UKHA KOLHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) On April 3, 1961 at about 2-30 a.m., a motor vehicle fell into a ditch by the side of a highway near Edlabad, District Jalgaon and all the occupants of vehicle were injured. One Mohamad Yusuf who was in that vehicle died of the injuries. The appellant was tried before the Judicial Magistrate, First Class, Bhusawal, for offences of rash and negligent driving when he was under the influence of liquor and thereby causing the death of Mohamad Yusuf and injuries to four other occupants of the motor vehicle and also for offences under the Motor Vehicles Act. The trial Magistrate held that the evidence was not sufficient to prove that the appellant was driving the motor vehicle at the time of the mishap, and acquitted the appellant of the offences under the motor Vehicles Act and also under the Indian Penal Code. But he held that the evidence established that the appellant had at the material time consumed illicit liquor and had thereby committed an offence punishable under S. 66(b) of the Bombay Prohibition Act. He accordingly convicted the appellant, and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs.500/- and in default of payment of fine, to suffer rigorous imprisonment for two months. On appeal to the Court of Session, the order of conviction was set aside, and a retrial was directed, because in view of the Court there had not been a "fair and full" trial. A revision application filed against the order in the High Court of Bombay was summarily dismissed. The appellant has appealed to this Court with special leave against the order of the High Court.

(2.) The case for the prosecution, in so far as it relates to the charge for the offence under the Bombay Prohibition Act, is briefly this : Early in the morning of April 3,1961 as a result of motor vehicle Temp. No. 170 B.M.B. falling in a ditch near Edlabad several persons including the appellant were injured. At about 6 a.m. the appellant reached the Civil Hospital, Jalgaon. One Dr. Kulkarni, Resident Medical officer of the Hospital informing him about the death of Mohamad Yusuf, the appellant fainted and he was admitted as an indoor patient in the Hospital. On examination, the appellant was found "smelling of alcohol". Dr. Kulkarni thereupon directed one Dr. Rote to collect a specimen of blood from the body of the appellant, and accordingly some Venus blood was collected in a phial. the phial was closed in the presence of Dr. Rote and sealed. But before treatment could be given to the appellant, he was discharged from the Hospital at the request of some persons who accompanied him. The blood specimen remained in the Hospital. Information about the mishap to the motor vehicle was received by the police at Jalgaon at about 8 a.m. on that day and a case was registered against the appellant and four other persons for certain offences under the Indian Penal Code and the Motor Vehicles Act, and on receiving information that all the incumbents of the motor vehicle were at the time of the mishap in a state of intoxication, also under S. 66(1) (b) of the Bombay Prohibition Act XXV of 1949. The Officer in charge of the investigation sent the appellant to the Civil Hospital for medical examination. The condition of the appellant was found by Dr. Kulkarni to be normal. A specimen of the appellant's blood was again collected at about 11 a.m., and was sent to the Chemical Analyser, for examination and report. On April 12, 1961, the sub-Inspector in charge of the investigation came to learn that a specimen of blood of the appellant had been taken by the Hospital authorities early in the morning of April 3, 1961. On demand by the police officer the Medical Officer delivered the phial containing the blood specimen together with a certificate from Dr. Rote that a blood specimen of the appellant was collected by him at 6 a.m. on April 3, 1961. The investigating officer affixed an additional seal on the package and forwarded the same with a special messenger to the Chemical Examiner on April 18, 1961. On examination of the contents of the phial it was found that there was concentration of alcohol to the extent of 0.069 per cent. w/v ethyl alcohol. This concentration being in excess of the concentration mentioned in S. 66(2) of the Bombay Prohibition Act, a complaint for the offence under the Bombay prohibition Act was also lodged against the appellant.

(3.) At the trial, on behalf of the prosecution among others were examined Dr. Kulkarni, Dr. Rote and the investigating officer, the report of the Chemical Examiner was also tendered in evidence. But the special messenger who carried the sample was not examined; nor was any evidence given about the place where and the condition in which the phial containing the blood specimen was kept in the Hospital. The appellant in his statement to the Court denied that concentration of alcohol detected by the Chemical Examiner from the specimen taken by Dr. Rote exceeded 0.069 per cent. w/v. He admitted that on April 3, 1961 he was in the Civil Hospital in the early morning, that when he was told by Dr. Kulkarni about the death of Mohamad Yusuf he ''suffered a shock", that thereafter he went home immediately, and during that time his "mental condition was not good . He further stated: