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TMI Blog2000 (8) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... ction and sentence passed by the learned Magistrate by rendering his judgment in Column No.7 of Summary Form Ex.2 in Criminal Case No. 1735 of 1983 on 12th December, 1983. By that Judgment dt. 12th December, 1983 of the learned Magistrate, accused i.e. Criminal Revision Petitioner was convicted under Sec. 255(2) of Cr.P.Code for offence punishable under Section 66(1)(b) of the Bombay Prohibition Act, 1949 (for short "the Act") and was sentenced to undergo simple imprisonment for four months and to pay a fine of ₹ 250/- and I/D of fine, further to undergo simple imprisonment for two months. By that judgment, accused was acquitted for an offence punishable under Sec. 85(1)(3) of the Act. 2. The facts leading to this present Criminal Revision Application in a nutshell are as follows:- On or about 5th December, 1982, the complainant Police Constable Shri Ranjitsinh Dipsinh, Buckle No. 1027 of Jamnagar "A" Division, City Police Station, was on duty at S.T.Depot of Jamnagar. One another Police Constable Mahesh Hiralal, Buckle No. 927 was also on duty with complainant. As per the case of the prosecution, at about 10-00 a.m., one person was found in a drunken c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther simple imprisonment for two months. The learned Magistrate was pleased to acquit accused for an offence punishable under Sec. 85(1)(3) of the Act. Being aggrieved against and dissatisfied with the said order of conviction and sentence, accused preferred Criminal Appeal No. 57 of 1983 to the Sessions Court, Jamnagar. It may be noted that State did not prefer any appeal or revision application against acquittal of accused for an offence punishable under Sec. 85(1)(3) of the Act. The learned Appellate Judge heard the arguments of the learned advocates of both the parties, and after perusal of Record and Proceedings of the case, and after re-appreciating the evidence led by the prosecution in the trial court, he was pleased to come to a conclusion that the judgment of conviction and sentence is correct and according to law, and therefore, he was pleased to dismiss the appeal filed by accused and by dismissing that appeal, he was pleased to confirm the judgment i.e. order of conviction and sentence passed by the learned Magistrate who rendered his judgment in Column No.7 of Ex.2, on 12-12-1983. 4. Being aggrieved against and dissatisfied with the judgment Ex.11 dt. 24th Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with regard to powers which can be exercised by this court under Sec. 401 of Cr.P.C., now I will discuss the rival contentions of both the parties. (i) Shri Joshi, the learned advocate for the revision petitioner has argued that as per the report of Chemical Analyzer Ex.11, and as per case of the prosecution, ethyl alcohol in quantity of 0.0644 % weight by volume was found in the blood sample of accused, and both the courts below have, by taking into consideration Sec. 66(2) of the Act raised the presumption that accused had consumed liquor and the accused has not rebutted that presumption, and therefore, the accused has been convicted by the trial court and ultimately the conviction has been confirmed by the learned Appellate Judge. (ii) Shri Joshi has further argued that the report of Chemical Analyzer Ex.11 can only be taken into consideration, if that report is issued under Sec. 129B of the Act. He has further argued that if any document purporting to be a certificate under the hand of Chemical Examiner or Assistant Chemical Examiner to Government under Sec. 129A of the Act is issued, then it can be used as evidence of facts stated in such certificate. In view of Sec. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. It would not be necessary for the prosecution to show that the phial was shaken vigorously. It is also not necessary that the doctor who is examined, shall keep before him the text of the rule and should depose to having complied with every small requirement enjoined by the rule and having performed every part of the act in accordance with the procedure prescribed. 7. Shri Joshi has taken this Court through the evidence of four witnesses examined by the prosecution in the case before the trial court. He has argued that looking to Rule 4 of the Rules, the Medical Officer who collected the blood sample of the accused, ought to have cleaned with 1% aqueous solution of mercurochrome or genitor violet, not containing alcohol or its solution the skin surface of that part of such person's body from which he intends to withdraw the blood, and no alcohol shall be touched at any stage while withdrawing blood from the body of the person. Shri Joshi has then argued that looking to the evidence of Dr. I.M. Joshi, he cleared the surface of skin with pad of hot water. At the same time, he has also deposed that without using spirit, he took 5 c.c. blood sample from the vein of the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Full Bench decision. (ii) Another contention of Shri Joshi is that the Doctor is required to collect the blood sample in a syringe and transfer it into phial containing anticoagulant and preservative and then that phial shall be shaken vigorously to dissolve anticoagulant and preservative. The Doctor has deposed in his evidence that blood sample which he collected was transferred in phial which he had prepared with anticoagulant and preservative. If he had prepared that phial with anticoagulant and preservative, then to my mind, there is no violation of Rules 4. (iii) Shri Joshi argued that the Doctor ought to have made it clear as to from where and when anticoagulant and preservative were brought and at what place that substances were preserved. Looking to Rule 4, no such requirement is necessary. Once he says that he had prepared the phial with anticoagulant and preservative, then Rule 4 is substantially complied with. Only a suggestion was put in the cross-examination that he did not personally add the anticoagulant and preservative in the phial. That suggestion has been denied by the Doctor. In cross-examination, more than one suggestions were put to which the Doctor has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing entire evidence of Doctor, it is crystal clear that the syringe was cleaned, and therefore, the contention taken by Shri Joshi that Doctor has not deposed that syringe was sterilized by putting it in boiling water is of no merits. As discussed earlier, every part of part of Rule 4 is not mandatory. Mr. Joshi has not produced any citation on the point that Doctor should depose specifically in terms that he collected the blood sample with the help of sterilized syringe which he had put previously in the boiling water. This requirement is a directory in nature, and therefore, it cannot be said that Rule 4 is contravened. 9. Shri Joshi has further argued that here in this case, the Doctor has contravened the provision of Rule 4 of the Rules by not affixing his official seal or his monogram on the phial which he had sealed by using sealing wax. Here in this case, the Doctor has deposed that he had affixed the seal of "Medico Legal Gujarat " on the phial which he had sealed and he also put a fascimile of the said seal on the forwarding letter which is in the prescribed Form B. That Form B is at Ex.10. Shri Joshi has put much emphasis on this point on the ground that admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Gujarat " on the phial as well as its fascimile in Form B. When Dr. Joshi was serving as a Medical Officer in the hospital, he can use official seal of Hospital i.e. "Medico Legal Gujarat " . In view of Full Bench decision of Chamanbhai Gangaram Vankar (supra), the authority of Mahiji Lakhabhai (supra) will not be applicable to the facts of this present case. 10. Shri Joshi has made an attempt to challenge the report of Chemical Examiner on the ground that Dr. Joshi who forwarded the phial of blood sample of accused along with forwarding letter in Form B did not put fascimile of seal used by him on said Form B, and therefore, Rule 4 is contravened. At his request, Record and Proceedings of the case were called for and by showing the forwarding letter Form B Ex.10, he tried to convince the court that there is no fascimile of seal impression on forwarding letter Ex.10. It may be noted that this forwarding letter Ex.10 was written on or about 7th December, 1982 and in later half of the year 2000, Shri Joshi had shown letter Ex.10 to this court. Naturally after lapse of about 18 years, the seal affixed on which fascimile of seal which was put might have beeen severed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emical Examiner under forwarding letter Ex.10 on 7th December, 1982. As stated in that Chemical Examiner report Ex.11, it was received by the Chemical Examiner on 9th December, 1982, and therefore, that blood had reached to the Testing Officer within seven days and therefore, the question does not arise for delay in sending the blood sample to the Testing Officer. Shri Joshi has tried to twist the matter by saying that analysis of blood was performed on 3rd January, 1983, and therefore, it can be said the phial was reached to Testing Officer after seven days. This argument cannot be accepted because as per the authority cited by Shri Joshi, the sample of blood should reach to the Testing Officer within seven days, and therefore, this contention based on the authority in the case of STATE OF GUJARAT, BAPUJI SAVAJI, reported in 1990(2) G.L.H. 451 cannot be accepted. 14. Lastly, Shri Joshi has argued that in this case, when Rule 4 is not complied with, presumption cannot be drawn and on this point, he has cited an authority in case of MALAHAVARAO BHAGWANDAS KHARADE vs. STATE OF GUJARAT, reported in 1971, 12 G.L.R. Page 956. This authority can only be made applicable, if this court fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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