Pandit Ukha Kolhe Vs. The State of
Maharashtra [1963] INSC 28 (11 February 1963)
11/02/1963 SHAH, J.C.
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1963 AIR 1531 1964 SCR (1) 926
CITATOR INFO:
D 1965 SC1887 (3,5,7 ETC.,) D 1966 SC 356 (6)
RF 1972 SC1738 (31)
ACT:
Criminal Trial-Offence under Prohibition
Act-Blood taken before start of investigation-Report of Chemical ExaminerProcedure
prescribed not followed-Admissibility of report-Re-trial, when can be
ordered-Bombay Prohibition Act, 1949 (Bom. 25 of 1949) ss. 66, 129A, 129B-Code
of Criminal Procedure, 1898 (Act 5 of 1898), ss. 428, 510.
HEADNOTE:
On account of injuries received in a motor
accident the appellant was taken to the hospital at 6 A. M. on April 3, 1961.
As he was found smelling of alcohol, a specimen of his blood was taken and
collected in a phial. Subsequently, when investigation started this phial was
taken by the Investigation Officer on April 13 and sent to the Chemical Examiner
on April 18. On examination, it was found to have a concentration of alcohol in
excess of that mentioned in s.
66 (2) of Bombay Prohibition Act. The trial
Court convicted the appellant relying upon the presumption arising on the
report -of the Chemical Examiner. On appeal, the Sessions judge found that no
evidence had been produced regarding the safe custody of the phial from April 3
to April 18, regarding its storage at a place where it was not liable to
deteriorate and regarding its delivery to the Chemical Examiner, and ordered a
retrial. This order was upheld by the High Court. The appellant contended (i)
that the report of the Chemical Examiner was not admissible in evidence at the
trial of the appellant for an offence under the Bombay Prohibition Act as the
blood had not been collected in the manner prescribed by s. 129 A, and (ii)
that the order for a fresh trial was illegal.
Held, (per Sinha, C. J., Gajendragadkar,
Wanchoo and Shah jj., Das Gupta, J. contra) that the report of the Chemical Examiner
was admissible in evidence. Section 129A was intended primarily for compelling
a person to submit himself for medical examination and for collection of blood;
this power could be exercised only in the course of investigation of an offence
under the Act and only when a 927 Prohibition Officer or a Police Officer had
reasonable ground for believing that a person bad consumed liquor. If the
examination of blood is made otherwise than in accordance with s. 129 A the
result may still be proved by virtue of subs. (8) to s. 129 A and there is
nothing in s.
129A or s. 129B which precludes proof of that
fact if it tends to establish that the person had consumed illicit liquor. By
enacting ss. 129 A and 129B the law provided one method of collection of evidence
in respect of an offence under s. 66 (2) but it did not thereby exclude other
methods. Bombay Act No. 12 of 1959 which introduced ss. 129 A and 129 B and
which had been reserved for the consideration of the President and had received
his assent prevailed, in the State of Bombay, over s. 510 of the Code of
Criminal Procedure to the extent of inconsistency between the two. Accordingly,
the report of a Chemical Examiner in respect of blood collected in the course
of investigation of an offence under the Act otherwise than in the manner set
out in s. 129A cannot be used in evidence, but a report in respect of blood
collected at a time when no investigation was pending or at the instance of a
Police Officer or a Prohibition Officer, is admissible under s. 510 of the
Code.
Nazir Ahmad v. The King Emperor, (1936) L. R.
63 I.A. 372, Taylor v. Taylor, (1875) 1 Ch. D. 426, Deep Chand v. State of
Uttar Pradesh, [1959] Supp. 2 S.C. R. 8 and Ch.
Tikaramji v. State of Uttar Pradesh, [1956]
S. C. R. 393, referred to.
Held, further, that the order for retrial was
bad and that the Sessions judge should himself take additional evidence in
respect of the safe custody etc. of the phial of blood.
An order for retrial of a criminal case is
made only in exceptional cases as it "pose.-, the accused to another trial
affording the prosecution an opportunity to rectify infirmities disclosed at
the earlier trial. An order for retrial is not made unless the appellate court
is satisfied that the trial court had no jurisdiction to try the case, or that
the trial was vitiated by serious illegalities or irregularities or on account
of the misconception of the nature of the proceedings there has been no real
trial or that any of the parties had, for reasons over which it had,, no control,
been prevented from producing material evidence.
Since the Sessions judge was of the view that
"additional evidence was necessary" he should have proceeded under
s.428 (1) of the Code.
Ramanlal Rathi v. State, A.I.R. (1931) Cal...
305, referred to.
928 Per Das Gupta, J.-The report of the
Chemical Examiner in respect of blood taken not in accordance with the
provisions of s. 129A was not admissible. In view of subs. (8) of s. 129A the
fact that a person has consumed an intoxicant may be proved by evidence other
than that made available under s. 129A; but for the determination of the
percentage of alcohol in the blood no other procedure except that provided by
s. 129 A was permisible. Section 66 (2), which provided for the drawing of a
presumption in favour of the prosecution if the percentage of alcohol found in
the blood of an accused exceeded that mentioned in the section, was introduced
in the Act by the very Amending Act which introduced s. 129 A. It was
reasonable to infer that the legislature intended the presumption under s. 66
(2) to be drawn only in cases where tile procedure prescribed by S. 129A had
been followed.
Nazir Ahmad v. The King Emperor, (1936) L. R.
63 I. A.
372 relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 131 of 1962.
Appeal by special leave from the judgment and
order dated June 13, 1962, of the Bombay High Court in Criminal Revision
Application No. 402 of 1962.
R.K. Garg, S. C. Agarwala and M. K.
Ramamurthi, for the appellant.
C. K. Daphtary,Solicitor-General of India, N.
S. Bindra and R. H. Dhebar, for the respondent.
1963. February 11. The following judgments
were delivered by SHAH,.J.-On April 3, 1961 at about 2-30 A.M., a motor vehicle
fell into a ditch by the side of a highway near Edlabad, District Jalgaon, and
all the occupants of the vehicle were injured. One Mohmad Yusuf who was in that
vehicle died of the injuries. The appellant was tried before the judicial
Magistrate, First Class, Bhusawal, 929 for offences of rash and negligent
driving when he was under the influence of liquor and thereby causing the death
of Mohmad Yusuf and injuries to four other occupants of the motor vehicle and
also for offences under the motor Vehicles Act. The Trial Magistrate held that
the evidence was not sufficient to prove that the appellant was driving the
motor vehicle at the time of the mishap, and acquitted the appellant of the
offences under the Motor Vehicles Act and also under the Indian Penal Code. But
he held that the evidence established that the appellant had at the material
time consumed illicit liquor and had thereby committed an offence punishable
under s. 66 (b) of the Bombay Prohibition Act. He accordingly convicted
theappellant, and sentenced him to suffer rigorous imprisonment for three
months and to pay a fine of Rs. 500/and in default of payment of fine, to
suffer rigorous imprisonment for two months. On appeal to the Court of Session,
the order of conviction was set aside, and a retrial was directed, because in
the view of the Court there had not been a "fair and full" trial. A
revision application filed against the order in the High Court of Bombay was
summarily dismissed. The appellant has appealed to this Court with special
leave against the order of the High Court.
The case for the prosecution, in so far as it
relates to the charge for the offence under the Bombay Prohibition Act, is
briefly this: Early in the morning of April 3, 1961 as a result of motor
vehicle Temp. No. .170 B. M. B. falling in a ditch near Edlabad several persons
including the appellant were injured. At about 6 a. m., the appellant reached
the Civil Hospital, jalgaon. On Dr. Kulkarni, Resident Medical Officer of the
Hospital informing him about the death of Mohmad Yusuf, the appellant fainted
and he was admitted as an indoor patient in the Hospital. On examination, the
930 appellant was found "smelling of alcohol". Dr. Kulkarni thereupon
directed one Dr. Rote to collect a specimen of blood from the body of the
appellant, and accordingly some venus blood was collected in a phial. The phial
was closed in the presence of Dr. Rote and sealed. But before treatment could
be given to the appellant, he was discharged from the Hospital at the request
of some persons who accompanied him. The blood specimen remained in the
Hospital. Information about the mishap to the motor vehicle was received by the
police at Jalgaon at about 8 a. m., on that day and a case was registered
against the appellant and four other persons for certain offences under the
Indian Penal Code and the Motor Vehicles Act, and on receiving information that
all the incumbents of the motor vehicle were at the time of the mishap in a
state of intoxication, also under s. 66 (b) of the Bombay Prohibition Act XXV
of 1949. The Officer in charge of the investigation sent the appellant to the
Civil Hospital for medical examination.
The condition of the appellant was found by
Dr. Kulkarni to be normal. A specimen of the appellant's blood was again
collected at about 11 a. m., and was sent to the Chemical Analyser, for
examination and report. On April 12, 1961, the Sub-Inspector in charge of the
investigation came to learn that a specimen of blood of the appellant had been
taken by the Hospital authorities early in the morning of April 3,1961. On
demand by the police officer the Medical Officer delivered the phial containing
the blood specimen together with a certificate from Dr. Rote that a blood
specimen of the appellant was collected by him at 6 a.m., on April 3, 1961. The
investigating officer affixed an additional seal on the package and forwarded
the same with a special messenger to the Chemical Examiner on April 18, 1961.
On examination of the contents of the phial it was found that there was
concentration of alcohol to the extent of 0.069 per 931 cent w/v ethyl alcohol.
This concentration being in excess of the concentration mentioned in s. 66 (2)
of the Bombay Prohibition Act, a complaint for the offence under the Bombay
Prohibition Act was also lodged against the appellant.
At the trial, on behalf of the prosecution
among others were examined Dr. Kulkarni, Dr. Rote and the investigating
officer. The report of the Chemical Examiner was also tendered in evidence. But
the special messenger who carried the sample was not examined; nor was any
evidence given about the place where and the condition in which the phial
containing the blood specimen was kept in the Hospital. The appellant in his
statement to the Court denied that concentration of alcohol detected by the
Chemical Examiner from the specimen taken by Dr. Rote exceeded 0.069 per cent
w/v. He admitted that on April 3, 1961 he was in the Civil Hospital in the
early morning, that when he was told by Dr.
Kulkarni about the death of Mohamad Yusuf he
"suffered a shock"., that thereafter he went home immediately, and
during that time his" mental condition was not good". He further
stated :
"I fell unconscious. I was
semi-conscious.
During that time my relations and friends
gave me certain liquid as a sort of medicine. I -felt like that. Then I was
carried to the hospital in the same condition. As I regained my consciousness I
told doctor that I want to leave the hospital because my friend was dead in
hospital and as I did not feel it proper to live in hospital under such
circumstances, so I left the hospital. I do not know who gave me medicine when
I fell down on the road, after I had left the hospital. This was, when I left
the hospital for my home." The defence of the appellant therefore was that
when he was informed about the death of Mohamad Yusuf 932 he fainted and some medicinal
preparation was administered to him by his friends to revive him and thereafter
he was carried to the Civil Hospital. He has not admitted that any specimen of
blood from his body was collected, but it appears to be his defence that if
excessive concentration of alcohol was traced in the blood it was the result of
some medicinal preparation administered to him by his friends.
Section 66(1) of the Bombay Prohibition Act,
in so far as it is material, provides :
"(1) Whoever in contravention of the
provisions of this Act, or any rule, regulation, or order made, or of any
licence, permit, pass or authorization issued, thereunder(a) x x x (b)
consumes, uses, possesses or transports any intoxicant...............
shall, on conviction, be punished "(i)
for a first offence, with imprisonment for a term which may extend to six
months and with fine which may extend to one thousand rupees :"
'Intoxicant' is defined in s. 2(22) as meaning "any liquor, intoxicating
drug, opium or any other substance, which the State Government may, by
notification in the Official Gazette, declare to be an intoxicant; and by s.
2(24) liquor includes "(a) spirits, denatured spirits, wine, beer, toddy
and all liquids consisting of or containing alcohol ; and (b) any other intoxicating
substance which the State Government may, by notification in the Official
Gazette, declare to be liquor for the purposes of this Act." The
contravention referred to in s. 66(b) is the contravention of acts prescribed
by s.13. That section prohibits, amongst other acts, 933 consumption and use of
liquor. The provisions of s. 13 which occur in Chap. III are subject to a
general exception contained in s. 11, which provides, in so far as it is
material, that :
"Notwithstanding anything contained in
the following provisions of this Chapter, it shall be lawful to import, export,
transport, manufacture, bottle, sell, buy, possess, use or consume any
intoxicant...... in the manner and to the extent provided by the provisions of
this Act or any rules, regulations or orders made or in accordance with the
terms and conditions of a licence, permit, pass or authorization granted there under."
The validity of the provisions of the Act as originally enacted was considered
by the Court in The State of Bombay v. F. N. Balsara (1), and it was held inter
alia that cl.
(b) of s. 13, in so far as it affected the
consumption or use of medicinal and toilet preparations containing alcohol was
invalid. The Legislature of the Bombay State thereafter amended the Act by
enacting s. 24A which provided a general exception in respect of toilet,
medicinal and antiseptic preparations and flavouring extract', essence or
syrup.
As a consequence of the amendment made by s.
24A the operation of the prohibition contained in s. 13 and the other sections
was limited in two respects : (1) by s. II where the contravention was in
pursuance of and in the manner and to the extent provided by the provisions of
the Act or any rules or regulations or orders made or in accordance with the
terms and conditions of a licence, permit, pass or authorisation granted; and
(2) in respect of preparations and materials exempted under s. 24A. When,
therefore, a person was charged with consuming any intoxicant in contravention
of the provisions of the Act or of the rules, regulations or orders made or of
(1)[1951] S.C.R. 682.
934 any licence, pass, permit or
authorisation under s. 66(i)(b), it had to be established that the
contravention was not protected either by s. 11 or s. 24A. It is clear that
direct evidence about the consumption of liquor in contravention of the
provisions of the Act, when such consumption is prohibited, would not
ordinarily be forthcoming. Mere evidence that the person charged with consuming
or using an intoxicant was in a state of intoxication would not be sufficient
to bring home the charge under s. 66(1)(b). That is illustrated by the decision
of this Court in Behram Khurshed Pesikaka v. The State of Bombay (1). It was
held in that case that the effect of the declaration in The state of Bombay v.
F. N. Balsara (2), that cl. (b) of s. 13 of the Bombay Prohibition Act is void
under Art. 13(1) of the Constitution in so far as it effects the consumption or
use of liquid medicinal or toilet preparations containing alcohol is to render
a part of s. 13(b) of the Bombay Prohibition Act inoperative and ineffectual
and thus unenforceable, and that the bare circumstance that a citizen accused
of an offence under s. 66(b) of the Bombay Prohibition Act is smelling of
alcohol is compatible with his innocence as well as his guilt: the smell of
alcohol may be due to the fact that the accused had contravened the enforceable
part of s. 13(b) of the Bombay Prohibition Act, or it may well be due to the
fact that he had taken alcohol which fell under the unenforceable and
inoperative part of the section. The onus therefore lies on the prosecution to
prove that the alcohol of which he was found smelling came under the category
of prohibited alcohol and therefore within the enforceable part of s. 13(b).
The Legislature of the State of Bombay being
faced with this interpretation imposing a serious burden which the prosecution
had to undertake in trials for offences of consumption or use of liquor
contrary to the provisions of the Act, for due (1) [1955] 1 S.C.R. 613, (2)
[1951] S.C.R. 682.
935 enforcement of the law and to prevent
evasion, enacted certain additional provisions by Bombay Act 12 of 1959. By
that Act, s. 66 was renumbered s. 66(1) and sub-s. (2) was added thereto in the
following form "Subject to the provisions of sub-section (3), 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
provided 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 medicinal or toilet preparation, or an
antiseptic preparation or solution, or a flavouring 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." By sub-s. (3) the provisions of sub-s. (2) are not to apply to
consumption of liquor by indoor patients during the period they are being
treated in a" hospital, convalescent home, nursinog home, or duspensary,
maintained or supported by Government or a local authority, or by charity, or
by such other persons in such other institutions, or in such circumstances as
may be prescribed. The result of this amendment was to make, except in the
cases expressly provided in cl. (3) concentration of alcohol in excess of 0.05
per cent, weight in volume in blood presumptive evidence of' consumption of
liquor in contravention of the provisions of the Act and the burden of proving
that the liquor consumed was a medicinal or toilet preparation or an antiseptic
preparation or solution, or a 936 flavouring extract, essence or syrup, lay
upon the person charged with the offence.
The case of the prosecution in this case
rested primarily upon the report of the Chemical Examiner certifying that
alcohol concentration in the blood of the appellant which was extracted at 6 a.
m. on April 3, 1961, was in excess of the percentage prescribed by s. 66 (2).
The prosecution had, therefore, to establish that the specimen examined by the
Chemical Examiner was the specimen of blood collected from the body of the appellant
and that the specimen disclosed concentration of alcohol in excess of the
permissible limits. It is somewhat unfortunate that the trial Magistrate did
not appreciate that the only important piece of evidence on which the
prosecution case against the appellant rested was contained in the report of
the Chemical Examiner. There is no dispute that the appellant went to the Civil
Hospital early in the morning of April 3, 1961.
He has admitted that fact in his statement
before the Court.
Dr. Kulkarni has deposed that on being told
about the death of Mohamad Yusuf the appellant fainted and was admitted to the
Hospital, and that he found that the appellant was smelling of alcohol. Dr.
Kulkarni has stated that no treatment was given to the appellant and there is
no suggestion by the appellant that he was given any treatment in the Hospital.
Dr. Rote was asked by Dr. Kulkarni to collect a specimen of blood from the body
of the appellant, and a blood specimen was accordingly taken and the phial was
sealed in his presence by a laboratory servant. Dr. Rote stated in
cross-examination that no methyl spirit was applied before extracting blood.
The certificate of Dr.
Rote dated April 13, 1961, that he had
collected blood from the body of tile appellant on the morning of April 3,
1961, and that the bottle containing the blood was sealed in his presence
corroborates the statement.
937 But there is no evidence on the record
about the person in whose custody this phial remained till it was handed over
to the Sub-Inspector of police on April 13, 1961, when demanded. There is also
no evidence about the precautions taken to ensure against tampering with the
contents of the phial when it was in the Civil Hospital and later in the
custody of the police between April 13, 1961, and April 18, 1961. Even the
special messenger with whom the phial was sent to the Chemical Examiner was not
examined : and Ext. 43 which was the acknowledgment signed by some person
purporting to belong to the establishment of the Chemical Examiner does not
bear the official designation of that person, The report of the Chemical
Examiner mentions that a sealed phial was received from the police officer by
letter No. C/010 of 1961 dated April 18, 1961, but there is no evidence that
the seat was the one which was affixed by Dr.
Rote on the phial. These undoubtedly were
defects in the prosecution evidence which appear to have occurred on account of
insufficient appredation of the character of the burden which the prosecution
undertakes in proving a case of an offence tinder s. 66 (1) (b) relying upon
the presumption tinder s. 66 (2).
It was assumed by the Trial Magistrate that
the phial containing blood collected by Dr. Rote was kept in a safe place and
could not be tampered with that it was kept in such a place that it was not
liable to deteriorate, that thereafter this phial also remained with the police
at a place where it could not be tampered with, and that the phial sealed by
Dr. Rote was delivered by the special messenger to the establishment of the Chemical
Examiner and that the same phial was examined by the Chemical Examiner, and
that between April 3, 1961, and April 19, '1961, when the contents of the phial
were Subjected to chemical examination, they had not 938 deteriorated. Both the
Prosecutor and counsel for the appellant appear to have contributed to the
somewhat slipshod trial of the case. Dr. Kulkarni and Dr. Rote were examined as
witnesses for the prosecution, but no examination or cross-examination of
either was directed in respect of these important matters, and even to the
investigating officer, no questions seeking to elicit information on these
matters were asked. The report of the chemical examination of the blood
specimen collected at 11 a. m. on April 3, 1961, was also not tendered in
evidence by the prosecution though the same was demanded.
The Sessions judge pointed out some of these
infirmities. He arrived at the conclusion that as the examination of the blood
specimen taken at 6 a. m. on April 3, 1961, was not obtained in the course of
investigation at the direction of the investigating officer, who had reasonable
grounds for believing that the appellant had consumed an intoxicant, the
"presumption under s. 129B" could not come to the aid of the
prosecution. The learned judge observed-and it was conceded at the Bar before
him -that the prosecution could still establish that the appellant had consumed
liquor otherwise than by a certificate obtained in respect of examination of
the blood concentration procured ill the manner provided under cls.
(1) and (2) of s. 129A, but as the trial
Magistrate had relied merely upon the presumption under s. 66 (2) and had not
analysed the evidence in that light, nor had he directed his attention to the
question whether the other evidence on the record, a part from the presumption,
established such case, the order of the conviction could not be sustained.
Observing that there had not been a
"fair and full trial" in respect of the offence under the Bombay
Prohibition Act, the Sessions judge set aside the order of the trial Magistrate
and directed that the case be sent back to the Migistrate and be retried in the
939 light of the observations made by him in the course of the judgment.
An order for retrial of a criminal case is
made in exceptional cases, and not unless the appellate Court is satisfied that
the Court trying the proceeding had no jurisdiction to try it or that the trial
was vitiated by serious illegalities or irregularities or on account of
misconception of the nature of the proceedings and on that account in substance
there had been no real trial or that the Prosecutor or an accused was, for
reasons over which he had no control, prevented from leading or tendering
evidence material to the charge, and in the interests of justice the appellate
Court deems it appropriate, having regard to the circumstances of the case,
that the accused should be put on his trial again. An order of re-trial wipes
out from the record the earlier proceeding, and exposes the person accused to
another trial which affords the prosecutor an opportunity to rectify the
infirmities disclosed in the earlier trial, and will not ordinarily be
countenanced when it is made merely to enable the prosecutor to lead evidence
which he could but has not cared to lead either on account of insufficient
appreciation of the nature of the case or for other reasons. Harries, C. J.,in
Ramanlal Rathi v. The State (1), observed :
"If at the end of a criminal prosecution
the evidence leaves the Court in doubt as to the guilt of the accused the
latter is entitled to a. verdict of not guilty. A retrial may be ordered when
the original trial has not been satisfactory for particular reasons, for
example, if evidence had been wrongly rejected which should have been admitted,
or admitted when it should have been rejected, or the Court had refused to hear
certain witness who should have been heard. But retrial cannot be ordered on
the ground that, the prosecution did not (1) A.I.R. (1951) Cal. 305.
940 produce the proper evidence and did not
know how to prove their case." In the present case, undoubtedly the trial
before the Magistrate suffered from irregularities which we have already set
out. The evidence, such as was led, was deficient in important respects; but
that could not be a sufficient ground for directing a retrial. If the Sessions
judge thought that in the interests of justice and for a just and proper
decision of the case it was necessary that additional evidence should be
brought on the record he should have, instead of directing a retrial and
reopening the entire proceedings resorted to the procedure prescribed by s. 428
(i) or the Code of Criminal Procedure. There is no doubt that if the ends of
justice require, the appellate Court should exercise its power under the said
section.
The observations made by the Sessions judge
do clearly suggest that in this case he was of the view that "additional
evidence was necessary,". The examination or both Dr. Rote and Dr.
Kulkarni was perfunctory. What steps were taken by Dr. Rote after he collected
the blood specimen and sealed the phial, to whom he entrusted the phial, where
it was stored and what steps were taken for preventing interference,
deterioration or tampering with the same, are matters which were never
investigated. Neither the prosecutor nor counsel for the defence asked any
Question in that behalf, and even the trial Magistrate did not take any steps
to obtain information in that behalf. The method of storage of the phial when
it was in the custody of the police officers and its dealing therewith when it
was in the custody of the special messenger have been left in obscurity. But
the evidence does disclose that the phial wassealed in the presence of Dr.
Rote, and the report ofthe Chemical Examiner also disclosed that he had opened
a phial which was sealed and that the sea) was intact, with the device
"Medico-Legal 941 Bombay". Evidence regarding the_ dealing With the
phial since it was scaled and it was submitted for examination of the Chemical
Examiner may appear to be formal; but it has still to be led in a criminal case
to discharge the burden which lap upon the prosecution. Such evidence would
appear to be "necessary" within the meaning of s. 428 (1) of the Code
of Criminal Procedure, and may, having regard to the circumstances, be permitted
to be led in appeal. The attention of the Magistrate does not appear to have
been directed to the question whether the time which elapsed between the
collection of blood and its examination had any material bearing on the result
of the examination. The Court would normally require some evidence that the
concentration of alcohol is not due to deterioration or delay in the
examination of the contents of the phial or to exposure to weather conditions,
before raising the presumption under s. 66 (2). An opportunity to lead this
evidence may be given under s. 428, not with a view to fill up lacunae in the
evidence but to regularise the trial of the accused and to ensure that the case
is established against him beyond reasonable doubt, more so when for the
purpose of' convicting the accused reliance is sought -to be placed upon a
presumption arising from the report of a Chemical Examiner, who is not examined
before the Court, and which substantially raises a presumption of guilt. In
this connection, the circumstance that the regularity of the process for extraction
of blood and the subsequent dealing of the blood phial was not challenged by
the appellant in the trial court is material.
But counsel for the appellant contends that
the report of the Chemical Examiner on which alone substantially the case of
the prosecution rests is inadmissible in evidence. He submits that in order to
raise a presumption under s. 66( 2) of the Act, in a trial of a person charged
with committing an 942 offence under s. 66 (1) (b), it must be proved that
concentration of alcohol in the blood of the accused person is not less than
0.05 per cent weight in volume, and that can only be proved by the report of
the Chemical Examiner or the Medical Officer in the manner provided by s. 129B
in respect of examination of blood collected in the circumstances and under
conditions prescribed by s. 129 A.
Counsel says that the Legislature having
enacted a special provision relating to the procedure by which evidence about
concentration of alcohol in blood is to be collected, examined and placed
before the Court, no other method of establishing concentration of alcoholic
content in the blood of a person charged with an offence under s. 66 (1) (b) is
permissible, and that even though a concession was made before the Court of
Session by counsel appearing for the appellant, evidence aliunde the report
under s. 129B was inadmissible. Starting on this hypothesis, counsel submits
that the report of the Chemical Examiner in respect of blood collected not in
the manner and in the conditions set out in s. 129 A, cls. (1) and (2), cannot
be used as evidence for raising a presumption against the appellant, and beyond
the bare circumstance that Dr. Kulkarni noticed that the appellant was
"smelling of liquor at 6 a. m. on April 3, 1961, there is no evidence on
which the appellant could be convicted.
it is necessary in considering the validity
of this argument to examine the scheme of ss. 66 (2), 129A and 129 B, which
were added by Act. 12 of 1959. In a trial of an accused person for an offence
of consuming liquor under s. 66 (1) (b) of the Act, s. 66(2) makes proof of
concentration of alcohol in the blood of the accused in excess of the
prescribed quantity presumptive evidence that he has consumed, in contravention
of the provisions of the Act or the rules, regulations or orders made there under,
liquor 943 which is not excepted from the prohibitions in Ch. III, and the
burden lies upon the accused to prove that liquor consumed by him was a
medicinal, toilet or antiseptic preparation or a solution or flavouring
extract, essence or syrup containing alcohol. Subsection (2) of s. 66 provides
for raising a presumption upon proof of concentration of alcohol in blood: it
does not prescribe the manner or method of proving concentration of alcohol in
blood of the person charged with the offence under s. 66 (1) (b) exceeding the
percentage mentioned in sub-s. (2).
The material part of s. 129A is :
"(1) Where in the investigation of any
offence under this Act, any Prohibition Officer duly empowered in this behalf
by the State Government or any Police Officer, has reasonable ground for
believing that a person has consumed an intoxicant and that for the purpose of
establishing that he has consumed an intoxicant or for the procuring of
evidence thereof it is necessary that his body be medically examined, or that
his blood be collected for being tested for determiningthe percentage of
alcohol therein,such Prohibition Officer or Police Officer may produce such
person before a registered medical practitioner (authorised by general or
special order by the State Government in this behalf) for the purpose of such
medical examination or collection of blood, and request such registered medical
practitioner or furnish a certificate on his finding whether such person has
consumed any intoxicant and to forward the blood collected by him for test to
the Chemical Examiner or Assistant Chemical Examiner to Government, or to such
other Officer as the State Government may appointing this behalf.
944 (2) The registered medical' practitioner
before whom such person has been produced shall examine such person and collect
and forward in the manner prescribed the blood of such person, and furnish to
the officer by whom such person has been produced, a certificate in the
prescribed form containing the result of his examination. The Chemical Examiner
or Assistant Chemical Examiner to Government, or other Officer appointed under
sub-section (1) shall certify the result of the test of the blood forwarded to
him, stating therein the prescribed form, the percentage of alcohol, and such
other particulars as may be necessary or relevant.
(3) If any person offers resistance to his
production before a registered medical practitioner under sub-section (1) or on
his production before such practitioner to the examination of his body or to
the collection of his blood, it shall be lawful to use all means reasonably
necessary to secure the production of such person or the examination of his
body or the collection of blood necessary for the test.
(4) x x x x "(5) Resistance to
production before a registered medical practitioner as aforesaid, or to the
examination of the body under this section, or to the collection of blood as
aforesaid, shall be deemed to be an offence under section 186 of the Indian
Penal Code.
(6) x x x (7) x x x (8) Nothing in this
section shall preclude the fact that the person accused of an offence 945 has
consumed in intoxicant from being proved otherwise than in accordance with the
provisions of this section." The section is intended primarily to provide
for compelling a person reasonably believed by an Officer investigating an
offence under the Act or by a Prohibition Officer duly empowered, to have
consumed liquor, to submit himself to medical examination, and collection of
blood. Before a person can be compelled to submit himself to examination, two
conditions have to be fulfilled. It must be in` the course of investigation of
an offence under the Act; and that a Prohibition Officer duly empowered in that
behalf by the State Government, or Police Officer has reasonable ground for
believing that a person has consumed liquor, and that for the purpose of
establishing that such a person has consumed an intoxicant, or for procuring
evidence thereof, it is necessary that his body be medically examined or his
blood be collected. It is only when these conditions exist that a person can be
sent or produced before a registered medical practitioner for purposes of
medical examination or collection of blood. By sub-s. (5), resistance to
production before a registered medical practitioner or to the examination of
his body or collection of blood is made unlawful. By sub-s. (2), the registered
medical practitioner is obliged to examine the person produced before him and
to collect and forward in the manner prescribed the blood of such person and to
furnish to the Officer a certificate in the prescribed form containing the
result of his examination. But sub-s. (8) expressly provides that proof of the
fact that a person has consumed an intoxicant may be secured in a manner
otherwise than as provided in s. 129 A. Therefore, production for examination
of a person before a registered medical practitioner during the course of
investigation by a competent officer who has reason. able ground for believing
that the person has 946 consumed an intoxicant and for establishing that fact
examination is necessary, is not the only method by which consumption of an
intoxicant may be proved. An investigating officer or a Prohibition officer
empowered by the State Government must, ,if he desires to have a person
examined, or his blood taken, in the course of investigation for an offence
under the Bombay Prohibition Act, take steps which are prescribed in s. 129-A
and the certificate of the registered medical practitioner and the report of
the Chemical Examiner made on the result of the test of the blood forwarded to
him are by s. 129 B made admissible as evidence in any proceeding under the
Act, without examining either the registered medical practitioner or the
Chemical Examiner. But if examination of a person or collection of blood from
the body of a person is made otherwise than in the conditions set out in s.
129-A, the result of the examination or of the blood may, if it is relevant to
a charge for an offence under the Act, be proved by virtue of cl. (8), and
there is nothing in s. 129 A or s. 129-B which precludes proof of that fact if
it tends to establish that the person whose blood was taken or was examined had
consumed illicit liquor.
Nazir Ahmed v. The King' Emperor (1), on
which strong reliance was placed by counsel for the appellant in support of his
plea that s. 129 A (1) & (2) and s. 129 B prescribe the only method of
proving concentration of alcohol in blood; is of little assistance in this
case. In that case the judicial Committee held that ss. 164 and 364 of the Code
of Criminal Procedure prescribed the mode in which confessions are to be
recorded by Magistrates when made during investigation and a confession before
a Magistrate not recorded in the manner provided was inadmissible. In so
holding the judicial Committee relied upon the rule that where power is given
to, do a certain thing in a certain way the thing must be done in that way to
the exclusion of all other (1) (1936) L.R. 63, I.A. 372.
947 methods of performance or not at all, and
that the rule was applicable to a Magistrate who was a ,judicial officer acting
under s. 164 of the Code of Criminal Procedure. It was therefore held that ss.
164 and 364 of the Code of Criminal Procedure conferred powers on Magistrates
and delimited them, and these powers could not be enlarged in disregard of the
provisions of s. 164. The judicial Committee observed :
"'As a matter of good sense, the
position of accused persons and the position of the magistracy are both to be
considered. An examination of The Code shows how carefully and precisely
defined is the procedure regulating what may be asked of, or done in the matter
of examination of, accused persons, and as to how the results are to be
recorded and what use is to be made of such records. Nor is this surprising in
a jurisdiction where it is not permissible for an accused person to give
evidence on oath. So with regard to the magistracy; it is for obvious reasons
most desirable that magistrates and judges should be in the position of
witnesses in so far as it can be avoided. Sometimes it cannot be avoided, as
under s. 533; but where matter can be made of record and therefore admissible
as such there are the strongest reasons of policy for supposing that the
Legislature designed that it should be made available in that form and no
other. In their Lordships view, it would be particularly unfortunate if
magistrates were asked at all generally to act rather as police-officers than
as judicial persons; to be by reason of their position freed from the
disability that attaches to police-officers under s. 162 of the Code; and to be
at the same time freed, notwithstanding their position as magistrates, from any
obligation to make records under s. 164. In the 948 result they would indeed be
regulated to the position of ordinary citizens as witness, and then would be
required to depose to matters transacted by them in their official capacity
unregulated by any statutory rules of procedure or conduct whatever. Their
Lordships are, however, clearly, of opinion that this unfortunate position
cannot in future arise because, in their opinion, the effect of the statute is
clearly to prescribe the mode in which confessions are to be dealt with by
magistrates when made during an investigation, and to render inadmissible any
attempt to deal with them in the method proposed in the present case." The
rule in Taylor v. Taylor (1), on which the Judicial Committee relied has, in
our judgment, no Application to this case. Section 66 (2), as we have already
observed, does not prescribe any particular method of proof of concentration of
alcohol in the blood of a person charged with consumption or use of an
intoxicant. Section 129 A is enacted primarily with the object of providing
when the conditions prescribed are fulfilled, that a person shall submit
himself. to be produced before a registered medical practitioner for
examination and for collection of blood.
Undoubtedly' s. 129 A (1) confers power upon
a Police or a Prohibition Officer in the conditions set out to compel a person
suspected by him of having consumed' illicit-liquor., to -be produced for
examination and for collection of blood before a registered medical
practitioner. But proof of concentration of alcohol may be obtained in the
manner described in s. 129A(1) & (2), or otherwise; that is expressly
provided by s. (8) of s. 129A. The power of a Police Officer to secure
examination of a person suspected of having consumed an intoxicant in the
course of investigation for an offence under the Act is undoubtedly restricted
by s. 129A. But in the present case the Police Officer investigating the (1)
[1875] 1 Ch. D. 426.
949 offence had not produced the accused
before a medical officer : it was in the course of his examination that Dr. Kulkarni,
before any investigation was commenced, came to suspect that the appellant had
consumed liquor, and he directed that specimen of blood of the appellant be
collected. This step may have been taken for deciding upon the line of
treatment, but certainly not for collecting evidence to be used against the
appellant in any possible trial for a charge of an offence of consuming liquor
contrary to the provisions of the Act. If unlawful consumption of an intoxicant
by a person accused, may be proved otherwise than by a report obtained in the
conditions mentioned in s. 129A(1) & (2), there would be no reason to
suppose that other evidence about excessive concentration of alcohol probative
of consumption is inadmissible.
Admissibility of evidence about concentration
of alcohol in blood does not depend upon the exercise of any power of the
police or Prohibition Officer. Considerations which were present in Nazir
Ahmad's case (1), regarding the inappropriateness of Magistrates being placed
in the same position as ordinary citizens and being required to transgress
statutory provisions relating to the method of recording confessions also do
not arise in the present case.
Section 129B reads as follows ""Any
document purporting to be(a) a certificate under the hand of a registered
medical practitioner, or the Chemical Examiner or Assistant Chemical Examiner
to Government, under section 129A or of an officer appointed under sub-section
(1) of that section, or (b) a report under the hand of any registered medical
practitioner in any hospital or dispensary maintained by the State Government
or a (1) (1936) L.R. 63 I.A. 372.
950 local authority, or any other registered
medical practitioner authorised by the State Government in this behalf, in
respect of any person examined by him or upon any matter or thing duly
submitted to him for examination or analysis and report, may be used as
evidence of the facts stated in such certificate, or as the case may be,
report, in any proceedings under this Act; but the court may if it thinks fit,
and shall, on the application of the prosecution or the accused person, summon
and examine any such person as to the subject matter of his certificate or as
the case may be, report." Section 129B, cl. (a) makes a certificate by a
registered medical practitioner or the Chemical Examiner admissible as evidence
of the facts stated therein. Clause (b) of s.129B makes another class of
documents admissible as evidence of facts therein. These are reports of certain
classes of registered medical practitioners in respect of persons examined by
them or upon any matter or thing duly submitted for examination or analysis and
report. Therefore cl. (a) of s. 129B makes the certificate under s. 129A admissible:
cl. (b) makes reports of registered medical
practioners in respect of persons, matters or things submitted to them
admissible. Section 129B is an enactment dealing with a special mode of proof
of facts stated in the certificates and reports mentioned therein : it has no
other effect or operation. The Sessions judge in more places than One has in
the course of his judgment referred to "the presumption under s.
126B". The section however deals with proof of facts, and not presumptions
: it enacts a rule Of evidence similar to s. 510 of the Code of Criminal
Procedure.
Without proof of the facts stated, the
contents of the certificate or report may by s. 129B be proved by tendering the
document. If the document is tendered, it is admissible as evidence of the 951
contents thereof. The certificate or the report proved in the mariner provided
by s. 129B raises 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 the manner
provided by cl. (a) or cl. (b) of s. 129B, or otherwise, that gives rise to a
presumption under s. 66(2).
Section 129A contemplates two classes of
certificates certificate of the result of the examination by a registered
medical practitioner whether the person sent to him has consumed any intoxicant
and the certificate of the Chemical Examiner of the examination of blood
collected by a registered medical practitioner and sent to him for examination.
These are made admissible by virtue of cl. (a) of s. 129B. Clause (b) of s.
129B deals with the admissibility of reports in respect of examination of
persons or of matters or things submitted to the registered medical
practitioners for examination or analysis and report. These are undoubtedly
different from the certificates of examinations made under s. 129A. The report
of a registered medical practitioner under cl. (b) of s.
129B may be upon a ,'matter or thing"
and so may be in respect of blood specimen submitted to him.
On an analysis of ss. 129A and 129B, it is
clear that the Legislature has provided in the first instance for compelling
persons suspected of consuming intoxicants to be produced and to submit
themselves for examination and extraction of blood which, under the law as it
stood, could not be secured, but thereby the law did not provide for only one
method of proving that a person had consumed illicit liquor within the meaning
of s. 66 (2). The Legislature has made the certificate of the examination under
s. 129A, subss. (1) and (2) admissible without formal proof, but by subs. (8)
of s. 129A, 952 the adoption of any other method of collection of evidence for
proving that a person accused has consumed an intoxicant is not precluded and a
report of any registered medical practitioner which tends to establish that
fact in respect of matters specified in cl. (b) of s. 129B is also made
admissible. On that view of ss. 129A and 129B, there is no warrant for assuming
that it was intended thereby to exclude in trials for offences under s. 66 (1)
(b) of the Act the operation of s. 510 of the Code of Criminal Procedure. The
Code makes a document purporting to be a report under the hand of a Chemical
Examiner and certain other documents upon any matter or thing duly submitted to
him for examination or analysis and report admissible in any-enquiry, trial or
other proceeding under the Code. The terms of s. 510 of the Code of Criminal
Procedure are general; but on that account it cannot justifiably be assumed
that by enacting ss. 129A and 129B, the Legislature intended that the
certificate of a competent officer in respect of matters not governed thereby
shall become inadmissible. It is open to the prosecution to rely in
corroboration of a charge of consumption of illicit liquor upon a certificate
under cl. (a) of s. 129B if it is obtained in the manner prescribed by s. 129A,
and also to rely upon the report of a registered medical practitioner in
respect of any person examined by him or upon any matter or thing duly
submitted to him for examination or analysis and report. It is also open to the
prosecution to rely upon the report of the Chemical Examiner in cases not
covered by s.
129A as provided under s. 510 of the Code of
Criminal Procedure.
It was urged that by the enactment of s. 129A
and s. 129B of the Act, s. 510 of the Code stood repealed in its application to
offences under s. 66 (1) of the Bombay Prohibition Act, and reliance in this
behalf was placed upon Art. 254 (2) of the Constitution. It is true that power
to legislate on matters 953 relating to Criminal Procedure and evidence falls
within the Third List of the Seventh Schedule to the Constitution and the Union
Parliament and the State Legislature have concurrent authority in respect of these
matters. The expression "'criminal procedure" in the legislative
entry includes investigation of offences, and ss. 129A and 129B must be
regarded as enacted in exercise of the power conferred by Entries 2 and 12 in
the Third List. The Code of Criminal Procedure was a law in force. immediately
before the commencement of the Constitution, and by virtue of Art.
254 (2) legislation by a State Legislature
with respect to any of the matters enumerated in the Third List repugnant to an
earlier law made by Parliament or an existing law with respect to that matter
if it has been reserved for the consideration of the President and has received
his assent prevails in the State. Bombay Act No. 12 of 1959 was reserved for
the consideration of the President and had received his assent: ss. 129A and
129B will prevail in the State of Bombay to the extent of inconsistency with
the Code,, but no more. That they so prevail only to the extent of the
repugnancy alone and no more is clear from the words of Art. 254 : Deep Chand
v. The, State of Uttar Pradesh (1) and Ch. Tikaramji v. The State Uttar Pradesh
(2). It is, difficult to regard s. 129B of the Act as so repugnant to s.
510 of the Code as to make the latter
provision wholly inapplicable to trials for offences under the Bombay
Prohibition Act. Section 510 is a general provision dealing with proof of
reports of the Chemical Examiner in respect of matters or things duly submitted
to him for examination or analysis and report. Section 129B deals with a
special class of reports and certificates. 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 s.129A:
(1) [19591 Supp. 2 S.C.R. 8.
(2) [1956] S.C.R. 393.
954 and the evidence to prove the facts
disclosed thereby will be the certificate or the examination viva voce of the
registered Medical Practitioner, or the Chemical Examiner, for examination in
the course of an investigation of an offence under the Act of the person so
suspected or of his blood has by the clearest implication of the law to be
carried out in the manner laid down or not at all. 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 the manner set out
in s.
129A cannot therefore be used as evidence in
the case. To that extent S. 510 of the Code is superseded by s. 129B.
But the report, of the Chemical Examiner
relating to the examination of blood of an accused person collected at a time
when no investigation was pending, or at the instance not of a Police Officer
or a Prohibition Officer remains admissible under s. 510 of the Code.
It was urged before the Court of Session that
the report of the Chemical Examiner was submitted by that officer not to the
Court or to the medical officer but to the police officer and it was by virtue
of s. 162 of the Code of Criminal Procedure inadmissible, except to the extent
permitted within the strict limits prescribed by that section, But s. 510 makes
provision with regard to proof of documents by production thereof, and the
application of s. 162 (1) is expressly made subject to what is provided in the
Code of Criminal Procedure. Exclusion from evidence of any part of a statement
made to a police officer or a record from being used for any purpose at any
enquiry or trial in respect of an offence under investigation at the time when
such statement was made is "save as hereinafter provided".
The word "hereinafter" is, in our
judgment not restricted in its operation to s. 162 alone but applies to the
body of the Code; to hold otherwise would be to introduce a patent
inconsistency between s. 207 A and s. 162 of the Code, 955 for by the former
section in committal proceeding, statements recorded under s. 162 are to be
regarded as evidence. The contention raised that the report made to the police
officer by the Chemical Examiner was inadmissible in evidence was rightly
rejected.
Finally, it was urged that the blood specimen
was not submitted in the manner prescribed by rules framed under the Bombay
Prohibition Act, and therefore it could not be regarded as, "duly
submitted." The Government of -Bombay has, by notification dated April 1,
1959, framed rules under cl. (w) of s. 143 of the Bombay Prohibition Act,
called the Bombay Prohibition (Medical Examination and Blood Test) Rules. Rule
3 deals with the examination of a person by a registered medical practitioner
before whom he is produced under sub-s. (1) of s. 129A. Rule 4 provides for the
manner of collection and forwarding of blood specimen and r. 5 deals with
certificates of tests of "sample blood". All these rules deal with
medical examination of a person who is produced before a registered medical
practitioner under subs. (1) of s. 129A. To an examination to which s. 129A
does not apply, the rules would have no application. The law not having
prescribed a particular method of submitting specimen of blood collected from
an accused person when blood has been collected before any investigation has
started, it is unnecessary to consider the argument whether the expression
"duly submitted" used in s. 510 of the Code of Criminal Procedure
means merely in the manner prescribed by rules in that behalf or as pointed out
by the learned Sessions judge, submitted after taking adequate precautions for
ensuring its safety and for securing against tampering. In the present case,
the blood specimen was collected by Dr.
Rote and thereafter it was handed over to the
police officer on demand by him and ultimately submitted to the Chemical
Examiner for his examination, it would'.. in our judgment, be regarded as
"duly submitted." 956 We are unable to accept the contention of
counsel for the appellant that the appellant should, on the view taken by the
Sessions judge. be acquitted, but for reasons already stated, we are also
unable to agree with the learned judge that the appellant should be retried before
the trial Court.
We accordingly set aside the order passed by
the Trial Magistrate and direct that the Sessions judge do hear the appeal and
dispose of it according to law, after giving an opportunity to the prosecution
to lead evidence on the matters which are indicated in the course of this
judgment, the additional evidence may be taken by the Sessions judge himself or
may be ordered to be recorded in the Trial Court.
The accused shall be examined under s. 342 of
the case of Criminal Procedure and be given an opportunity to lead evidence in
rebuttal, if he so desires. The Sessions judge may require the presence of the
Chemical Examiner for examination before him or before the Magistrate, if he
thinks that examination viva voce of the Chemical Examiner is necessary to do
complete justice in the case.
Subject to the above modification, the appeal
is dismissed.
DAS GUPTA, J.-I think this appeal should be
allowed. The appellant was convicted under s. 66 (1) (b) of the Bombay
Prohibition Act, 1949 on the charge of having consumed an intoxicant against
the provisions of the Prohibition Act and was sentenced to pay a fine of Rs.
500/or in default to suffer rigorious imprisonment for two months.
On appeal, the Sessions judge, jalgaon, being
of opinion that the evidence already on the record was not sufficient to
establish the guilt of the accused, set aside the conviction and sentence
passed against him. He, however, ordered the case to be sent back to the
learned judicial Magistrate, Bhusawal, for 957 re-trial so that the prosecution
might have an opportunity of adducing evidence to connect the report of the
chemical examination which was produced at the trial with the blood of the
accused person which was taken at 6 a. m. on April 3, 1961, a few hours after
the alleged consumption of the intoxicant. It is obvious that the only purpose
that such additional evidence was expected to serve was that the prosecution
would get the benefit of s. 66 (2) of the Bombay Prohibition Act. The Revision
petition filed by the accused against this order was rejected by the High Court
of Bombay.
Against that order of rejection, this appeal
has been preferred after obtaining special leave from this Court.
The main contention urged in support of the
appeal is that as the blood that was taken at 6 a. m. was not taken in
accordance with the provisions of s. 129 A of the Prohibition Act, no evidence
as regards the contents of that blood -As admissible in law for the purpose of
s. 66 (2) of the Prohibition Act. It is necessary to consider this contention
carefully as it is not disputed that the prosecution must fail unless it can
get the benefit of s. 66 (2) of the Prohibition Act.
To understand, the nature of the right
conferred on the prosecution by s. 66 (2) it will be helpful to maintain
briefly a few other sections of the Act. Section 13 of the Act prohibits among
other things the consumption of an intoxicant. Section 2 (22) defines
intoxicant to mean "any liquor, intoxicating drug, opium or any other
substance., which the State Government may by notification in the official
gazette declare to be an intoxicant." ",Liquor" is defined ins.
2 (24) to include (a) spirits of wine (denatured spirits), wine, beer, toddy
and all liquids consisting of -or containing alcohol; and (b) any other
intoxicating substance which the State Government may by notification in the
official gazette, declare to 958 be liquor for the purpose of this Act. It is
important to mention also s. 24 A of the Act, the relevant portion of which for
our present purpose runs thus :"Nothing in this Chapter shall be deemed to
apply to:
(1) Any toilet preparation containing alcohol
which is unfit for us as intoxicant liquor;
(2) Any medicinal preparation containing
alcohol which is unfit for use as an intoxicating liquor;
(3) Any antiseptic preparation or solution
containing alcohol which is unfit for use as intoxicating liquor;
(4) Any flavouring extract, essence or syrup
containing alcohol which is unfit for use as intoxicating liquor." As
section 13 is in Chapter III the position in law is that the prohibition in s.
13 against consumption of liquor does not apply to any of the substances
mentioned in s. 24A. It is necessary to mention also that it has been held by
this Court in State of Bombay (now Gujarat) v. Narandas Mangilal Aggarual (1),
that the burden of proving that the substances in respect of which the
prohibition in s. 13 or any other section of the Chapter is alleged by the
prosecution to have been contravened, does not fall within any of the four classes
mentioned in s. 24-A, is on the prosecution.
It is clear therefore that a prosecution for
an offence under s. 66(1) (b) cannot succeed by the mere proof of the fact that
the accused consumed liquor. It is also to be proved that the liquor does not fall
(1) [1962] Supp. 1 S.C.R. 15.
959 within any of the substances mentioned in
s. 24(A). In other words, before a person can be convicted under s.
66(1)(b) of the Prohibition Act for
consumption of an intoxicant the prosecution has to prove two things. It has
first to prove that the accused consumed an intoxicant, and secondly, it has to
prove that intoxicant was not either a toilet preparation or a medicinal
preparation or an antiseptic preparation or solution containing alcohol or a
flavouring extract, essence or syrup containing alcohol, which while containing
alcohol was not unfit for use ,as intoxicating liquor. Section 66(2) of the Act
comes to the aid of the prosecution in proving both these things by providing
that if after alleging that the accused consumed liquor the prosecution proves
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
disproving the ingredients of the offence as mentioned above will be shifted to
the accused. The result of this is that where the prosecution proves such
concentration of alcohol in the blood of the accused person the accuse will be
liable to conviction until and unless the accused proves either that he did not
consume any intoxicant or that the substance he consumed was a medicinal or
toilet preparation or any antiseptic preparation or solution containing alcohol
or any flavouring extract, essence or syrup containing alcohol, "which is
unfit for use as intoxicating liquor." If there had been no special
provision in the Act as to how this concentration of alcohol in the blood of
the accused person could be proved by the prosecution, it would undoubtedly be
open to the prosecution, to obtain the blood of the accused person in any
-manner not prohibited by law, have it examined by an expert and produce the
evidence of the expert before the Court-either by examining the expert himself
or if the law permits by producing his 960 report even without such
examination. A special provision has however been made by the legislature as
regards the mode in which the prosecution can bring before the Court the
evidence as regards the concentration of alcohol in the blood of the accused
person. This provision appears in s.
129A of the Act. That section runs thus :Section
129A.
(1) Where in the investigation of any offence
under this Act, any Prohibition Officer duly, empowered in this behalf by the
State Government or any Police Officer, has reason. able ground for believing
that a person has consumed an intoxicant and that for the purpose of
establishing that he has consumed an intoxicant or for the procuring of
evidence thereof it is necessary that his body be medically examined, or that
his blood be collected for being tested for determining the percentage of
alcohol therein, such Prohibition Officer or Police Officer may produce such
person before a registered medical practitioner (authorised by general or
special order by the State Government in this behalf ) for the purpose of such
medical examination or collection of blood, and request such registered medical
practitioner to furnish a certificate on his finding whether such person has
consumed any intoxicant and to forward the blood collected by him for test to
the Chemical Examiner or Assistant Chemical Examiner to Government, or to such
other officer, as the State Government may appoint in this behalf.
(2) The registered medical practitioner before
whom such person has been produced shall examine such person and collect and
forward in the manner prescribed, the blood of such person, and furnish to the
officer by whom such person 961 and collect and forward in the manner
prescribed, the blood of such person, and furnish to the officer by whom such
person has been produced, a certificate in the prescribed form containing the
result of his examination.
The Chemical Examiner or Assistant Chemical
Examiner, to Government, or other officer appointed under sub-section (1) shall
certify the result of the test of the blood forwarded to him, stating therein,
in the prescribed form, the percentage of alcohol, and such other particulars
as may be necessary or relevant.
(3) If any person offers resistance to his
production before a registered medical practitioner under sub-section (1) or on
his production before such medical practitioner to the examination of his body
or to the collection of his blood, it shall be lawful to use all means
reasonably necessary to secure the production of such person or the examination
of his body or the collection of blood necessary for the test.
(4) If the person produced is a female, such
examination shall be carried out by, and the blood shall be collected by or
under the supervision of a female registered medical practitioner authorised by
general or special order, by the State Government in this behalf, and any
examination of the body, or collection of blood, of such female shall be
carried out or made with strict regard to decency.
(5) Resistance to production before a
registered medical practitioner as aforesaid or to the examination of the body
under this section, or to the collection of blood as aforesaid, shall be deemed
to be an offence under section 186 of the Indian Penal Code.
(6) Any expenditure incurred for the purpose
of enforcing the provision of this section including any fees payable to a 962
registered medical practitioner or the officer appointed under sub-section (1),
be defrayed out of the money provided by the State Legislature.
(7) If any Prohibition Officer or Police
Officer vexatiously and unreasonably proceeds under sub-section (1), he shall,
on conviction, be punished with fine which may extend to five hundred rupees.
(8) 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".
On behalf of the appellant, it is contended
that no evidence as regards the concentration of alcohol in the blood can be
given by the prosecution unless the blood has been collected and forwarded and
thereafter examined in accordance with the procedure laid down in s. 129 A. In
my opinion, this contention should succeed.
It has to be noticed, in the first place,
that the very detailed provisions made in this section s. 129 A-were made by
the same amending Act which created this special right in favour of the
prosecution by enacting s. 66 (2). It does not, in my opinion. stand to reason
to say that even when making such detailed procedure the legislature
contemplated that those in charge of the prosecution might choose not to follow
the procedure at all.
It has to be noticed that the production of
an accused person before a medical officer is provided for in the first
sub-section for two different purposes. One is for the examination of his body
for procuring evidence of consumption of an intoxicant 963 by him and the other
is the collection of his blood for being tested for determining the percentage
of alcohol therein. When the accused has been produced the medical practitioner
will examine the accused and himself give a certificate whether the person has
consumed an intoxicant.
He will also take the person's blood if so
requested but he is given no authority to examine the blood himself. The
definite provision as regards the examination of the blood is that after the
blood has been collected by the registered medical practitioner he will forward
the same either to the Chemical Examiner or the Assistant Chemical Examiner to
Government or any other officer as the State Government may appoint. It is the
duty of the officer be he the Chemical Examiner or the Assistant Chemical
Examiner or any other officer appointed for the purpose to whom the blood has
been forwarded, to test the blood and to give a certificate stating the percentage
of alcohol in the blood and such other particulars as may be necessary or
relevant.
Provision is also made in the third
sub-section for "use of all means" that may be necessary to secure
the production of such person or the examination of his body or the collection
of his blood, if he offers resistance. The fourth subsection makes special
provision as regards how the medical examination shall be carried out and the
blood shall be collected where the person is a female. The fifth subsection
provides that resistance to production before a medical practitioner or to the
examination of the body or to the collection of blood shall be deemed to be an
offence.
The sixth sub-section provides as to how the
expenditure shall be met. The seventh sub-section makes the Prohibition Officer
or Police Officer liable to penalty if he has proceeded vexatiously and
unreasonably under sub-section (1). The eighth sub-section which is the last in
the section and deserves special consideration will be separately dealt with.
964 One of the well-recognised principles of
interpretation of statutes is that when a law creates a new right and at the
same time prescribes a mode in which that right may be exercised, it will, in
the absence of anything indicating a contrary intention, be ordinarily
reasonable to hold that the right cannot be exercised in any other mode. In the
present case, far from there being any indication to the contrary, all the
indications are, in may opinion, in favour of the view that the prescribed mode
in s. 129A was intended by the legislature to be the only mode in which the
right given to the prosecution by s. 66 (2) can be exercised. What was the
reason behind the legislature's intention to prescribe such a detailed
procedure in s. 129A for the ascertainment of the alcoholic content of the
blood of a person accused of an offence in connection with the consumption of
an intoxicant ? Why did it make such a careful demarcation of functions between
the registered medical practitioner before whom a person is first produced by
entrusting to him only the duty of examining the body of the person and if so
requested of collecting his blood -"for being tested for determining the
percentage of alcohol ", and the Chemical Examiner or the Assistant Chemical
Examiner or any other officer appointed by the State Government in this behalf
by entrusting to them only the duty of testing the blood? It appears reasonable
to think that the real reason behind all this detailed provision was the
legislature's anxiety to ensure that the very special right created by s. 66
(2) in favour of the prosecution for the proof of alcoholic content of the
blood shifting the onus on the accused should not be availed of in a manner
that might leave loopholes for either errors or unfair practices. This motive
is also clear from the provision made in the seventh sub-section that " if
any Prohibition Officer or Police Officer, vexatiously and unreasonably
proceeds under subsection (1), he shall, on conviction, be punished with fine
which may extend to five hundred 965 rupees." All these steps taken by the
legislature for prescribing a special procedure would be set at naught if it
was left open to the Prohibition Officer or Police Officer to arrange for the
taking of blood and testing thereof in any other manner. Thus, to say that it
is open to the Prohibition Officer or the Police Officer to have the blood
taken and also tested by the registered medical practitioner himself for using
his finding as evidence to prove alcoholic concentration in the blood for the
purpose of s. 66 (2) would be to fly in the face of the clear indication in S.
129A that it is not for the registered
medical practitioner before whom a person is produced to test the blood, that
it is for him only to collect the blood and then forward it to the Chemical
Examiner or the Assistant Chemical Examiner or such other officer as the State.
Government may appoint in this behalf to test the blood for the alcoholic
content. To say that the legislature did not intend the procedure as prescribed
ins. 129A to be the only procedure for the ascertainment of alcoholic content
in a person's blood for the purpose of getting the benefit of s. 66 (2) of the
Act is really to hold that even though the legislature did definitely say that
the registered medical practitioner should only collect the blood and forward
it to the other functionary named in the section whose duty would be to test
it, the legislature was quite content that this direction need not be complied
with. With great respect for the learned brethren who take the contrary view, I
am of opinion, that it is wholly arbitrary to attribute to a legislature an
intention that it did not mean what it said.
Even if there had been any scope for doubt on
the question whether the legislature intended to prescribe the procedure to be
the only procedure available to enable the prosecution to get the aid of S. 66
(2), that doubt is, in my opinion, completely set at rest by the 8th
sub-section of s. 129A.
This 966 sub-section, as already set out, says
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." It is important
to note at once that the legislature did not in this sub-section say "that
nothing in this section shall preclude the fact of the alcoholic content of the
blood of the person from being proved otherwise than in accordance with the
provisions of this section," This omission cannot but be held to be
deliberate.
The operative portion of the section deals,
as has already been pointed out earlier' with two distinct matters-one as
regards the medical examination of a person's body for the purpose of
establishing that he has consumed an intoxicant and the other as regards the
testing of his blood for determining the percentage of alcohol therein. As
regards the first of these purposes the 8th sub-section makes a clear provision
that the section shall not have the effect of excluding any other mode of proof
In other words, the fact that a person has consumed an intoxicant may be proved
by evidence other than what is made available under the provisions of this
section. As regards the other purpose, viz., the determination of the
percentage of alcohol in the blood no such saving clause is enacted. In my
opinion, this is an eminent case for the application of the principle expressio
unius exclusio alterius and that the expression of the legislature's intention
that the provisions of the section shall not preclude the fact of consumption
of an intoxicant being proved by other modes justifies a conclusion that the
legislature's intention was that the section shall preclude the fact that the
person had a particular percentage of alcohol in his blood from being proved
otherwise than in accordance with the provisions of the section.
967 It appears clear to me, on a
consideration of s. 66 (2) together with s. 129A that having conferred on the
prosecution the benefit in s. 66 (2) that if the alcoholic percentage of an
accused person's blood is proved to be not less than 0.05 the accused would be
presumed to be guilty of an offence under s. 66 (1) unless he proves to the
contrary, the legislature-at the same time intended that this fact can be
proved only by evidence obtained in the manner provided by the same amending
Act in the new section 129A.
It is for this reason that while leaving it
open to the prosecution to prove the consumption of an intoxicant by an accused
person "otherwise than in accordance with the provisions of (s.
129A)" it did not leave it open to the prosecution to prove the fact of
percentage of alcohol in the blood also "otherwise than in accordance with
the provisions of this section." In coming to this conclusion I have not
overlooked the fact that s. 129B in providing for certain reports and
certificates being used as evidence even without the examination of the person
who prepared the report or gave the certificate, has mentioned in cl. (b) a
report by a registered medical practitioner "upon any matter or thing duly
submitted to him for examination or analysis and report", outside s. 129A.
It was pointed out that this very fact shows that the legislature contemplated
the examination by a registered medical practitioner of "any matter or
thing", even apart from s. 129A. The argument is that this can only refer
to the examination of blood for ascertaining its alcoholic content. I am unable
to agree that the only "matter" or "'thing" that can be
submitted to a registered medical practitioner for examination or analysis must
be the blood of an accused person and the examination can only be for
ascertaining the alcoholic percentage.
It is worth noticing that nothing is said in
this clause as to how the ,'submission" of the "thing" 968 has
to be proved. One can understand the submission of things like, say, some vomit
by an accused person being seized by an investigating officer and submitting it
to a registered' medical practitioner for examination or analysis and himself
coming to prove the fact of such submission.
Where, however, as suggested, the blood of a
person is being submitted to a registered medical practitioner it will be
unreasonable to think that anybody except a qualified medical practitioner
could have collected the blood. There is no provision in this clause that his
report in the matter will be available as evidence of the fact stated therein.
Or the construction suggested by the
respondent that "thing" in cl. (b) of s. 129B can only mean blood of
the accused person, we shall have the curious position that while the
registered medical practitioner who examined the blood need not come into the
witness box to prove that fact and the result of his examination, the other
medical practitioner who actually collected the blood will have to come into
the witness box to prove that fact and his certificate or report will not be
evidence of facts stated therein. I can see...... no compelling reason for
accepting a construction which will have such curious consequences.
A question somewhat similar to the one now
before us fell to be decided by the Privy Council in Nazir Ahmad v. The King
Emperor (1). That question arose in connection with the procedure laid down in
the Code of Criminal Procedure for the record of confessions by magistrates.
While s. 164 of the Code lays down a detailed procedure for recording by
magistrates of any confession made in the course of an investigation of a case
or at any time afterwards before the commencement of the enquiry or trial, s.
364 lays down the procedure that should be followed by a magistrate or by any
court other than a High Court established by a Royal Charter (1) (1936) L.R.63
I.A. 372.
969 when any accused is examined. The
appellant, (Nazir Ahmad was convicted mainly, if not entirely, on the strength
of a confession said to have been made by him to a magistrate of which evidence
was given by the magistrate but which was not recorded by the magistrate in the
manner required by s. 164 and s. 364 of the Code. The High Court held that this
evidence was admissible. In support of that view it was urged before the Privy
Council that the evidence was admissible just because it has nothing to do with
s. 164 or with any record and that by virtue of ss. 17, 21 and 24 of the
Evidence Act the statement was admissible just as much as it would be if
deposed by a person other than a magistrate. This argument was repelled by the
Privy Council in these words :"On the matter of construction ss. 164 and
364 must be looked at and construed together, and it would be an unnatural
construction to hold that any other procedure was permitted than that which is
laid down with such minute particularity in the sections themselves."
Later on their Lordships proceeded thus :"It is also to be observed that,
if the construction contended for by the Crown be correct, all the precautions
and safeguards laid down by ss. 164 and 364 would be of such trifling value as
to be almost idle. Any magistrate of any rank could depose to a confession made
by an accused so long as it was not induced by a threat or promise, without
affirmatively satisfying himself that it was made voluntarily and without
showing or reading to the accused any version of what he was supposed to have
said, or asking for the confession to be vouched by any magistrate.
The range of magisterial confessions would be
so enlarged by this process that the provisions of s. 164 would almost 970
inevitably be widely disregarded in the same manner as they were disregarded in
tile present case." It appears to me that these considerations which
weighed with the Privy Council in rejecting the argument that evidence of
confession not recorded in accordance with the procedure laid down in the Code
of Criminal Procedure could still be admissible, apply with equal force to our
present problem. If evidence as' regards alcoholic content of the blood is
allowed to be given even where the procedure laid down in s. 129A has not been
followed the salutary provisions of that section would "almost inevitably
be widely disregarded". That the legislature did not intend this is clear,
as I have already pointed out above, from what it laid down in the 8th
sub-section of s. 129A.
For all these reasons, I have come to the
conclusion that as admittedly the procedure laid down in s. 129A was not followed
for testing of the blood that was taken at 6 a.m., the prosecution cannot get
the benefit of s. 66(2) of the Prohibition Act. There is no justification,
therefore, for the order made by the Sessions judge, sending the case back to
the Magistrate for re-trial in order to give the prosecution an opportunity of
adducing evidence as regards the examination of the blood taken at 6 a.m. on
April 3, 1961.
I would therefore allow the appeal, set aside
the order of the High Court and also the order of the Sessions judge directing
re-trial and order that the appellant be acquitted.
By COURT. In accordance with the opinion of
the majority the Appeal is dismissed subject to the modifications mentioned in
the judgment.
Appeal dismissed.
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