STATE OF GUJARAT Vs. SHANKER CHHAGAN

JUDGEMENT

(1.) This is a State's appeal against an order of acquittal passed by the learned Judicial Magistrate, First Class, Vyara in summary case No. 1270 of 1978. The offence is alleged to have been committed on 9th July, 1977 at village Ukai at about 4.45 p.m. It was the prosecution case that the accused was found drunk. He was examined by a doctor who collected 5 c.c. of blood from his body and sent it to the chemical analyser for examination and on receiving the report, showing that the blood contained alcohol to the extent of 0.0851 M the accused was prosecuted for the offences under Section 66(1)(b) and Section 85(1)(d) of the Bombay prohibition Act ('the Act).

(2.) On the evidence led before him, the learned Magistrate came to the conclusion that in the instant case, one of the mandatory requirements of rule 4(1) of the Bombay prohibition (Medical Examination and Blood Test) Rules, 1959 ('the Rules') was not complied with in as much the prosecution had not brought on record any evidence to prove that the doctor, while collecting the sample, had not allowed alcohol to touch at any stage while withdrawing blood from the body of the accused. He, therefore, relying on a decision of this court in the case of Malharrao Bhagwandas Kharade v. State of Gujarat, 12 G.L.R. 956. , acquitted the accused, aggrieved by which order, the State has preferred this appeal.

(3.) The language of rule 4(1) read with sub-rule (2) leaves no doubt that the main requirements contained in sub-rule (1) are of a mandatory character, sub-rule (2) says that the sample blood collected in the phial in the manner stated in sub-rule (1) shall be forwarded for test to the testing officer, and sub-rule (1), inter alia, contains a mandate that the registered medical practitioner shall use a syringe for the collection of the blood of the person produced before him and he shall sterilise the syringe in boiling-water, clean with sterilised water and swab the skin surface of the part of the person's body from which he intends to collect blood and it also provides that no alcohol shall be touched at any stage while withdrawing blood from the body of the person. The doctor who collected blood in this case viz Bhagwansingh Govind Singh Gohel, Medical officer, Ukai Project, has been examined as prosecution witness No. 3, and while describing the manner and method employed by him while collecting the sample of blood, he has nowhere stated that he took the said precaution of securing that no alcohol touched at any stage while withdrawing blood from the body of the accused. The certificate issued by him which is at ex. 11, merely contains a statement that the blood from the body of the accused was collected for chemical examination. While giving evidence, he has exhaustively and specifically stated as to what formalities were performed by him while collecting blood. He refers to sterilising the syringe, phial and needle in boiling water, preservative powder being added in phial, etc. He then says that there after he collected 5 c.c. of blood from the body of the accused. But he does not refer in his evidence to his having taken the necessary precaution of securing that no alcohol would touch at any stage while withdrawing blood from the body of the accused. He has, therefore, committed breach of the mandatory requirements contained in rule 4(1) of the Rules. It is true, it would be sufficient if the doctor makes a statement that he had complied with the requirements and followed the procedure prescribed by Rule 4(1) and that generally, evidence of this character can be accepted as adequate to establish that the requirements were conformed to, as observed in Kharade's case (supra). It is also, as pointed out by Mr. Chhaya, that the doctor in his evidence did make a statement that he collected the blood as per the Act and Rules 4 and 5 of the Rules. But later, he deposed as to what were the specific acts done by him and he failed to state that one of the specific acts required to be done by him viz. of securing that no alcohol touched at any stage while withdrawing blood from the body of the person, was performed by him in the instant case. It would have been a different matter if he had made a general statement stating that he complied with all the requirements of the rule at the time of collecting blood and had stopped there. But when he gives a detailed and exhausted narration of what he precisely did at the time of collecting blood and he refers to the various acts done by him, omitting to state the most important act required to be done by him with regard to non-touching of alcohol at any stage withdrawing blood from the body of the person, it means that this act was not done by him. He would not hive failed to mention the same, if he had done it. This is not a case in which, after generally saying that all formalities required under the Rule were complied with, the witness sought to illustrate by referring to a few ones. On close scrutiny of the list of specific acts as set out by him, it is manifest that the same is exhaustive and not illustrative. This is not an unimportant detail which he has omitted to set out. This was an essential requirement which is to be complied with as per the mandatory provisions contained in the rules and it, therefore, cannot be said that inadvertently he had omitted to refer to some small detail. In this view of the matter, I am unable to agree with Mr. Chhaya that the requirements of rule 4(1) were complied with and that the learned Magistrate erred in acquitting the accused on the ground of non-compliance with the mandatory requirements of rule 4(1). The result of the above discussion is that the appeal fails and consequently it is dismissed.