Criminal Revision Application No.196 of 2002

29th August, 2002

Petitioner Counsel: P.V. MANDLIK
Respondent Counsel: V.D. SAPKAL

Cases Cited:
Bachubhai Hassanalli Karyani Vs. State of Maharashtra, 1971(3) SCC 930 [Para 3,5,9]
State of Maharashtra Vs. Raghunath Marathe, 1986(3) Bom.C.R. 341 [Para 10]

JUDGMENT

N. V. DABHOLKAR, J.:- Heard learned Counsel for the parties. Rule. Rule made returnable forthwith for hearing by mutual consent.

2. Present petitioners approach this Court against concurrent conviction imposed upon them for the offence punishable under section 85(1)of Bombay Prohibition Act. Judicial Magistrate (F.C.), Naigaon (Bazar) by his judgment and order dated 2-1-1998 delivered in Summary Criminal Case No.331/1996 held them guilty for the said offence and sentenced each of them to suffer R.I. for three months, fine of Rs.300/-, i/d R.I. for 5 days. This conviction was confirmed by Additional Sessions Judge, Biloli,while dismissing Criminal Appeal No.1/1998 by his judgment and order dated 3-8-2002. Petitioners are in jail since then.

3. Being a revision petition and realising its limited scope, Advocate Shri.Mandlik has mainly relied upon a proposition that drunkenness is not conclusively proved. Relying upon Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, and judgment of the Supreme Court reported at 1971 (3) Supreme Court Cases 930 (Bachubhai Hassanalli Karyani Vs. State of Maharashtra), Shri. Mandlik propounded :

"Drunkenness cannot be said to be conclusively proved, unless urine or blood test is carried out. Mere smelling of alcohol, unsteady gaits, dilation of pupils and incoherence of speech is not enough."

4. Learned A.P.P. has replied the argument by contending that what should be the nature of evidence and standard of proof and when the courts can arrive at a conclusion that accused was under influence of alcohol is not prescribed in Bombay Prohibition Act, much less the Act or Rules contemplate examination of urine and blood in every case as mandatory requirement, where prosecution alleges that accused was under influence of alcohol. He has urged that Bachubhai's case and observations of the Supreme Court are being wrongly interpreted by his counter part. On the contrary, the Apex Court has clearly indicated by contents in the judgment itself that observations, if any, are for the purpose of case before it and the Supreme Court has not laid down any ratio, as tried to be argued.

5. Case of Bachubhai Vs. State of Maharashtra, 1971(3) Supreme Court Cases 930 was also cited before trial Court and Sessions Court and both the courts have held the case to be not applicable to the matter at hand in view of distinction of facts.

In the matter of Bachubhai, the appellant was convicted by Presidency Magistrate, Girgaon, Bombay for the offence of rash and negligent driving i.e. sections 304-A, 337 of I.P.C. and also section 117 of Motor Vehicles Act. Substantive sentences and fine was imposed on all counts. The Counsel for the appellant had expressed grievance about the heavy sentence, which was imposed and felt justifiable also by High Court on the observations that appellant was found drunk, while driving in excessively high speed. The Supreme Court accepted the argument of the learned Counsel that on the evidence, it could not be definitely held that appellant was drunk at the time accident occurred, and consequently also the prayer for lenient sentence.

6. The nature of evidence before the trial Court in that case, is discussed in para 4 of the reported judgment. The observations that appellant was drunk (under the influence of alcohol) were based on evidence of Dr. Kulkarni and conclusion was drawn by Dr. Kulkarni due to observation that appellant's breath was smelling of alcohol, gait was unsteady and speech was incoherent and pupils were dialated. In fact, all four possible symptoms of drunkenness were favourable to the conclusion of appellant being under influence of alcohol, but the submission of Counsel for appellant was accepted that the evidence was not sufficient to hold that appellant was drunk. This is because the doctor, who was examined as a witness, had admitted that a person placed in the circumstances in which the appellant was put as a result of accident, would be under a nervous strain, his gait may be unsteady. The Medical Officer also admitted that even a person not under the influence of alcohol could smell of alcohol. In the reported matter, there was no urine or blood test. It was in the light of this type of evidence, the Supreme Court observed in para 5 of the judgment;

"It seems to us that on this evidence, it cannot be definitely held that the appellant was drunk at the time the accident occurred."

Para 5 is eloquent. It is difficult to agree with the submission of Shri. Mandlik that by this para, the Hon'ble Apex Court has laid down a principle that in every matter wherein report of chemical analysis of the urine and blood samples of the accused are not obtained to establish existence of particular percentage of alcohol, the Court must record a negative finding on the issue of accused being under the influence of alcohol. Eventually Shri. Mandlik has relied upon the head note, which is borrowed by him as his proposition reproduced above. However, as can be seen from the facts discussed, existence of all clinical symptoms upon which Medical Officer in that case recorded a conclusion that accused was under influence of alcohol, was substantially weakened by his admission regarding the state in which accused was produced before him i.e. immediately after the accident, and due to which Medical Officer could not have relied upon two out of the four symptoms i.e. unsteady gait and incoherent speech, which could have been the result of the shock suffered by the accused as a result of accident. On the contrary, the observations in para 5 clearly indicate that the Apex Court held that appellant not being under influence of alcohol, in that particular case because of particular nature of evidence. Argument of Advocate Shri.Mandlik that the Supreme Court has laid down a ratio that there ought to be chemical analysis of blood and urine sample of the accused, before Court can record a finding that accused was under the influence of alcohol is, therefore, not acceptable.

7. Although Shri Mandlik has placed reliance on Rule 4 of the Bombay Prohibition (Medical Examination and Blood Tests) Rules, 1959, the same is pertaining to manner of collection and forwarding blood. A reference may usefully be made to Rule 3 of the said Rules which throws light upon the aspect whether taking urine and blood sample is mandatory. Rule 3 reads as follows :

Examination

A registered medical practitioner before whom a person is produced under sub-section (1) of section 129-A of the Act by a Police Officer or a Prohibition Officer for the purpose of medical examination of such person or collection of his blood shall examine such person and, if he deems necessary, collect and forward in the manner prescribed in these Rules, the blood of such person and furnish to the officer by whom such person was produced a certificate in Form 'A' containing the result of his examination and shall keep a copy of such certificate on his record."

As can be seen from the portion underlined for the purpose of emphasis, when a person is produced before a registered medical practitioner under sub-section (1) of section 129-A of the Prohibition Act, he is obliged to examine such person. Collection of blood sample is not mandatory, as can be seen from the phrase "if he deems necessary". Collection of blood sample is left at the discretion of Medical Officer and he should do so, if he is unable to arrive at a conclusion whether the person is/is not under the influence of alcohol, after clinical examination.

There may arise such necessity in multiple types of circumstances.One such circumstance has occurred in the reported judgment of the Supreme Court relied upon by Advocate Shri Mandlik. Two out of four clinical symptoms could exist as a result of shock suffered by the driver-accused, as a result of accident. There may be a case when the accused is produced before the Medical Officer/registered medical practitioner, after considerable time gap since the incident, may be due to the distance between the place where he is arrested and the place of Police Station and Medical Officer, or for other reasons beyond the control of police, such as non-availability of Medical Officer immediately after arrest. With the passage of time, symptoms of influence of alcohol subside and in such case, the Medical Officer may have to use his discretion and decide that it is necessary to obtain blood sample, before he can opine that the accused is/is not under influence of alcohol.

8. Taking into consideration the judgment relied upon, it is not possible to accept the argument of Advocate Shri Mandlik that the Supreme Court has laid down a ratio that reports of analysis of blood and urine samples are mandatory for concluding that accused was under the influence of alcohol. On the contrary, on reference to Rule 3, it is evident that taking of blood and urine samples is not mandatory, but Medical Officer has to use his discretion as to when he should obtain such report of urine and blood examination, before recording his opinion that accused was under influence of alcohol.

9. Shri. Mandlik also placed reliance on unreported judgment of this Court in Criminal Revision Application No. 199/1987. According to Advocate Shri. Mandlik, learned Single Judge has also laid down a ratio that for conclusive proof of drunkenness, urine and blood test is required to be carried out. It is not possible to agree with the submission of Advocate Shri Mandlik. The relevant portion of the observations in that judgment reads as follows :

"In Bachubhai Hassanalli Karyani Vs. State of Maharashtra, (1971(3) Supreme Court Cases 930), the Supreme Court has held that drunkenness cannot be said to be conclusively proved unless urine or blood test is carried out."

Thus, it can be seen that these are the expressions of learned Judge about his interpretation regarding the ratio laid down by the Apex Court in the matter of Bachubhai Hassanalli.

In fact, in this revision, the learned Judge has also observed that admittedly in that case, there was no medical evidence on record. Advocate Shri Mandlik, who had conducted that matter throughout, after referring to his paper book has confirmed that only three Policemen and panch witnesses were examined and there was no evidence of Medical Officer nor medical evidence in the form of certificate. Therefore, by taking a view, as discussed earlier, I am not taking any view different than the ratio already laid down by another Single Judge of this Court. In the unreported judgment, the learned Single Judge was of the view that ratio laid down in the judgment of Supreme Court was applicable to the matter before him. I hold different view so far as applicability of observations in Bachubhai Hassanalli's case to the matter, which is being considered by me.

10. Shri. Mandlik has also tried to place reliance on the observations of this High Court in the matter of the (State of Maharashtra Vs. Raghunath Marathe) reported in 1986(3) Bombay Cases Reporter 341. Having gone through the facts and paras 7 to 12 of the judgment, learned Single Judge held that, if report of chemical analysis could not be accepted as correct for non compliance with the requirement of Rule 4, the presumption under section 66(2) would not be available to the prosecution as it was clear from sections 129-A and 129-B that if his report is to be read as evidence, then it has to be in the manner prescribed under Rule 4. Thus, the view taken by learned Single Judge is pertaining to admissibility of the report of analysis in the light of compliance or non compliance of Rule 4 and non shifting of burden of proof upon the accused to establish that he had consumed medicinal preparation. And in the present matter, it is not the defence of accused that they had consumed medicinal preparation.

The judgment makes no observations regarding standard of proof required for the purpose of establishing the fact of accused being drunken/ under the influence of alcohol. In para 7 itself, the learned Judge further observed that it is open for the prosecution to establish its case without treating it as a presumptive evidence under the aforesaid provisions. Thus, prosecution is not precluded from proving its case that accused had consumed an intoxicant without placing reliance upon the report of analysis. Extending the observations further, it must be said that prosecution also cannot be precluded from establishing the fact of accused being drunk by other evidence, in the absence of report regarding blood and urine samples.

No doubt, in the reported matter, the accused was acquitted so far as offence punishable under section 85(1) of the Act. However, on reference to paras 10 and 11, it can be seen that the learned Judge felt that identity of the person whose blood was extracted by Medical Officer was not established and prosecution was uncertain whether the incident had taken place on the night between 3rd or 4th August or on the night between 4th or 5th August.

11. Learned A.P.P. has also placed reliance upon section 129-A(8) of the Bombay Prohibition Act, 1949, but the same is also a provision which speaks about proof regarding consumption of intoxicant (and not of drunkenness).

12. As a second prong of his argument, Advocate Shri Mandlik has tried to argue that the complainant himself has not attributed drunkenness to the accused persons. Unfortunately, this argument is not available to Shri Mandlik because the complainant has stated that accused Gangadhar came there in drunken state. Moreover, after both the accused were medically examined and confirmed to be under influence of alcohol, mere omission on the part of complainant to describe them as under influence of alcohol may not provide an escape for the petitioners. In the present matter, Medical Officer was examined and subjected to cross-examination and although it was suggested to him during the cross-examination that finding regarding influence of alcohol cannot be given without blood and urine examination, he has denied the suggestion. In the cross-examination, there is no material by which it can be said that the reliability of Medical Officer's opinion was shaken indicating the necessity for blood and urine samples and report of analysis of the same.

13. For the reasons discussed above, the revision fails and concurrent finding of guilty recorded by lower courts calls for no interference. At this stage, Advocate Shri Mandlik vehemently urged for leniency. However, taking into consideration proviso to sub-section (1) of section 85, the sentence to be imposed cannot be less than three months except for special reasons and Shri Mandlik has not been able to provide any special reasons.

14. The revision petition is, therefore, dismissed. Rule discharged. Additional Registrar (Judicial) is directed to ensure that copy of this order is supplied to each of the petitioners through jail authorities.

Petition dismissed.