KARANSINGH BALUBHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision application has been filed by the original accused against the order of the Sessions Judge Amreli dismissing his appeal against his conviction under sec. 66(1)(b) of the Bombay Prohibition Act 1949 hereinafter referred to as `the Act by the Judicial Magistrate First Class Bagasara-Wadia and for which he was sentenced to suffer rigorous imprisonment for three months and a fine of Rs. 500/in default to suffer rigorous imprisonment for one month.

(2.) The case of the prosecution was that the accused was driving S.T. Bus between Bhavnagar and Jamnagar on 27th November 1963 When the said bus stopped at Babra the accused and the driver of the motor bus had gone to a house near the bus stand and had consumed illicit liquor there. The driver had thereafter taken the motor bus along the road to Rajkot. The motor bus met with a serious accident in which several persons sitting in the bus were injured and one of them had died. The P.S.O. at Babra Police Station was one Abdullah Nurmahomed. On receiving the information at 3-50 P. M. about this accident this P. S. O. registered the offence and started investigation. As he learned that the driver of the bus and the accused were drunk he came to Babra for the inquiry. As the motor bus driver and the injured persons and the accused had been removed to the hospital the P. S. O. contacted the accused in the hospital. P. S. O. Abdullah found that the accused mouth was smelling of alcohol and his speech was incoherent. He called the Panchas and made a panchnama of his condition. Thereafter his blood and urine were collected by the doctor of the hospital for chemical analysis. The P.S.O. registered his complaint at Ex. 8. The doctor had entrusted blood and urine bottle to the P. S. O. who handed it over to the head constable Kashiram Raghavdas who took over the charge from head constable Abdullah. This P.S.O. Kashiram sent the two sealed bottles of accused blood and urine to the Chemical Analyser with constable Vamanrao Govindrao. The report of the Chemical Analyser which was sent to P. S. I. Babra on 16th December 1963 showed that as a result of the analysis carried on 30th November 1963 the blood concentration was 0.0644% of W/V of ethyl alcohol. From this concentration of alcohol in the blood the presumption under sec. 66(2) was invoked. The accused was chargesheeted for the offences under sec. 66(1)(b) and sec. 85 of the Act. The trial Court acquitted the accused of the charge under sec. 85 of the Act. It however convicted him for the offence under sec. 66(1)(b) of the Act and sentenced him as aforesaid. Against the said order the appeal of the accused was dismissed by the Sessions Judge Amreli. The accused has therefore filed the present revision.

(3.) Mr. Parikh for the accused stated that in the present case the prosecution has relied upon the certificate of the Chemical Analyser for proving the concentration of blood and on the basis of that report presumption under sec. 66(2) has been drawn against the accused. The prosecution has not tried to prove concentration of blood by any other method. He therefore argued that this report would be inadmissible in evidence as the mandatory requirements for collecting and forwarding the sample of blood to the Chemical Analyser laid down under sec.129A and Rule 4 of the Bombay Prohibition Medical Examination and Blood Test Rules 1959 hereinafter referred to as `the rules had not been complied with. Mr. Parikh strongly relied upon the decision of the Supreme Court in Ukha Kolhe v. The State of Maharashtra A. I. R. 1963 S. C. 1531. In that case the Supreme Court had interpreted the provisions of secs. 66(2) 129 and 129B of the Act. At page 1539 it was held by the Supreme Court that sec. 129A was intended primarily to provide for compelling a person reasonably believed by an officer investigating an offence under the Act or by a prohibition officer duly empowered to have consumed liquor to submit himself to medical examination and collection of blood. The two conditions which had to be fulfilled before a person was so compelled were (1) that it must be in the course of investigation of an offence under the Act and (2) that a prohibition officer duly empowered or a police officer had reasonable grounds for believing that the person had consumed liquor and that for the purpose of establishing that fact or for procuring evidence thereon it was necessary that his body be medically examined or his blood be collected. It is only when those two conditions existed that a person could be sent up before a registered medical practitioner for medical examination or collection of his blood. By sub-sec. (2) of sec. 129A the registered medical practitioner was obliged to examine a person produced before him and to collect and forward in the manner prescribed blood of such a person and to furnish to the officer a certificate in the prescribed form containing the result of his examination. The Chemical Analyser had then to certify the result of the test of the blood forwarded to him. As sub-sec. (8) expressly provided that proof of the fact that a person had consumed an intoxicant might be secured in a manner otherwise than as provided in sec. 129A and as even sec. 129B sub-clause (b) clearly provided that a report of a medical practitioner in respect of examination of a person or matter or thing duly submitted to him was admissible it was held that it was open to the prosecution to prove the fact of concentration of alcohol not only by the method provided in sec. 129B(a). It was pointed out that if an investigating officer or a prohibition officer duly empowered desired to have a person examined or his blood taken in the course of investigation for an offence under the Act and took steps which were prescribed under sec. 129A in that case the certificate of the registered medical practitioner and the report of the Chemical Analyser on the result of the test of blood forwarded to him would be admissible as evidence in a proceeding under the Act without examining either the medical practitioner or the chemical analyser. If however blood was collected otherwise than in the conditions set out in sec. 129A the fact of concentration of blood could be proved even by the other methods. It was further pointed out at page 1541 that the Legislature had made a certificate of examination under sec. 129A subsec. (1)(2) admissible without formal proof but the adoption of any other method of collection of evidence for proving this fact of concentration of blood was not precluded. Under sec. 129B(b) a report of registered medical practitioner could also establish such a fact. It was further pointed out that in a case which was not covered by sec. 129A the prosecution could also rely upon sec. 510 of the Code of Criminal Procedure. It was however pointed out finally at page 1542 that to the extent that sec. 129A provided a special machinery in respect of blood collected for the report of the Chemical Analyser in the course of investigation of the offence under the Act sec. 510 of the Code was superseded by sec. 129B. It was in terms held that a report of the Chemical Analyser in respect of blood collected in the course of investigation of an offence under the Act otherwise than in the manner set out in sec. 129A could not be used as evidence in the case. In the investigation of an offence under the Act examination of person suspected by police officer or a prohibition officer of having consumed intoxicant or of his blood must be carried out in the manner prescribed by sec. 129A and the evidence to prove the fact disclosed thereby would be the certificate or the examination viva voce of the registered medical practitioner or the Chemical Analyser for examination in the course of investigation under the Act of the person so suspected or of his blood had been by the clearest implication of the law to be carried out in the manner laid down or not at all. No doubt before their Lordships the case was not one of an investigation under the Act and therefore the report was held to be admissible under sec. 510 of the Code.