CHAMANBHAI GANGARAM VANKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The question posed for consideration of the Full Bench pertains to the correct interpretation of the words official seal of the registered medical practitioner as employed by Rule 4 (1) of the Bombay Prohibition (Medical Examination Blood Test) Rules 1959 (hereinafter referred to as Blood Test Rules) framed under Section 143 (2) (w) of the Bombay Prohibition Act 1949 (hereinafter referred to as the Prohibition Act). Whether the concerned registered medical practitioner who collects blood from the accused has to use his own seal if any or whether he can utilise the official seal of the hospital to which he is attached is the vexed question which has to be answered on the interpretation of the aforesaid words employed in the last sentence of Rule 4 quoted above.

(2.) Before we proceed to grapple with the aforesaid question it would be advantageous to refer to the background facts which have led to the present reference to the Full Bench.

(3.) The applicant in the present revision application was charged under Section 66 (1) (b) and Section 85 (1) (3) of the Prohibition Act before the learned J.M.F.C. Kheralu. It was alleged that the applicant was found in a drunken state at about 1.10 p.m. On 30-11-1977 near the panchayat office situated at village Mandhropur in Kheralu taluka of Mehsana district. A written report was lodged in that connection by one Chimanbhai Virambhai in Kheralu police station. On the basis of the said report the complainant and other police constables were sent by the police station officer Kheralu to village Mandhropur. It is alleged that they found the applicant near the panchayat office and he was allegedly smelling of alcohol and was uttering abusive language. A panchnama of his physical condition was made and thereafter the applicant was sent br medical examination to the Government dispensary at Kherala. Dr. Dave working in the said dispensary examined the applicant and found that the applicant was smelling of alcohol that his gait was steady his speech was coherent but he was found to have allegedly consumed liquor. However he was not found to be under the influence of drink. Thereafter Dr. Dave collected 5 c.c. of veinous blood of the applicant and adding anti-coagulant and preservatives he sent the phial to the chemical analyser for blood analysis. The said phial was sealed and the the seal mentioning the words medicolegal Bombay was affixed on the phial. The chemical analyser who examined the blood sample so collected and sent to him issued a report Exhibit 14 where-in it was found that alcohol concentration was to the extent of 0.1426 per cent being weight volume of ethyl alcohol. It is on the basis of the aforesaid report that the learned Magistrate convicted the applicant of the offence under Section 66 (1) (b) as well as under Section 85 (1) (3) of the Prohibition Act read with Section 110 of the Bombay Police Act 1951. The applicant was sentenced to suffer R.I. for three months for the offence under Section 66 (1) (b) and to pay a fine of Rs. 500/- in default 30 days R.I.; while for the offence under Section 85 (1) (3) he was sentenced to suffer R. I. for 7 days and to pay a fine of Rs. 25/-in default 5 days R.I. He was also sentenced to pay Rs. 10/- as fine for the offence under Section 110 of the Bombay Police Act in default undergo 3 days R. I. All the aforesaid sentences were ordered to run concurrently. The applicant carried the matter in appeal to the court of Section at Mehsana being criminal appeal No. 123 of 1979. His appeal came to be dismissed on merits but the sentence for the offence punishable under Section 66 (1) (b) was varied by the learned Session Judge and instead of the sentence as passed by the learned Magistrate he reduced the sentence of R.I. to 15 days and fine of Rs. 100/- in default R.I. for 7 days. Rest of the order relating to the sentence for the offence punishable under Section 85 (1) (3) of the Prohibition Act was confirmed. Conviction under Section 110 of the Bombay Police Act was however altered to conviction under Section 117 of the Bombay Police Act and the sentence of fine of Rs. 10/- in default R.I. for 3 days was imposed. It is in these circumstances that the applicant landed in this court by way of the present revision application. Initially A. M. Surti J. granted bali pending admission to the applicant and there-after the revision application was admitted to final hearing by Bedarkar J. and the applicant was continued on the same bail fresh bonds. Thereafter this revision application reached final hearing before V. V. Bedarkar J. in October 1980. During the course of arguments before Bedarkar J. it was urged on behalf of the applicant that the seal affixed by the medical officer of Kheralu Government dispensary was not the official seal of the registered medical practitioner who had extracted blood from the vein of the accused and hence requirements of Rule 4(1) of the Blood Test Rules were not complied with and hence the sample of blood collected and which was sent for analysis to the chemical analyser was not collected according to rules. Consequently it was urged the report of the chemical analyst could not be relied upon. In support of the aforesaid contention reliance was placed on an unreported judgment of a Division Bench of this court consisting of D. P. Desai and M. K. Shah JJ. in criminal appeal No. 598 of 1975 decided on 24 In the said judgment amongst others the Division Bench speaking through M. K. Shah J. had found one infirmmity in the process of collection of sample of blood from the accused at the S. S. G. Hospital at Baroda that the seal of the medico-legal department of the hospital was affixed on the blood sample phial and the seal of the registered medical practitioner who had collected the blood was not affixed. Accordingly the seal was not found to be in conformity with the requirements of the blood test rules. Bedarkar J. was not inclined to agree with the aforesaid reasoning and the conclusion of the Division Bench and hence he referred the present revision application to a larger bench Accordingly this revision application was placed before a larger bench connsisting of A. M. Ahmadi and R. C. Mankad JJ. under the orders of the learned Chief Justice. The aforesaid Division Bench in its turn vide its order dated 19-12-1980 speaking through Ahmadi J. referred this matter to a still larger bench as in its view the question was required to be considered by a larger bench. It is in these circumstances that this revision application has been placed before the present Full Bench.