MALAHAVARAO BHAGWANDAS KHARADE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision petition arises out of conviction of the petitioner under sec66(i)(b) of the Bombay Prohibition Act passed by the Judicial Magistrate First Class Kalol in Criminal Case No. 3074 of 1968. This conviction of his came to be confirmed by the learned Extra Additional Sessions Judge Mehsana in Criminal Appeal No. 53 of 1970.

(2.) It was alleged against the petitioner that he was found drunk at Kalol on a public road on 21st August 1968 in the evening and that he was found drunk with the result that he was sent to the local Medical Officer for examination. The Medical Officer found that his speech gait and pupils were normal; but he was found under the influence of alcohol. He extracted his blood that evening at about 10-30 P. M. and sent it to the Chemical Analyser for examination on 28th August 1968 by registered post. This blood sample was received by the Chemical Analyser on 31st August 1968. On examination thereof he certified that the concentration of alcohol was to the extent of 0.0736 w/v of alcohol. It was held that the presumption arising under sec. 66(2) of the Bombay Prohibition Act had not been rebutted.

(3.) One of the contentions raised for the petitioner in the appeal was that the mandatory provisions of rule 4(2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 particularly with reference to the sending of the blood sample so as to reach the Chemical Analyser within seven days from the date of its collection had not been followed and that it being a mandatory provision the examination of the blood sample was vitiated and that the Chemical Analysers certificate was not admissible in evidence and could not be relied upon for the purposes of Convicting ? the petitioner. The learned Extra Additional Sessions Judge while considering the rulings in Karansing v. State of Gujarat VIII G.L.R. 81 Dolsukhji v. State of Gujarat (1969-1) 75 Cri. L. J. 695 as also the ruling in Narayan Krishnaji v. State of Maharashtra (1963) 65 Bom. L. R. 473 was of the opinion that the period of seven days provided under rule 4(2) of the rules was prescribed with a view to avoid delay in forwarding the sample and that it would not affect the result or the test even if it was dispatched later and therefore held in substance that this part of the rule is directory and not mandatory in character. He was also of the opinion that the breach complained of in the present case was not such as was likely to affect the result of the test and hence the report of the Chemical Analyser and his evidence could not be disregarded even if it was held that the provisions of rule 4(2) of the rules are mandatory in character.