JUDGMENT - R.K. JOSHI, J.:---I propose to dispose of these two applications by a common judgment as they are directed against the same order. Tulsidas Gangaram Raykar, the applicant in Criminal Revision Application No. 38 of 1975 was the original accused who took his trial before the learned Judicial Magistrate, First Class, Bassein, for offences punishable under sections 66(1)(b) and 85(1)(1) of the Bombay Prohibition Act. The learned Magistrate convicted him under both the counts and awarded R.I. for three months and a fine of Rs. 500/- in default R.I. for 15 days under the first count, whereas under the second count he was given R.I. for 7 days and a fine of Rs. 25/- in default R.I. for seven days more with a direction that the substantive sentence to run concurrently. On an appeal being preferred by the accused, it was dismissed by the learned Second Additional Sessions Judge, Thane, who, however, altered the conviction under the second count from section 85(1)(1) of section 85(1)(3). Subject to his modification the quantum of sentence was confirmed. Against this order the accused has approached this Count in revision, whereas the State has preferred the companion Revision Application No. 544 of 1975 for enhancement of sentence. The prosecution case in brief was that Mr. Mohite, Traffic Inspector of the S.T. Bus Depot at Bassein received information that one S.T. bus was parked on the road from Bassein town to Bassein Railway Station. Therefore, he went to the spot in another bus by about 9 p.m. on 8-7-1972, date of the alleged offence and found the accused, a driver of S.T. bus lying in the bus drunk. The accused, was taken to the Medical Officer on the directions of the Depot Manager Mr. Gogate and on examining him at about 11-15 p.m. the Medical Officer Dr. Kulkarni extracted blood and also issued a certificate that the accused was drunk. The Chemical Analyser, in due course found the blood sample to contain 0.62% w/v of ethyl alcohol. The defence of the accused was that he had consumed toddy and the high concentration may be due to it. The prosecution mainly relied upon the evidence of the Medical Officer Dr. Kulkarni who proved the certificate and also the report of the Chemical Analyser. The rest of the evidence comprising of the statement of the Traffic Inspector Mr. The defence of the accused was that he had consumed toddy and the high concentration may be due to it. The prosecution mainly relied upon the evidence of the Medical Officer Dr. Kulkarni who proved the certificate and also the report of the Chemical Analyser. The rest of the evidence comprising of the statement of the Traffic Inspector Mr. Mohite who took the initiative and the formal complainant Arvind who carried the sealed phial to the Chemical Analyser, was adduced to prove the preliminaries which were not seriously disputed by the accused. Mr. Rajani appearing for the accused has challenged the medical evidence as well as the report of the Chemical Analyser. According to him the certificate issued by the Medical Officer is unworthy of credence and the finding of the Chemical Analyser is vitiated by non-observance of the rules framed for collecting and dispatching the sample to the Chemical Analyser. To appreciate this frontal attack, reference would be necessary to the evidence of Dr. Kulkarni who examined the accused at about 11.15 p.m. on 8-7-1972. Dr. Kulkarni on referring to the production of the accused by a Police Constable with a yadi testified to the contents of his certificate and stated that the accused was smelling of alcohol, his speech was incoherent his guilt was unsteady and pupils were dilated. On these grounds he found him to be under the influence of alcohol. He further claimed to have taken his blood, although he maintained that he did not apply any spirit which raises the alcohol contents in blood. He made a couple of similar statements in examination-in-chief which deserve reproduction verbatim. They read thus : "I do not remember if I personally took the blood or it was taken in my presence by my compounder.......The said phial was sealed immediately. The sealing was also done in my presence. I do not remember if I did it personally. The phial was handed over to the police constable for taking it to the C.A." He produced the Chemical Analysers report at Ex. 7. It was elicited from him in the cross-examination that the accused could be under the influence if he had consumed fermented toddy. He further conceded that he did not examine the tongue of the accused. The phial was handed over to the police constable for taking it to the C.A." He produced the Chemical Analysers report at Ex. 7. It was elicited from him in the cross-examination that the accused could be under the influence if he had consumed fermented toddy. He further conceded that he did not examine the tongue of the accused. In the cross-examination he also gave a couple of admission which read thus--- "I do not remember the condition of the accused.......I will not be able to say whether the sealing and taking of blood were done by my compounder or by my assistant." On this evidence Mr. Rajani for the accused maintained that the rules under the Bombay Prohibition Act for taking and despatching such samples of blood are not adhered to they are mandatory in their nature and the failure to observe them is sufficient to demolish the prosecution case. In support of such a line of reasoning, he relied upon the observations in (Karansingh v. State of Gujarat)1, A.I.R. 1967 Gujarat 219. Mr. Damle appearing for the State rejoined with reference to the decision of out High Court in (Narayan Narishanaji v. State of Maharashtra)2, A.I.R. 1967 Bom. 213. that the provisions os Rule 4 are directory and, therefore, a fetish cannot be made of its non-observance. In the alternative Mr. Damle urged that ignoring the Chemical Analysers report, the conviction founded on the doctors finding could be sustained. Now, section 129-A of the Bombay Prohibition Act required persons to submit to medical examination. Any Prohibition Officer or Police Officer having a reasonable ground for believing that a person has consumed an introxicant for the purpose of proving the he has consumed an introxicant, can send him to the Medical Officer, on examination of such a person can collect blood and forward the same in the manner prescribed for test to the Chemical Analyser. Sub-section 8, no doubt further lays down that nothing in this section shall preclude the fact that the person accused of an offence has consumed an intoxicant from being proved otherwise than in accordance with the provisions of this section. In simpler words, it connotes that the Chemical Analysers report is not but the doctors evidence, stripped of the report, if otherwise convincing would be sufficient in the eyes of law to found a conviction. In simpler words, it connotes that the Chemical Analysers report is not but the doctors evidence, stripped of the report, if otherwise convincing would be sufficient in the eyes of law to found a conviction. The rules are called Bombay Prohibition (Medical Examination Blood Test) Rules, 1959. Rule 3 refers to the provisions of section 129-A of the Act and empowers the Medical Officer to collect the blood of such person and to furnish to the officer by whom such person was produced a certificate in form A containing the result of his examination. Rule 4 is more important and relevant for our purpose. It runs thus :--- "Manner of collection and forwarding of blood.---(1) The registered Medical Practioner shall use a syringe for the collection of the blood of the person produced before him under Rule 3. The syringe shall be sterilised by putting it in boiling water before it is used for the aforesaid purpose. He shall clean with sterilised water and rub the skin surface of that part of such persons body from which he intends to withdraw the blood. No alcohol shall be touched at any stage while withdrawing blood from the body of the person. He shall withdraw not less than 5 c.c. of venous blood in the syringe from the body of the person. The blood collection in the syringe shall then be transferred into a phial containing anticoagulant and preservative and the phial shall then be shaken vigorously to dissolve the anticongulant and preservative in the blood. The phial shall be labelled and its cap sealed by means of sealing wax with the official seal or the monogram of the registered Medical Practioner." Sub-rule (2) speaks of the despatch of the blood collected in this manner either by post or with a special messenger so as to reach the Chemical analyser within seven days from the date of its collection. The provisions of section 129-A and the Rules have been discussed at great length by the Supreme Court in (Ikha Kolhe v. State of Maharashtra)3, A.I.R. 1963 S.C. 1931. A pointed question was canvassed acts whether the report of the Chemical Analyser in cases covered by section 129-A was admissible or not and incidentally. Their Lordships had to deal with the provisions of section 129-A and these Rules. A pointed question was canvassed acts whether the report of the Chemical Analyser in cases covered by section 129-A was admissible or not and incidentally. Their Lordships had to deal with the provisions of section 129-A and these Rules. They pointed out that in the investigation of an offence under the Bombay Prohibition Act, examination of a person suspected by a Police Officer or Prohibition Officer of having consumed an intoxicant or of his blood may be carried out only in the manner prescribed by section 129-A. Report of the chemical examiner in respect of blood collected in the course of investigation of an offence under the Bombay Prohibition Act, otherwise than in manner set out in section 129-A cannot, therefore be used an evidence in the case. In his dissenting judgment His lordship Gupta, J. observed :--- "If evidence as regards alcoholic contents of the blood is allowed to be given even where the procedure laid down in section 129-A has not been followed the salutary provisions of the section would almost inevitable be widely disregarded." While speaking on Rules 3, 4 and 5, the majority view was that where the blood specimen was collected by a Medical Practioner before investigation and thereafter it was handed over to the Police Officer on demand by him and ultimately submitted to the Chemical Analyser for his examination it would be regarded as duly submitted within the meaning of section 510 Cri.P.C. But this aspect has little bearing on the issue involved the question being whether these rules are mandatory or merely directory. In the course of the judgment. Their Lordships have pointed out that without proof of the facts stated, the contents of the certificate or report may under section 129-B be proved by tendering the document. But it raised no presumption about consumption of liquor in contravention of the provisions of the Act. It is proof by evidence of concentration of alcohol in excess of the prescribed percentage whether it is in the manner provided by Clause (a) of Clause (b) of section 129-B or otherwise that gives rise to presumption under section 66(2). From the discussion in paragraphs 20 and 22 it would be further clear that the Supreme Court was inclined to take the view that these rules are mandatory. From the discussion in paragraphs 20 and 22 it would be further clear that the Supreme Court was inclined to take the view that these rules are mandatory. They have observed : "In the investigation of an offence under the Bombay Prohibition Act, examination of a person suspected by a Police Officer or Prohibition Officer of having consumed an intoxicant or of his blood may be carried out only in the manner prescribed by section 129-A." The emphasis is on the word only. Therefore, it is clear that if blood is collected and forwarded to the Chemical Analyser it has to comply with the provisions contained in the Rules. All these observed by Their Lordships further, in paragraph 22 deal with medical examination of a person who is produced before a registered Medical Practioner under sub-section (1) of section 129-A. Therefore, it would be clear that any violation of these Rules would vitiate the finding of fact recorded in the certificate by the Chemical Analyser. This was the view taken by a learned Single Judge of the Gujarat High Court in Kransinghs, case referred to above. However, Mr. Damle for the State has strongly relied upon a Division Bench ruling in Narayan Krishnaji v. State of Maharashtra. It was also a case under section 66(1)(b) of the Bombay Prohibition Act, wherein the blood was collected. In the course of the judgment their Lordships observed that having regard to the purpose for which the Rule has been made, it seems that if the blood is collected and forwarded to the chemical examiner in a manner which makes it possible to ascertain with accuracy the percentage of alcohol in the blood at the time of its collection, substantial compliance with the provisions of Rule 4 should be regarded as sufficient. The provisions of Rule 4, should be regarded as sufficient. The provisions of are directory and not mandatory. To hold otherwise may result in injustice in some cases. But in the root of the entire approach of such case, as a matter of fact, the observations of the Supreme Court do not appear to have been referred to in Narayans case be that it may, even on following with respects the following with respects the observations made by the learned Chief Justice in Narayans case, I am of the opinion that in the instant case prejudice is caused to the accused. I have reproduced the admissions given by the Medical Officer in extense in one of the foregoing paragraphs. The doctor is not certain who took the blood whether his assistant or the compounder. He does not say so many words that the syringe was sterlised, that preservatives were put in and that the phial was sealed in the manner laid down in the rule. From the admissions it appears that he has taken the matter so lightly that he has entrusted his job either to the compounder or to the assistant. Had the doctor been little firm about the role played by him, by the assistant or by the compounder in stating that under his supervision blood was collected, in some case, speaking for the Court, Chainani, C.J. observed that each case must be considered on its facts and in each cased it must be seen whether breach of the rule was such s had or might have affected the result of the test or had otherwise caused prejudice to the accused. If the breach of the rule was such that it as not likely to affect the test or the result of the analysis, it might be disregarded. In the reported case the emphasis was on the quantity of the blood. The rule required that 5 c.c. should be collected, but what was actually collected was 3 c.c. On this factual aspect an argument was advanced that the collection of a smaller quantity of blood has not caused any prejudice to the accused nor has it affected the result of the analysis. On this narrow approach the Division Bench made the observations which, with respect, appears to be somewhat broad based. The subsequent observations that each case must be decided on its facts and the Court should endeavour to find out whether prejudice is caused or is likely to be caused, seem to go by observing the provisions contained in the Rules; then something could have been said in favour of the prosecution. Under these circumstances, when the doctors evidence itself is shaky, it would be too much to presume in favour of the prosecution that all the formalities laid down in the rules were complied with. To speak the least, the doctors certificate and statements which run counter to each other are sufficient to introduce an element of doubt and to its benefit the accused would be entitled. To speak the least, the doctors certificate and statements which run counter to each other are sufficient to introduce an element of doubt and to its benefit the accused would be entitled. I am conscious, there remains the alternative strong hold of the prosecution, viz. the medical certificate of the doctor. But a question would arise when the doctor has taken the blood in this slipshod manner, whether his words should be acted upon without corroboration when he speaks to the contents of his own certificate. Moreover, some of these symptoms would appear in a present who has consumed toddy or formented toddy in a larger quantity. The doctors evidence being not beyond impeach it cannot be accepted when he speaks to the contents of this certificate. Under these circumstances the conviction of the accused cannot be sustained. In the result, the order of conviction and sentence passed against the accused is set aside. Fine if paid to be refunded to the accused. Rule in Criminal Revision application No. 38 of 1975 is made absolute. The companion revision application No. 544 of 1975 is dismissed. Rule discharged. Bail bonds stand cancelled. -----