STATE OF GUJARAT Vs. IBRAHIM MOHMAD

JUDGEMENT

(1.) MR . Bhatt next urged that if blood test rules are not properly followed, no presumption would be raised. He submitted that there is no evidence to show that the Medical Officer who extracted blood had used a sterilised syringe or that he had not applied alcohol or cleaned with sterilised water the skin of the accused before extracting blood. He urged that unless the Medical Officer categorically stated that he had followed all the Rules scrupulously, no presumption could be made that he in fact had followed the rules. He therefore, urged that these rules being mandatory, if they were not followed, no legal presumption could be made under Section 66(2) of the Act. In support of his submission, Mr. Bhatt referred to the case of Vrajlal Damodar v. State of Gujarat (1971) 12 Guj LR 68 wherein at page 69 it was observed as under:

(2.) THERE can be no quarrel with the propositions laid down by my learned Brother Thakkar, J., and with respect I am in entire agreement with his observations. But it should be remembered that in the case before him the doctor was not examined and the certificate did not disclose that the doctor had followed the provisions of R. 4(1). In the instant case, the doctor has been examined and the doctor has categorically stated that he extracted 5 c. c. of venuous blood end collected it in a phial as per rules. My learned Brother Thakkar, J., has stated that it would be sufficient for the doctor to say that he had complied with the requirements and followed the procedure prescribed by Rule 4(1). It therefore, fail to understand how this ruling would help the accused. In my opinion, it is not necessary for the doctor to repeat parrot like the provisions contained in Rule 4(1). If the doctor is aware of the provisions contained in the Bombay Blood Test Rules and if the doctor in his evidence before the court says that he had extracted blood as per the rules and if there is no cross -examination to the contrary. It cannot be presumed that the doctor had not followed the mandatory provisions contained in Blood Test Rules particularly Rule 4(1). Similarly the other case referred to by Mr. Bhatt would not help him. In the case of Malahavarao Bhagwandas Kharade v. State of Gujarat (1971) 12 Guj LR 956 : 1971 Cri LJ 1626 it was observed that the presumption under Section 66(2) of the Bombay Prohibition Act cannot be drawn unless the mandatory provisions of Rules 4 and 5 of the rules have been scrupulously followed. The legislature must have in its wisdom provided the period of seven days for the blood sample to reach the testing authority with a view to see that there may not be any tampering with the blood sample collected or that the alcohol contents of the sample of blood may not increase if it was kept in possession of the medical officer or his subordinate for an unduly long period.