2000 (8) TMI 1137 - HC - Indian Laws

Summary

Issues Involved:
1. Legality and propriety of the conviction under Section 66(1)(b) of the Bombay Prohibition Act, 1949.
2. Compliance with procedural rules for collecting and analyzing blood samples.
3. Admissibility and credibility of the Chemical Analyzer's report.
4. Applicability of mandatory versus directory provisions of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959.

Detailed Analysis:

1. Legality and Propriety of the Conviction:
The original accused filed a Criminal Revision Application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973, challenging the judgment dated 24th February 1989 by the Additional Sessions Judge, Jamnagar, which upheld the conviction and sentence passed by the Judicial Magistrate, First Class, Jamnagar. The accused was convicted under Section 255(2) of Cr.P.C. for an offense punishable under Section 66(1)(b) of the Bombay Prohibition Act, 1949, and sentenced to four months of simple imprisonment and a fine of Rs. 250, with an additional two months of simple imprisonment in default of payment.

2. Compliance with Procedural Rules:
The defense argued that the report of the Chemical Analyzer could only be taken into consideration if issued under Section 129B of the Act, and that the Medical Officer must follow the procedure prescribed under Section 129A(2) of the Act. The defense contended that the rules for collecting blood samples, as outlined in the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, were mandatory and not followed correctly. Specifically, the defense pointed out that the Medical Officer did not clean the skin surface with 1% aqueous solution of mercurochrome or gentian violet, did not add anticoagulant and preservative himself, and did not use a sterilized syringe.

3. Admissibility and Credibility of the Chemical Analyzer's Report:
The court examined the evidence and found that the Medical Officer had prepared the phial with anticoagulant and preservative and had cleaned the skin surface with a hot water pad, which was deemed sufficient. The court held that every part of Rule 4 was not mandatory and that substantial compliance was sufficient. The court also noted that the Chemical Examiner's report indicated that the phial was properly sealed and matched the forwarding letter, thus ensuring the integrity of the sample.

4. Applicability of Mandatory versus Directory Provisions:
The court referred to several precedents, including the Full Bench decision in Chamanbhai Gangaram Vankar v. State of Gujarat, which held that not all provisions of Rule 4 were mandatory. The court emphasized that literal compliance with every part of the rule was not necessary, and substantial compliance was adequate. The court found that the procedural requirements for collecting and analyzing the blood sample were substantially complied with, and the minor deviations pointed out by the defense did not invalidate the Chemical Analyzer's report.

Conclusion:
The court concluded that both the trial court and the appellate court had correctly convicted the accused under Section 66(1)(b) of the Bombay Prohibition Act, 1949. The court dismissed the Criminal Revision Application, finding it devoid of merits, and directed the accused to surrender before the Judicial Magistrate, First Class, Jamnagar, to serve the sentence. The ad-interim stay granted was vacated, and the office was directed to send the writ of the order to the trial court for execution.