TMI Blog1963 (2) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hosp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export, transport, manu- facture, 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 thereunder. 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 [1951] S.C.R. 682), 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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 infir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf. 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 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 with in 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 alc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thereunder, liquor 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 has consumed in intoxicant from being proved otherwise than in accordance with the provi- sions 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 bod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination 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 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 possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A 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 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 129 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting 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 relating to Criminal Procedure and evidence falls within the Third List of the Seventh Schedule to the Constitution and the Union Parliament and the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficial gazette, declare to 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. 24- A. It is necessary to mention also that it has been held by this Court in State of Bombay (now Gujarat) v. Narandas Mangilal Aggarual ([1962] Supp. 1 S.C.R. 15), 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 fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 procuri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my opinion, completely set at rest by the 8th sub-section of s. 129A. This 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 med ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank 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 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 dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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