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1 - 3 of 3 (0.23 seconds)The Maharashtra Prohibition Act
Karansingh Balubha vs State Of Gujarat on 3 September, 1965
5. Now it is clear that in order to establish the guilt of the accused for an offence under Section 66(1)(b) of the Act, the prosecution mainly relies on a report received from the, Chemical Examiner in respect of the blood of the accused taken by Dr. Talati on the date of the offence and then sent for examination to the Chemical Examiner at Junagadh through the police officer. When that is so, the point raised by Mr. Thakora assumes considerable importance as the guilt or otherwise of the accused will have to be determined on the strength of the report produced at Ext. 7 in the case. In that event, presumption of his guilt arises under Section 66(2) of the Act and since his explanation is disbelieved, he would be liable under Section 66(1)(b) of the Act. We have, therefore, to turn to the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, hereinafter to be referred to as "the Rules" and find out as to whether the requirements contemplated in Rule 4 are of a mandatory character and a breach thereof would affect the evidence contained in the report produced by the Chemical Examiner. Such a point arose in a case of Karansingh Balubha v. State of Gujarat 8 Guj LR 31 : , where it was held that if the prosecution relies solely on the report of the Chemical Analyser to prove the fact of concentration of blood which had been collected and sent to the Chemical Analyser in the course of an investigation of an offence under the Bombay Prohibition Act, such, certificate could be evidence only if the certificate had been obtained in the prescribed manner as laid down in Section 129A of the Act. Then it was held that Section 129A, Clause (2) of the Bombay Prohibition Act, 1949, casts a duty on the registered medical practitioner before whom such a person was produced in the course of the investigation to examine such a person and collect and forward in the prescribed manner the blood of such person, and on the Chemical Analyser to certify the result of the test of the blood forwarded to him stating the percentage of alcohol and such other particulars. Rules 4 and 5 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, which lay down the manner of collection and forwarding of blood, are mandatory provisions. The Legislature had advisedly required the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter so that there might not be any scope of tampering with the sample phial. If that safeguard was disregarded and the sample phial was handed over to the investigating officer himself, this salutary safeguard would be completely set at naught. In those circumstances, the Court held in that case that the prosecution having not led any other evidence to prove the fact of concentration of the blood, no presumption could be drawn under Section 66(2) of the Act and it was not for the accused to rebut the burden raised by the presumption. On the basis of this decision, it can be said that the Rules 4 and 5 are of a mandatory character and in the present case since the phial containing blood of the accused was sent by Dr. Talati through the investigating officer himself, namely, the complainant, head constable, the salutary safeguard providing for the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter has been completely disregarded.
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