STATE OF GUJARAT Vs. CHANDRASING PRABHATSING SOLANKI

JUDGEMENT

(1.) * * * *

(2.) Thus if the report of the chemical analyser disclosed that the blood of the accused contained o. 1081% of ethyl alcohol a presumption could be raised that the accused had consumed liquor. It was for the accused then to discharge the burden by showing that he had consumed medicine or toilet preparation.

(3.) The learned advocate for the defence submitted that the accused had given proper explanation in his statement recorded under sec. 342 of the Code of Criminal Procedure. He urged that the accused had stated that he had taken medicine and there was no reason why his bare statement should not be accepted. He submitted that the medical officer Padra in his cross-examination had admitted that if 8 or 9 Oz. of Winopal were taken the blood may contain 0.1081% of alcohol. Relying on this part of the evidence of the medical officer the learned defence advocate forcefully urged that when from the prosecution witness it was established that Winopal would create the effect of drunkenness in the accused the accused clearly could be said to have discharged the burden when be stated that he had consumed medicine. I am unable to accept the submissions made by the learned defence advocate. It is true that the degree of proof which the accused would require to rebut the presumption would not be the same which the prosecution would require to prove its case. All the same when the legal presumption has been laid down by a statute in my opinion it would not always be enough to rebut that presumption by a bare statement of the accused. There may be certain circumstances under which the explanation given by the accused in his statement recorded under sec. 342 of the Code of Criminal Procedure may appear to very plausible and reasonable and it would be open to the Court to rely on the same. All the same merely because the accused comes out with a bare statement that he had consumed medicine that itself cannot be said to discharge the burden laid down under law. In the instant case a question was put to the accused by the learned Magistrate about the evidence of Dr. Patel that he was smelling of alcohol and was under the influence of alcohol and that his blood was collected and sent to the chemical analyser for test. In reply to that question the accused admitted that he was examined. He however stated that he had not consumed alcohol and was not drunk. According to him he had consumed medicine and produced one empty bottle. It was not the say of the accused that he had consumed particular quantity from that bottle. He merely vaguely stated that he had consumed medicine. He did not name the medicine. He did not produce any bill showing that he had purchased that medicine from a dealer. He has not produced any prescription of a doctor showing that this medicine was prescribed to him. This bottle was produced in cross examination of the medical officer by his advocate. In the absence of a specific statement of the accused that he had consumed this medicine or that he had consumed particular quantity of this medicine it would not be proper to hold that he had discharged the burden laid down in sec. 66(2) of the Act by a mere statement that he had consumed medicine and not alcohol. The learned defence advocate referred to the case of State of Maharashtra v. Laxman Jairam's reported in A.I.R. 1962 Supreme Court 1204 in support of his say that bare statement of the accused would be sufficient to discharge the burden. In that case the breath of the accused was smelling of liquor at the time of his arrest and on examination of his blood it was found to contain 0.148%. w/v of ethyl alcohol. The accused in his statement recorded under sec. 342 of the Code of Criminal Procedure gave an explanation that he had not consumed prohibited alcohol but had taken 6 ounces of Tincture of Neem as he was used to take it. The doctor who examined the accused also deposed that consumption of 6 ounces of that substance would produce that amount of concentration in his blood. The Courts below accepted the explanation of the accused and acquitted him holding that no offence was committed by him. In an appeal it was held by the Supreme Court that.:-