(1.) This appeal against the appellate order of acquittal passed by the lower appellate court is preferred by the State.
(2.) The respondent accused was prosecuted for offences punishable under Section 85 (1) (3) and 66 (1) (b) of the Bombay Prohibition Act (hereinafter referred to as 'the Act'), before the learned Judicial Magistrate. First class. 4th court Baroda In criminal case No. 3609 of 1974. It was the case of the prosecution that the accused had consumed alcohol and was found drunk on the road at P. T. S. compound. The complainant who is also residing in the said compound in the said quarters, at about 8.30 p. m. on 8-4-1975, found that the accused was drunk and was abusing him. He reported the matter to the authority concerned but, in the meanwhile the accused had left the place. He reappeared at 1 a. m., early next morning and was arrested. He was sent to the S. S. G. hospital. Baroda where the Casualty Medical Officer on duty examined him. In the opinion of the doctor, when he examined him. he was not under the influence of alcohol, though he was smelling of alcohol and he had consumed alcohol. The medical officer collected samples of blood and urine of the accused and the same were later sent for analysis to the chemical analyser. On analysis, it was found that the blood contained 0.2047 percent of w/v of alcohol. The accused was then put up for trial for the aforesaid offences and the learned Magistrate on the evidence led before him came to the conclusion that the prosecution had failed to bring home the charge under section 85 (1) (3) of the Act. He. therefore, acquitted the accusd for the said offence. He, however, found that the prosecution had succeeded in establishing the guilt of the accused so far as the charge under Section 66(1) (b) of the Act was concerned. He, therefore, recorded a finding of conviction for the offence under the said section and sentenced him to suffer R. I. for three months and a fine of Rs. 500/ in default further R. I. for 15 days.
(3.) In the appeal, which was preferred by the accused to the court of the learned Sessions Judge at Baroda. the learned Sessions Judge, though, on merits, he held that the accused had consumed liquor, on technical ground he acquitted the accused, holding that the prosecution had failed to establish that the offence had taken place within the territorial jurisdiction of the court of the learned Magistrate-Aggrieved by this order of acquittal, the State has preferred this appeal.
(4.) Mr. Thaker. the learned public prosecutor appearing for the State draws our attention to the fact, mat, after the decision of the Division Bench of this Court in State vs. Dhulaji Bavaji, 1963 (2) Criminal Law Journal. 273, relying on which decision the learned Sessions Judge acquitted the accused, the Act has been amended by adding Section 115 A and that, in view of the amendment of the Act, the decision would not be applicable in the instant case. It is true, as held by this Court in Dhulaji's case, it would be for the prosecution to establish that offence of consuming, prohibited intoxicant was committed by the accused within the territorial jurisdication of the court trying the accused and that there cannot be a presumption that the accused consumed liquor at the place where he was found. But Dhulaji's case no longer holds the field now, because the position has, thereafter, materially changed in view of the incorporation of Section 115 A into the relevant Statute i. e. the Act. Section 115-A of the Act reads thus :
"Notwithstanding anything contained in Code of Criminal Procedure, 1898 an offence of consumption of any intoxicant or hemp, specified in
clause (b) of sub section (1) of Section 66, may be tried by a Magistrate having jurisdiction either at the place in which the offence was actually committed or at any place in the State in which the offender may be found."
It would be thus seen that any place in the State where the offender is found can be a place of trial for the offence under Section 66(1) (b) of the Act as now provided by section 115-A. In the instant case, admittedly, the accused was found within the city limits of Baroda, within the territorial jurisdiction of the learned Magistrate, before whom he was put up for trial; and, therefore, the learned Magistrare was competent to try the accused for the said offence and the order, therefore, of acquittal of the accused recorded by the lower appellate court on the ground that the prosecution had failed to establish that the accused had consumed liquor within the territorial jurisdiction of the court, is erroneous, the same being contrary to the provisions contained in Sec. 115-A of the Act. It seems, the provisions of section 115-a were not brought to the notice of the learned Sessions Judge, who would not have passed tne said order of acquittal on the technical ground of jurisdiction, had his attention been drawn to these provisions.
(5.) But Mr. Mehta, the learned Advocate, who appears for the accused, supports the acquittal on two grounds. Firstly, he submits that in the instant case, there is no evidence led by the prosecution to show that the procedure prescribed by rule 4 of the Bombay Prohibition (Medical) Examination and Blood Test) Rules, 1959, (hereinafter referred to as 'the Rules'), was followed. Rule 4 in terms interalia, enjoins on the registered medical practitioner, who collects blood for the purpose of examination, to steriliese the syringe by putting it in boiling water before he uses the same for the purpose of collecting blood of the person produced before him under section 3 for medical examination. In the instant case, the medical officer examined at Ex. 4 Bharatkumar Patel, though he says that he collected the blood in a blub and that in the said blood sodium Choride has been added for the purpose of preservation, does not say that, for the purpose of collecting blood the syringe which was used was sterilized by putting it in boiling water before using the same. He has also not referred to various other precautions which a medical practitioner has to take at the time of collecting such blood. He has also not stated that the phlal in which blood was collected was labelled by him and its cap was sealed by means of sealing wax with the official seal or the monogram of the said medical practitioner. But on the contrary, if we look to the report of the chemical analyser, which is at ex. 6, it shows that the sample was sent in a phial bearing the seal of S.S.G.Hospital, M.L.D., Baroda, that means, seal of the Medico legal department of the hospital and not the seal of the medical practitioner who had collected the blood. Again, another infirmity which is pointed out is that, as per this report, the sample was sent by registered post while, as the prosecution witness Police constable Chandrasingh, PW 5 says, he had carried the sample personally. These are, therefore, two features which disclose that the procedure which Is of a mandatory nature, as prescribed by Rule 4, has not been followed in the instant case. In this views of the matter, on the basis of the findings as recorded in the chemical analyser's report, ex. 6 to the effect that the sample of blood sent to the said department contained 0.2047 percent of w/v of ethly alcohol, the order of conviction against the accused under section 66 (1) (b) of the Act cannot be recorded. We therefore, confirm the order of acquittal, though on a different ground, and the result will be the following order:
(6.) Appeal dismissed.