SULEMAN USMANBHAI MEMON Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short and interesting question which arises in ibis Criminal Revision Application is as regards the weight to be attached to a report of a Chemical Examiner when the report is tendered as evidence under sec. 510 of the Code of Criminal Procedure without summoning and examining the Chemical Examiner as to the subject matter of the report. The accused was tried by the Judicial Magistrate First Class Broach for the offence of consuming liquor under sec. 66(1) (b) of the Bombay Prohibition Act 1949 (hereinafter referred to by me as the Act). The charge against the accused was that on 16 December 1959 at about out 5-45 P.M. he was found on a public road having consumed liquor in contravention of the provisions of the Act. A sample of the blood of the accused was taken by the police and submitted to the Chemical Examiner to the Government for determining the concentration of alcohol in the blood. Though the sample of the blood was taken on 16/12/1959 the same was not submitted to the Chemical Examiner until 8/01/1960. It is not known on what precise date the Chemical Examiner tested the sample of the blood. but a report was submitted by the Chemical Examiner to the police on 14/01/1960 stating the opinion of the Chemical Examiner that the concentration of alcohol in the sample of the blood was 0.191 per cent. The factual data on the basis of which the opinion was arrived at by the Chemical Examiner were not mentioned in the report nor did the report contain any grounds or reasons which had induced the Chemical Examiner to form the opinion. At the trial the prosecution tendered the report as evidence under sec. 510(1) of the Code of Criminal Procedure. The learned Magistrate did not think it necessary to summon and examine the Chemical Examiner as to the subject matter of the report and received the report in evidence under sec. 510(1). The accused also did not apply to the learned Magistrate under sec. 510(2) to summon and examine the Chemical Examiner as to the subject matter of the report. Relying on the report the prosecution contended that it was proved That the concentration of alcohol in the blood of the accused was 0.191 per cent and that having regard to sec. 66(2) of the Act the burden of proving that the liquor consumed was a medicinal or a toilet preparation or an anti-septic solution or a flavouring extract essence or syrup containing alcohol the consumption of which was not in-contravention of the Act or any Rules Regulations or Orders made thereunder was upon the accused and that since the accused had failed to discharge such burden the learned Magistrate was bound to presume that the accused had consumed liquor in contravention of the provisions of the Act or any Rules Regulations or Orders made under the Act. The learned Magistrate accepted this contention of the prosecution and held on the basis of the report that it was proved by the prosecution that the concentration of alcohol in the blood of the accused was 6.191 per cent and that the burden of proving that he had consumed non-prohibited liquor was therefore on the accused. The case of the accused was that he had consumed waterbury compound which is a medicinal preparation containing alcohol. The learned Magistrate disbelieved the story of the accused and held that the accused had failed to discharge the burden of proving that the liquor consumed by him was non-prohibited liquor and the Court was therefore entitled to presume that the accused had consumed liquor in contravention of the provisions if the Act or any Rules Regulations or Orders made under the Act. The learned Magistrate accordingly convicted the accused of the offence under sec. 66(1)(b) of the Act and sentenced him to suffer rigorous imprisonment for six months arid to pay fine of Rs. 1000/and in default to suffer rigorous imprisonment for further two months.

(2.) The accused preferred an appeal against the order of conviction and sentence passed against him by the learned Magistrate. The appeal was heard by the Session Judge Broach and the learned Sessions Judge upheld the conviction and sentence recorded against the accused. The learned session judge negatived the contention of the accused that no weight should be attached to the report since the report was meager and cryptic and the prosecution and not examined the Chemical Examiner as regards the subject matter of the report and that the report having no evidentiary value the prosecution cannot be said to have proved that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent so as to attract the applicability of sec. 66(2) of the Act. The learned Sessions Judge held that it was proved by the report that the concentration of alcohol in the blood of the accused was 0.691 per cent and that the burden of proving that he had consumed-non-prohibited liquor was therefore on the accused and that since the accused had failed to discharge that burden it is rightly presumed that the accused had consumed liquor in contravention of the provisions of the Act or any Rules Regulations or Orders made under the Act. The learned Sessions Judge accordingly maintained the conviction and sentence recorded against the accused and dismissed the appeal. The accused thereupon preferred this Criminal Revision Application to this Court. The Criminal Revision Application was filed by the accused from jail and a rule was issued by my brother Mehta on 23/12/1960 When the Criminal Revision Application reached hearing before me I felt that since the accused was not represented by any lawyer and the question involved in the Criminal Revision Application was a question of law it would be desirable to appoint some Advocate amicus curiae to assist the Court by presenting the case on behalf of the accused and I therefore appointed Mr. M.U. Shah amicus curiae to argue the case on behalf of the accused Mr. M.U.Shah accordingly appeared amicus curiae and presented the arguments on behalf of the accused. I am thankful to Mr. M.U. Shah for the assistance rendered by him to the Court.

(3.) The only question which has been debated before me is as to what weight should be attached to the report of the Chemical Examiner. It is undisputed that the prosecution can succeed only if the prosecution brings the case within sec. 66(2) of the Act so as to raise a presumption against the accused and in order to raise a presumption against the accused under sec. 66(2) the prosecution must prove that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. It is only if the prosecution establishes that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent that the presumption arises under sec. 66(2) that the accused had consumed prohibited liquor and in that event it would be for the accused to rebut the presumption by showing that the liquor consumed by him was non-prohibited liquor. The foundation for the application of the presumption under sec. 66(2) is that it should be proved by the prosecution that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. Now the only piece of evidence by which the prosecution in the present case sought to prove that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent was the report which contained the opinion of the Chemical Examiner that the concentration of alcohol in the blood of the accused was 0.191 per cent. If the report could be accepted as proof the fact that the concentration of alcohol in the blood of the accused was 0.191 per cent the presumption under sec. 66(2) would certainly arise and the accused having failed to discharge the burden of proving that he had consumed non-prohibited liquor would be liable to be liable to be convicted for the offence of consuming prohibited liquor. If on the other hand the report could not be accepted as proof of the fact that the concentration of alcohol in the blood of the accused was 0.191 per cent the presumption would not arise and that even the prosecution would have to prove that the accused consumed prohibited liquor and such proof being lacking the accused would be entitled to be acquitted. It will thus be seen that the conviction of the accused in the present case rests solely on the evidentiary value of the report. If the evidentiary value of the report is such that it can be said to be proved from the report that the concentration of alcohol in the blood of the accused was 0.191 per cent the conviction must stand; otherwise the conviction must be set aside. The crucial question therefore is what evidentiary value should be attached to the report and how far it can be said to be proved from the report that the concentration of alcohol in the blood of the accused was 0.191 per cent.