NARAYAN KRISHNAJI MARULKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two matters have been heard together, as they raise common question of law in regard to the admissibility in evidence of a certificate issued by a Chemical Examiner under S. 129-A of the Bombay Prohibition Act, in cases in which there has been a breach of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, made by the State Government under Clause (w) in sub-section (2) of S. 143 of the Act. In Criminal Appeal No. 856 of 1962, the medical officer, to whom the accused had been sent for examination under sub-section (1) of S. 129-A of the Act, collected 3. C. C. of his blood instead of 5 c. c. as required by Rs. 4 of the rules referred to above. In the other case Criminal Revision application No. 749 of 1962, the blood of the accussed collected by the medical officer on 13-4-1961 was not sent to the Chemical Examiner until 6th July 1961. Under Rule 4 it should have been sent so as to reach the Chemical Examiner within seven days from the date of its collection. In both these cases the question therefore arises whether the certificate issued by the Chemical Examiner could be used as evidence of the facts stated in the certificate under S. 129-B of the Act.

(2.) IN order to answer this question it is necessary to refer to the relevant provisions of the Act. Sub-section (2) of S. 66 provides inter alia that where in any trial of an offence under Clause (b) of sub-section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0. 05 per cent weight in volume then the burden of proving that the liquor consumed was a medical or toilet preparation, or an antiseptic preparation or solution, or a flavoring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary. Under this section, therefore, if it is proved that the concentration of alcohol in the blood of the accused person was not less than 0. 05 per cent weight in volume, then a presumption is to be drawn that the liquor consumed by the accused was liquor, the consumption of which is prohibited under the Act and the burden is upon the accused to rebut that presumption. This section does not however say anything about the mode of proof or the manner in which the prosecution should prove that the concentration of alcohol in the blood of the accused person was not less than 0. 05 per cent. It does not say that the only way the prosecution can prove this fact is by producing the certificate of the Chemical Examiner open to the prosecution to prove this fact in any manner they are able to do so. It has been urged before us that no presumption can be drawn under this sub-section when the certificate issued by the Chemical Examiner is for any reason inadmissible in evidence. This argument cannot be accepted because, as I have just stated, sub-section (2) of S. 66 does not prescribe the manner in which the prosecution should prove the extent of the concentration of alcohol in the blood of the accused person.

(3.) SUB-SECTION (1) of S. 129-A empowers a Prohibition Officer duly empowered in this behalf or a Police Officer to produce the accused person before a registered medical practitioner authorized by the State Government in this behalf for the purppose of his being medically examined or for his blood being collected for being tested for determining the percentage of alcohol in the blood. Sub-section (2)is in the following terms: