MAHIJIBHAI LAKHABHAI v. STATE — 1980 DIGILAW 99 (GUJ)

M. K. SHAH, J. ( 1 ) ). The original accused in criminal case No. 1348 of 1979 decided by the learned Judicial Magistrate First Class Baroda on 28 November 1979 has preferred this criminal revision application against the order passed in criminal appeal No. 75 of 1979 by the learned Additional Sessions Judge Baroda on 28th February 1980 dismissing the appeal of the petitioner-accused against the order of the learned Magistrate convicting him for the offence under sec. 66 (J) (b) of the Bombay Prohibition Act (the Act) and sentencing him to R. I. for one month and fine of Rs. 20 in default further R. I. for 15 days. ( 2 ) THE accused was apprehended from a road and brought to Sayajiganj police station on 18th September 1978 at 10. 15 p. m. on a suspicion that he had consumed liquor. A complaint was lodged. He was sent to the S. S. G. Hospital Baroda for clinical examination He was examined by the Casualty Medical Officer Mr. Patel and in his opinion the accused had consumed liquor though he was not under the influence of the same at the relevant time. The medical officer then collected blood in a phial from the person of the accused and the same was forwarded to the chemical analyser Junagadh for analysis. On receipt of the report from the chemical analyser showing that the blood contained O. 2323 of W/v. of ethyl alcohol the accused was prosecuted for the offences under secs. 85 (1) (3) and 66 (1) (b) of the Act. The accused pleaded not guilty and claimed that he was innocent. ( 3 ) ON the evidence led before him the learned Magistrate while acquitting the accused for the offence under sec. 85 (1) (3) of the Act convicted him for the offence under sec. 66 (1) (b) of the Act and senteneed him to one months R. I. and fine of Rs. 200/in default further R. I. for 15 days. The accused aggrieved by this order filed criminal appeal No. 75 of 1979 which was heard and decided by the learned Additional Sessions Judge Baroda. He dismissed the said appeal by the impugned order dated 28th February 1980 and hence this criminal revision application by the original accused. ( 4 ) MR. 200/in default further R. I. for 15 days. The accused aggrieved by this order filed criminal appeal No. 75 of 1979 which was heard and decided by the learned Additional Sessions Judge Baroda. He dismissed the said appeal by the impugned order dated 28th February 1980 and hence this criminal revision application by the original accused. ( 4 ) MR. B. J. Shethna the learned advocate appearing for the petitioner-accused challenges the judgments of both the lower courts on various grounds. But he has particularly drawn my attention to two serious infirmities which go to the root of the matter and render the orders of conviction passed against the accused for the offence under sec. 66 (1) (b) not sustainable. The first one is that inspite of a specific mandate contained in Rule 4 of the Bombay Prohibition Medical Examination and Blood Test Rules 1959 (the Rules) that the cap of the phial in which the blood is collected shall be sealed by means of sealing wax with the official seal or the monogram of the registered medical practitioner in the instant case as it appears from the oral as well as the documentary evidence on record the seal affixed was not of the registered medical practitioner who had collected the blood that is Dr. Arvind K. Patel but the seal affixed was the seal of the S. S. G. Hospital (M. L. D) Baroda. A Division Bench of this court to which I was a party in criminal appeal No. 598 of 1975 decided on August 24 1978 has in a similar case held that the seal of the S. S. G. Hospital (M. L. D.) Baroda and not the seal of the medical practitioner who had collected the blood was a serious infirmity showing that the procedure of mandatory nature as prescribed by Rule 4 had not been followed. ( 5 ) THE second feature is that in the instant case anti-coagulant and preservative which had to be added were not added by the doctor himself. The doctor admitted that he received a ready phial from the laboratory where the same was prepared. No person from the Laboratory was examined to show that anti-coagulant and preservative were added. The doctor admitted that he had no personal knowledge about addition of the same and that he had received the bottle prepared from the laboratory. The doctor admitted that he received a ready phial from the laboratory where the same was prepared. No person from the Laboratory was examined to show that anti-coagulant and preservative were added. The doctor admitted that he had no personal knowledge about addition of the same and that he had received the bottle prepared from the laboratory. Rule 4 of the Rules inter alia requires that the blood collected in the syringe shall be transferred into a phial containing anti-coagulant and preservative. Admittedly this was not done by the doctor and as held by a Division Bench of this court in criminal appeal No. 711 of 1976 decided on 4th July 1978 this would be violation of the mandatory provisions contained in the said rule. This is therefore a second infirmity which is also of a fatal nature and vitiates the order of conviction. ( 6 ) MR. Dave the learned Public Prosecutor drew my attention to the Supreme Court decision in Kisan v. State of Mahasrahtra AIR 1979 S. C. 1824 The question before the Supreme Court in the said case was as to whether non-observance of the requirements of Rule 4 with regard to the quantity of blood to be collected would be fatal to the prosecution. The Supreme Court did observe that though Rule 4did require that the quantity of the blood to be collected shall not be less than 5 c. c. the definite report of the public analyst in the said case was that for his purpose the quantity sent was enough to determine the question whether the accused had consumed liquor. The Supreme Court therefore held that they were clearly of the opinion that the provisions of Rule 4 were merely directory and not mandatory and if the public analyst opined that the quantity below 5 c. c. was sufficient for the purpose of analysing the results then the rule must be deemed to have been substantially complied with. Mr. Dave wants me to read from these observations of the Supreme Court a ductum that all the requirements contained in Rule 4 are of directory nature and not mandatory in nature ( 7 ) I am unable to accept this submission of Mr. Dave. Mr. Dave wants me to read from these observations of the Supreme Court a ductum that all the requirements contained in Rule 4 are of directory nature and not mandatory in nature ( 7 ) I am unable to accept this submission of Mr. Dave. The Supreme Court was dealing only with a specific aspect of the quantity of blood to be collected and the effect thereof on the result of analysis if the blood below the specific quantity collected and it held that in a case in which the analyst was of the opinion that less than 5 c. c. was sufficient for analysis result then it should be assumed that there was substantial compliance with the rule. The Supreme Court did not deal with the entire rule and the other requirements of rule and therefore it cannot be said that the Supreme Court has laid down that all the provisions contained in Rule 4 are directory in nature and not mandatory. The result therefore will be the following order :- ( 8 ) RULE absolute. Order of conviction and sentence set aside. Fine if paid to be refunded. The accused acquitted of the offence for which he was convicted Bail bonds to be cancelled. Application allowed. .