rule, but it can be said that the substantial compliance of the said Rule has been made by the Medical Officer while taking the blood sample from the body of the appellant - accused. Therefore, the contention of the learned advocate for appellant - accused that because the syringe and needle used for taking the blood sample from the body of the accused were not sterilized before using them, there is a breach of Rule 4, cannot be accepted.

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16. It is true that in Form B, which is prescribed and printed, the name of Forensic Science Laboratory has been mentioned as the Director, Regional Forensic Science Laboratory, New Mental Hospital Corner, Asarwa, Ahmedabad, while in Form C, it is mentioned that the report is of Directorate of Forensic Science, Gujarat State, Sector 18-A, Gandhinagar and it is also signed by Scientific Officer, Directorate of Forensic Science-cum- Assistant Chemical Examiner to Government of Gujarat, Gandhinagar. So it can be said that there is some contradiction regarding the Forensic Science Laboratory. As per the Form B, blood sample was sent to Forensic Science Laboratory, Ahmedabad, while the report is given by Forensic Science Laboratory, Gandhinagar, but that is not a material contradiction and it is happened due to the change of the address and location of the Forensic Science Laboratory subsequently. In printed Form C, the address of the Forensic Science Laboratory remained unchanged and of old location and address. But in fact the blood sample was sent to the Forensic Science Laboratory, Gandhinagar and the report is also sent by Chemical Examiner of Forensic Science Laboratory, Gandhinagar. While going through the Form B and C, it can be said that the bood sample was sent to the Forensic Science Laboratory immediately on the next day of taking of the blood sample and it was received by the Forensic Science Laboratory, Gandhinagar on 11/01/2013 through Registered Post AD and the analysis was made on very next day i.e. on 12/01/2013. In Form C, it is mentioned that the blood sample contained 0.0964 gram percent W/V of

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Ethyl Alcohol. Therefore, it can be said that the percentage found in the blood sample of the appellant accused was more than prescribed in the Rules. It is undisputed fact that the appellant - accused was not holding any licence to consume the alcohole or liquor. Therefore, on the basis of the oral as well as documentary evidence, it can be said that the Rules including the Rule 4 of Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 has been substantially complied by the Medical Officer as well as prosecution and there is no breach of mandatory provisions of said Rules including Rule 4. Therefore, the contention of the learned advocate for the appellant - accused cannot be accepted. The learned Magistrate has also considered the whole evidence brought on record by the prosecution. His order and judgment is quite detailed, though the case is required to be tried summarily and the learned Magistrate has not committed any error in holding that the Rules of Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 are duly complied with including the Rule 4 of the said Rules and the prosecution has proved charge of the offence punishable under Section 66 (1)(b) of Prohibition Act beyond reasonable doubt. Therefore, the contention raised by the appellant through appeal memo as well as oral submission cannot be accepted."

[8] Therefore, the findings itself are sufficient enough for showing the proper compliance as envisaged in the Rule. Accordingly, the submissions made by Mr. Sanket K. Pandya,

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learned advocate appearing for the applicant cannot be accepted.

[9] The revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice. The principles for exercise of revisional jurisdiction under Section 397, Cr.P.C. were highlighted in D. Stnbens Vs Nosibolla [1951 SCR 284] as also in K.C. Reddy Vs State of Andhra Pradesh [1963 SCR 412]. In State of Maharashtra Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004) 7 SCC 659], the Apex Court reiterated that the revisional power of the High Court under Sections 397 and 401, Cr.P.C. cannot be exercised as a second appellate power and that the High Court cannot, while exercising the revisonal power, undertake in-depth and minute re-examination of entire evidence and upset concurrent findings of the trial court and first appellate court.

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[10] Keeping in view the parameters for exercise of revisional jurisdiction, it could not be said that the orders passed by the courts below and the concurrent findings arrived at, were proper. They were factual in nature. The courts below could not be said to have committed any error in holding that the offence was committed. There was no material error in the concurrent finding recorded by the courts below. The learned advocate for the applicant has not been able to demonstrate any ground that would persuade this Court to interfere with the impugned judgment and order.

[11] Further, it can be observed that the learned Appellate Court has rightly sentenced the revisionist - applicant for a community service. Therefore, even though there is a conviction, the revisionist - applicant is only sentenced for community service. This itself reflects the reformative theory approach by the learned Appellate Court. Therefore, there remains no doubt in the mind of this Court that the order passed by the learned Appellate Court is just and proper.

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[12] In view of the observations made bereinbelow, the present revision application is meritless and is hereby dismissed with no order as to costs. Rule is discharged.

[13] The revisionist - applicant is required to follow the directions as given by the learned Appellate Court by way of order dated 15.12.2017. The revisionist - applicant shall execute bond for rendering community service of Rs.10,000/- (Rupees Ten Thousand Only) with personal and surety bond for due compliance of the order of community service as per the Rule 5 the Gujarat Rendering of Community Service in lieu of sentence of imprisonment (prescribing the form of bond, nature of the community service and the terms and conditions) Rules, 2005.

[14] Record and proceedings along with a certified copy of this judgment be sent back to the learned Trial Court. Sd/-

(PRANAV TRIVEDI, J.)

DHARMENDRA KUMAR

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