STATE Vs. BALWANT GANPATI MULYE

JUDGEMENT

(1.) THE question referred to us in these two criminal references is whether Section 129A of the Bombay Prohibition Act, which allows compulsion to be exercised for the medical examination of a person believed to have consumed an intoxicant and for the extraction of his blood for chemical analysis, violates the guarantee against self -incrimination contained in Article 20(3) of the Constitution. In both the cases the accused have been charged with offences under Section 66(1)(b) and Section 85 of the Prohibition Act, and the prosecution have sought to rely on evidence of the alcoholic content of the blood extracted from the veins of the accused. Along with these two criminal references, we have heard a criminal application filed under Article 228 of the Constitution, in which the petitioner, who is being tried by a Magistrate for an offence under Section 129A(5) of the Prohibition Act of offering resistance to the collection of his blood, prays that this Court should decide on the constitutional validity of that section and, after doing so, should either dispose of the case itself or remit it for disposal to the learned Magistrate. There being no appearance for the accused in the two criminal references, Mr. R. B. Kotwal was requested to appear amicus curiae and we are thankful for the assistance given by him. Mr. Shrikhande appeared for the petitioner in the criminal application, and the learned Advocate General was heard on behalf of the State in the three matters.

(2.) SECTION 129A was introduced in the Bombay Prohibition Act by Amending Act No. XII of 1959, and seems to be sequel to the decision of this Court in Deoman Shamji v. The State (1958) 61 Bom. L.R. 30. In that case, the accused had resisted by force the attempt of certain police officers to take him forcibly to a doctor for medical examination, and was charged on that account of an offence under Section 353, Indian Penal Code. He was acquitted by this Court on the ground that there was no legal provision justifying the use of force by the police officers to take the accused against his will to a doctor for medical examination. An additional argument was urged in that case on behalf of the accused that the act of the police officers amounted to the exercise of testimonial compulsion in violation of Article 20(3) of the Constitution; but the Court observed that it was not necessary to decide upon the soundness of that contention, and that the question may fall for determination if the Legislature made a provision for compulsory medical examination.

(3.) THIS was followed by Rules made by the State Government under Section 143 of the Act, called the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. The Rules and the form of certificate appended thereto make it clear that, while the medical practitioner has to examine every person brought to him, he may not collect and forward the blood of the person if he does not deem it necessary. The medical practitioner is to note down in the certificate the age and weight of the person and also whether his breath was or was not smelling of alcohol, whether his speech was or was not incoherent, whether his gait was steady or unsteady, and whether his pupils were normal or dilated. The Rules also provide that, when blood is collected, not less than 5 cc. of veinous blood is to be taken by inserting a sterilised syringe into the skin surface, which is cleaned with sterilised water but without the use of alcohol.