LAWS(GJH)-1967-2-7

DALSUKHJI VARVAJI Vs. STATE OF GUJARAT

Decided On February 01, 1967
DALSUKHJI VARVAJI Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) His Lordship after stating the facts further observed :

(2.) Now it is clear that in order to establish the guilt of the accused for an offence under sec. 66( b) of the Act the prosecution mainly relies on a report received from the Chemical Examiner in respect of the blood of the accused taken by Dr. Talati on the date of the offence and then sent for examination to the Chemical Examiner at Junagadh through the police officer. When that is so the point raised by Mr. Thakore assumes considerable importance as the guilt or otherwise of the accused will have to be determined on the strength of the report produced at Ex. 7 in the case. In that event presumption of his guilt arises under sec. 66(2) of the Act and since his explanation is disbelieved he would be liable under sec. 66(1)(b) of the Act. We have therefore to turn to the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 hereinafter to be referred to as the Rules and find out as to whether the requirements contemplated in rule 4 are of a mandatory character and a breach thereof would affect the evidence contained in the report produced by the Chemical Examiner. Such a point arose in a case of Karansingh Balubha v. The State of Gujarat VIII G. L R. 31 where it was held that if the prosecution relies solely on the report of the Chemical Analyser to prove the fact of concentration of blood which had been collected and sent to the Chemical Analyser in the course of an investigation of an offence under the Bombay Prohibition Act such certificate could be evidence only if the certificate had been obtained in the prescribed manner as laid down in sec. 129A of the Act. Then it was held that sec. 129A clause (2) of the Bombay Prohibition Act 1949 casts a duty on the registered medical practitioner before whom such a person was produced in the course of the investigation to examine such a person and collect and forward in the prescribed manner the blood of such person and on the Chemical Analyser to certify the result of the test of the blood forwarded to him stating the percentage of alcohol and such other particulars. Rules (4) and (5) of the Bombay Prohibition (Medical Examination and Blood Test) Rules 1959 which lay down the manner of collection and forwarding of blood are mandatory provisions. The Legislature had advisedly required the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter so that there might not be any scope of tempering with the sample phial. If that safeguard was disregarded and the sample phial was handed over to the investigating officer himself this salutary safeguard would be completely set at naught. In those circumstances the Court held in that case that the prosecution having not led any other evidence to prove the fact of concentration of the blood no presumption could be drawn under sec. 66(2) of the Act and it was not for the accused to rebut the burden raised by the presumption. On the basis of this decision it can be said that the Rules 4 and 5 are of a mandatory character and in the present case since the phial containing blood of the accused was sent by Dr. Talati through the investigating officer himself namely the complainant Head Constable the salutary safeguard providing for the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter has been completely disregarded.

(3.) Apart from that more important aspect of the case is that while Dr. Talati sent the phial containing the blood of the accused the-latter said to have been forwarded by him is not in the form B which requires to bear a facsimile of the seal or monogram used for sealing the phial of the sample blood. That safeguard has been for the obvious purpose of enabling the Chemical Analyser to ascertain that the phial of blood of the accused which reached him through the police officer bore exactly the same seal as the facsimile of the seal sent to him. With such a fasimile of the seal he would be able to compare the seal on the phial of the blood and in absence of any such thing in the letter sent by Dr. Talati he can be said to have disregarded the mandatory requirement for the safeguard provided in sub-rule (2) of Rule 4 of the Rules. Mr. Mehta the learned Assistant Govt. Pleader tried to point out from the judgment of the Court that the phial was accompanied by a forwarding letter Ex. 12 signed by Dr. Talati. The judgment then proceeds to show that Ex. 12 also bore a facsimile of the seal used for sealing the phial. We therefore looked for Ex. 12 into the original papers and all that we find is that not only it is not in Form B as required in the Rule but all that it contains is a certificate that blood sent to him for estimation of alcohol was drawn from Dalsukh in the presence of Head Constable-the complainant at 4-15 p.m. on 3-2-65. It bears the signature of Dr. Talati as also the signature of some witness. The other part of the form has not been filled up and it bears no signature. This certificate Ex. 12 does not show a facsimile of the seal said to have been used by Dr. Talati on the phial containing the blood of the accused. That part of the statement in the judgment appears to be therefor in correct. As I said above no such form B has been at all filled In as required under Rule 4 sub-rule (2) of the Rules and that has been a complete disregard of the mandatory rules made the Act. The same view has been taken by me in Criminal Revision Application No. 419 of 1965 decided on 17th January 1967. It follows therefrom that the Chemical Analyser had no opportunity to compare the seal found on the phial said to be containing the blood of the accused. One cannot consequently Out any such reliance on the report from the Chemical Analyser in that respect. When that is so the prosecution can be easily said to have failed to raise any presumption arising under sec. 66(2) of the Act and consequently the order of conviction passed against the accused in that respect is liable to be set aside. Conviction set aside.