JUDGMENT - H.W. DHABE, J.:---This is an appeal by the State against the acquittal of the respondent-accused, who was charged with the offence under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act. According to the prosecution, the respondent-accused went to the Dipali Lodge at about 6 p.m. on 4-8-1984 and rented cot therein entering his name himself in the Lodge Register. However, thereafter he immediately left the lodge and came to the Lodge again at about 8.30 p.m. The Manager of the Lodge Kautik Baburao Lokhande found that the respondent-accused was smelling of and was under the influence of alcohol and was not in a position to talk properly. 2. According to the prosecution, the accused again went away in the drunken condition and came to the Lodge at about 10 or 11 P.M. The Manager of the Lodge asked him to go to his bed. However, at about 1.30 or 1.45 A.M. on 5-8-1984. i.e. during the night hours, the accused got up and started shouting by sitting on the cot itself. He also started abusing the Manager Kautik (P.W. 2). Since the accused was disturbing other customers in the Hotel, the Manager tried to pacify him. He also talked with the police on phone. The accused, however, got up again and started abusing the Manager. Thereafter he went out to the Police Control Room and brought one policeman with him to the Lodge. He demanded his handbag containing some packets which the Manager had earlier refused to return by asking him to take it on the next day in the morning. However, when the accused accompanied by the policeman came, the said hand-bag was handed over to him, but the accused made a grievance that one packet was missing from the hand bag. He started abusing the Manager again. Thereafter he was taken in the police jeep to the Police Station. The PSI of the Police Station who also smelt of alcohol, sent him for medical examination Dr. Shivling (P.W. 3). examined him. He also extracted his blood for being sent to the Chemical Analyser. He gave the certificate that the accused was under the influence of alcohol. The Chemical Analyser to whom the blood sample of the accused was sent, his report. The prosecution was thereafter launched against the accused under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act, 1949. 3. He also extracted his blood for being sent to the Chemical Analyser. He gave the certificate that the accused was under the influence of alcohol. The Chemical Analyser to whom the blood sample of the accused was sent, his report. The prosecution was thereafter launched against the accused under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act, 1949. 3. The learned trial Court held that there was non-compliance with the mandatory requirements of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. According to him, the syringe used for extracting the blood was not sterilized. The blood extracted was only 2 ccs and not 5 ccs as required by Rule 4 of the said rules. He further found that there was no evidence to show that the blood collected in the syringe was transferred into a phial containing anticoagulant and preservative and that the phial was shaken vigorously to dissolve the anticoagulant and preservative in the blood. In view of the non-compliance with the above requirements of Rule 4, which he held to be mandatory relying upon some decisions of this Court referred to by him, he acquitted the accused of the offences punishable under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act. 4. The learned Counsel for the State has urged before me that Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 (for short 'the Rules'), is not mandatory, but is directory. In support of his contention, he has relied upon a Division Bench decision of this Court in the case of (Narayan v. State)1, A.I.R. 1967 Bombay 213. The learned Counsel for accused has, however, relied upon the judgement of the Single Judge of this Court in the case of (Tulsiram Raykar v. State of Maharashtra)2, 1977 U.C.R. (Bom.) 532 in support of his contention that the said Rule 4 is mandatory. He has also relied upon the decision of an other learned Single Judge of this Court in the case of (Shrawan v. State)3, 1979 Bom.C.R. 419 as also in the case of (Rangnath v. State)4, Mah.L.R. 1983 Bom. 226 in support of the above contention. He has also relied upon the decision of an other learned Single Judge of this Court in the case of (Shrawan v. State)3, 1979 Bom.C.R. 419 as also in the case of (Rangnath v. State)4, Mah.L.R. 1983 Bom. 226 in support of the above contention. A perusal of the above decision relied upon on behalf of the accused would show that certain decisions of the Gujarat High Court also on the same Rule 4 taking a view that the said rule is mandatory are relied upon in the said decision. How ever, the learned Single Judge of the Gujarat High Court in the case of (Vrajlal Damodar v. State)5, 1971 Guj. L.R. 68 has taken the view that although not every direction incorporated in Rule 4 is, mandatory, the requirement regarding taking precautions to secure that no alcohol shall be touched at any stage while withdrawing the blood from the body of the person and the requirement regarding dissolving the anti-coagulant and preservative in the blood are mandatory requirements. 5. In taking a view that the provisions of the Rule 4 are mandatory, the learned Single Judge of this Court in Tulsiram's case, (cited supra) has referred to the decision of the Supreme Court in the case of (Ukha Kolhe v. State)6, A.I.R. 1963 S.C. 1531. In my view the said decision does not directly deal with the question whether the provisions of Rule 4 are mandatory or directory. However, a subsequent decision of the Supreme Court in the case of (Kisan v. State)7, A.I.R. 1979 S.C. 1824 would show that the requirement of Rule 4 that not less than 5 ccs. of blood should be extracted is not mandatory of but is directory. In the face of the above contradictory judgements of this Court, it would have been necessary for me to place this matter before the Division Bench to find out whether Rule 4 is mandatory or directory or at any rate which of the requirements of rule 4 are mandatory or directory. However, I find that even assuming that Rule 4 is held to be directory in certain respects, there is not even substantial compliance with regard to its requirements which have been referred to by the learned trial Magistrate. 6. However, I find that even assuming that Rule 4 is held to be directory in certain respects, there is not even substantial compliance with regard to its requirements which have been referred to by the learned trial Magistrate. 6. As rightly observed by the learned Single Judge of he Gujarat High Court in the decisions cited supra, it is necessary that all precautions must be taken as required by rule 4 in extracting the blood. The requirements of Rule 4, whether they are complied with or not, substantially or strictly, as the case may be, must be proved by the prosecution. The relevant evidence in this regard is of Dr. Shivling (P.W. 3). He does not say in his evidence that the syringe was sterilized. He also does not say in his evidence that no alcohol was touched by him at any stage while extracting the blood from the body of the accused. He further does not say in his evidence that the blood collected in the syringe was transferred into a phial containing anti-coagulant and preservative and that the phial then shaken vigorously to dissolve the anti-coagulant and preservative in the blood. These are the important precautions which are necessary to be taken in collecting the blood to be sent for chemical analysis. I have pointedly asked the learned Counsel appearing for the State to satisfy me how here is substantial compliance with the above requirements of Rule 4 in the instant case. Except pointing out that the Chemical Analyser would not have been able to carry but his analysis and would not have sent his report and would have made a grievance about the blood being not in proper condition, no positive material is placed before me to show that there is substantial compliance with the above requirements of Rule 4. 7. In the instant case, the Chemical Analyser is not examined as a witness and his report is treated as evidence in view of the provisions of sections 129-A 129-B of the Bombay Prohibition Act. It is clear from the above sections that if his report is to be read as evidence, then it has to be in the manner prescribed under the above rules. It is open to the prosecution to establish its case without treating it as a presumptive evidence under the aforesaid provisions. It is clear from the above sections that if his report is to be read as evidence, then it has to be in the manner prescribed under the above rules. It is open to the prosecution to establish its case without treating it as a presumptive evidence under the aforesaid provisions. Even if the said report could be used as evidence under section 293 of the Code of Criminal Procedure the said report does not show whether the above requirements of the rule were substantially complied with. Only because the report shows that certain conclusions are arrived at, it would not follow that the blood was in proper condition and that the results of the chemical analysis were correct. The above submission on behalf of the State, therefore, deserves to be rejected. 8. The impugded order of the learned trial Court, although may or may not be wholly correct on the question of the mandatory nature of all the requirements of Rule 4, is correct so far as the question of even the substantial compliance with the above requirements is concerned. If the report of the chemical analysis cannot be accepted as correct for non-compliance with the above requirements of Rule 4, the presumption under section 66(2) of the Bombay Prohibition Act would not be available to the prosecution. The charge under section 66(1)(b) of the said Act must, therefore, fail. The accused was, therefore, rightly acquitted thereof by the learned trial Magistrate. 9. As regards the charge under section 85(1) of the Act, it is urged on behalf of the State that under section 85(2) of the Act there is a presumption that unless the contrary is proved, the person accused of an offence under section 85(1) would be presumed to have drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for medicinal purpose. The submission is that the minimum requirement prescribed under section 66(2) is not required for the presumption under section 85(2) of the Act. It is, therefore, his case that the prosecution could prove its case under section 85(1) by the evidence on record in the instant case. In this regard reliance is principally placed upon the evidence of the Medical Officer Dr. Shivling (P.W. 3) who has deposed in his evidence that the accused was under the influence of alcohol. It is, therefore, his case that the prosecution could prove its case under section 85(1) by the evidence on record in the instant case. In this regard reliance is principally placed upon the evidence of the Medical Officer Dr. Shivling (P.W. 3) who has deposed in his evidence that the accused was under the influence of alcohol. He has also given his certificate to that effect which has been proved in his evidence. It is further urged that the other requirements of section 85(1) about the disorderly behaviour of the accused is also proved by the evidence of Vishnu (P.W. 1), the Room Boy and Kautik (P.W. 2), the Manager of the said Dipali Lodge. 10. In answer to the above submissions on behalf of the State, it is urged on behalf of the accused that the identity of the person whose blood is extracted by the Medical Officer Dr. Shivling (P.W. 3) is not established in the instant case. It is also urged that the whole prosecution case against the accused is ill-founded because according to the prosecution the alleged incident had taken place between the night of 4th and 5th August, 1984 for which there is no evidence on record, but, on the contrary, the evidence of the Manager showed that the accused had come to his Lodge at about 6 p.m. on 3-8-1984. According to the Manager the alleged incident had taken place during the night of 3-8-1984 and 4-8-1984. In view of this material discrepancy, the submission is that the accused is entitled to get the benefit of doubt regarding the offence under section 85(1) of the Act. Since I am inclined to accept the above submission urged on behalf of the accused, it is not necessary for me to decide the question whether there was indentity of the accused established in extracting the blood by the doctor. 11. A perusal of the evidence of Kautik (P.W. 2) the Manager would show that he was on duty from 7 p.m. on 3-8-1984 to 10 a.m. on 4-8-1984. He has deposed that the incident in question has taken place during this period. The room Boy Vishnu (P.W. 1) in his examination-in-chief speaks about the time but does not speak of the date on which the incident had taken place. The relevant register of the said Dipali Lodge is not produced in evidence by the prosecution. He has deposed that the incident in question has taken place during this period. The room Boy Vishnu (P.W. 1) in his examination-in-chief speaks about the time but does not speak of the date on which the incident had taken place. The relevant register of the said Dipali Lodge is not produced in evidence by the prosecution. The statement of Vishnu (P.W. 1) in cross-examination that the incident took place on 4-8-1984 is very vogue because it can mean during the night between 3-8-1984 to 4-8-1984 or during the night between 4-8-1984 and 5-8-1984. However, the evidence of the Manager who was on duty and In whose presence the accused wrote his name in the Lodge Register has given precise and definite evidence that it was between the night of 3-8-1984 and 4-8-1984 that the incident had taken place. 12. It is however, submitted on behalf of the State that there is a mistake about the date and time of the incident. In support of the above submission, the allegation in the complaint which is no evidence and the evidence of the PSI and the doctor who says that he had examined the accused at about 6 A.M. on 5-8-1984 are relied upon. The evidence of the PSI and the doctor is of no assistance to the prosecution case because they were not the persons who were present on the spot at the time of the incident. They, therefore, cannot know when the accused came to the Lodge. To prove that the Manager of the Lodge Kautik (P.W. 2) has committed a mistake in his evidence it was necessary for the prosecution to clarify the same by producing other material or record such as the Lodge Register, in the absence of which the benefit of doubt as regards the discrepancy, if any, must go to the accused in this case. However, as already pointed out, the evidence of the Manager Kautik (P.W. 2) is very precise and definite on the question of the date and time of the incident. The accused is, therefore, liable to be acquitted of the offence punishable under section 85(1) of the Bombay Prohibition Act. 13. In the result, the instant appeal fails and is dismissed. The bail bond of the accused shall stand cancelled. Appeal dismissed. -------