1. Conviction for consumption of intoxicant under Section 66(1)(b), Bombay Prohibition Act — Presumption based on blood alcohol concentration — Admissibility of blood sample collected outside Section 129A. (Para 1 , 2 , 7 )
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1963 Supreme(SC) 39
Supreme Court Of India
B.P.SINHA, C.J.I., P.B.GAJENDRAGADKAR, K.N.WANCHOO, K.C.DAS GUPTA,J.C.SHAH, JJ.
Ukha Kolhe - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 131 of 1962
Decided On : 02/11/1963
Advocates Appeared:
M/s. R. K. Garg S.C. Agarwala and M. K. Ramamurthi Advocates of M/s. Ramamurthi and Co., for Appellant; Mr. C. K. Daphtary, Solicitor General of India and Mr. N. S. Bindra, Senior Advocate, (Mr. R.H. Dhebar, Advocate, with them), for Respondent.
M/s. R. K. Garg S.C. Agarwala and M. K. Ramamurthi Advocates of M/s. Ramamurthi and Co., for Appellant; Mr. C. K. Daphtary, Solicitor General of India and Mr. N. S. Bindra, Senior Advocate, (Mr. R.H. Dhebar, Advocate, with them), for Respondent.
Blood alcohol reports are admissible under Section 510 CrPC even if not collected via the compulsory procedure of Section 129A of the Bombay Prohibition Act, provided collection didn't occur during a police investigation. Retrials cannot be ordered solely to cure the prosecution's failure to lead proper evidence.
Headnote:(A) Bombay Prohibition Act, 1949 - Sections 66(1)(b), 66(2), 129A, and 129B; Code of Criminal Procedure - Sections 428(1), 510, and 162 - Consumption of intoxicant - Presumption of guilt based on alcohol concentration in blood - Admissibility of chemical examiner's report - Section 129A provides a mechanism to compel medical examination and blood collection during an investigation, but Section 129A(8) explicitly allows the fact of consumption to be proved by other means. Since Section 66(2) creates a presumption based on alcohol concentration without prescribing a mandatory method of proof, reports obtained outside the scope of Section 129A (e.g., before an investigation starts) are admissible under the general provisions of Section 510 of the Code of Criminal Procedure. (Paras 14-20)
(B) Criminal Procedure - Retrial - An order for retrial is made only in exceptional cases and not merely to enable the prosecution to rectify infirmities or lead evidence it failed to produce due to insufficient appreciation of the case. If additional evidence is necessary to ensure a just decision, the appellate court should resort to the procedure under Section 428(1) of the Code of Criminal Procedure rather than reopening the entire proceeding. (Paras 11-12)
(C) Evidence - Chain of custody - While formal evidence regarding the handling, storage, and sealing of a blood specimen is necessary to discharge the burden of proof in a criminal case, such evidence may be permitted to be led in appeal to regularize the trial and ensure the case is established beyond reasonable doubt. (Paras 8, 12)
Facts of the case:
An accused was charged with consuming an intoxicant following a motor vehicle accident. A blood sample was collected by a medical officer at a hospital before a police investigation had commenced. The chemical analysis revealed an alcohol concentration exceeding the statutory limit, leading to a conviction by the trial magistrate. The sessions court set aside the conviction and ordered a retrial, citing gaps in the evidence regarding the chain of custody of the sample and the procedure of collection, noting that the trial was not "fair and full."
Findings of Court:
The court found that the trial suffered from irregularities regarding the proof of the sample's integrity and the lack of evidence concerning its storage. However, it held that a full retrial was not the appropriate remedy for deficient prosecution evidence. It further determined that the report of the chemical examiner is admissible even if the blood was not collected under the compulsory procedure of the Prohibition Act, provided the collection did not occur during a police investigation in a manner that bypassed the statutory safeguards.
Issues: Whether the report of a chemical examiner is inadmissible if the blood sample was not collected according to the procedure in Section 129A of the Prohibition Act, and whether a retrial is the correct remedy when the prosecution fails to lead necessary evidence.
Ratio Decidendi: Section 129A is intended to provide a means of compelling a suspect to submit to examination; it does not exclude other methods of proving consumption, as affirmed by Section 129A(8). Consequently, reports of alcohol concentration obtained independently of a police-led investigation are admissible under Section 510 of the Code of Criminal Procedure. Regarding procedural errors, retrials are not granted to fill lacunae in the prosecution's case; the proper legal recourse is the admission of additional evidence under Section 428(1) of the Code of Criminal Procedure.
Result: Appeal dismissed subject to modifications.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Admissibility of blood alcohol reports collected outside Section 129A procedure — Whether Section 510, CrPC is superseded by Section 129B of the Bombay Prohibition Act. (Para 13 , 20 , 21 , 22 )
3. Analysis of Section 129A(8) allowing alternative proof of consumption — Evaluation of the scope of Section 510, CrPC versus special provisions of the Prohibition Act. (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 )
4. Blood samples collected before investigation or not by police officers are admissible under Section 510, CrPC, as Section 129A(8) permits proof of consumption by other means. (Para 15 , 20 )
5. Appeal dismissed — Order of trial magistrate set aside — Sessions Judge directed to hear appeal and allow additional evidence to ensure a just decision. (Para 24 , 25 )
6. Can the fact that an accused consumed an intoxicant be proved by methods other than those prescribed in Section 129A of the Bombay Prohibition Act?
Yes. Section 129A(8) expressly provides that nothing in that section precludes the fact that an accused has consumed an intoxicant from being proved otherwise than in accordance with its provisions. (Para 15 , 19 )
7. Does Section 129B of the Bombay Prohibition Act completely supersede Section 510 of the Code of Criminal Procedure regarding Chemical Examiner reports?
No. While Section 129B governs reports obtained during an investigation under Section 129A, reports of blood collected when no investigation was pending or not at the instance of a police officer remain admissible under Section 510, CrPC. (Para 20 )
8. Can an appellate court order a retrial solely because the prosecution failed to produce the proper evidence or failed to prove its case effectively?
No. Retrials are for exceptional cases involving lack of jurisdiction or serious illegalities. If additional evidence is needed to prevent a miscarriage of justice, the court should use the procedure under Section 428 of the Code of Criminal Procedure. (Para 11 , 12 )
9. What is the legal effect of proving a blood alcohol concentration of 0.05% or more under Section 66(2) of the Bombay Prohibition Act?
Such proof creates a presumption that the accused consumed liquor in contravention of the Act, shifting the burden to the accused to prove the liquor was a permitted medicinal, toilet, or antiseptic preparation. (Para 6 , 14 )
Judgement
SHAH, J. (with him B. P. Sinha C.J.I., K. N. Wanchoo and P.B. Gajendragadkar JJ.) On April 3, 1961 at about 2-30 a.m., a motor vehicle fell into a ditch by the side of a highway near Edlabad, District Jalgaon and all the occupants of vehicle were injured. One Mohamad Yusuf who was in that vehicle died of the injuries. The appellant was tried before the Judicial Magistrate, First Class, Bhusawal, for offences of rash and negligent driving when he was under the influence of liquor and thereby causing the death of Mohamad Yusuf and injuries to four other occupants of the motor vehicle and also for offences under the Motor Vehicles Act. The trial Magistrate held that the evidence was not sufficient to prove that the appellant was driving the motor vehicle at 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 the appellant, and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs.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 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.
2. 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 several persons including the appellant were injured. At about 6 a.m. the appellant reached the Civil Hospital, Jalgaon. One Dr. Kulkarni, Resident Medical officer of the Hospital informing him about the death of Mohamad Yusuf, the appellant fainted and he was admitted as an indoor patient in the Hospital. On examination, the appellant was found "smelling of alcohol". Dr. Kulkarni thereupon directed one Dr. Rote to collect a specimen of blood from the body of the appellant, and accordingly some Venus blood was collected in a phial. the phial was closed in the presence of Dr. Rote and sealed. But before treatment could be given to the appellant, he was discharged from the Hospital at the request of some persons who accompanied him. The blood specimen remained in the Hospital. Information about the mishap to the motor vehicle was received by the police at Jalgaon at about 8 a.m. on that day and a case was registered against the appellant and four other persons for certain offences under the Indian Penal Code and the Motor Vehicles Act, and on receiving information that all the incumbents of the motor vehicle were at the time of the mishap in a state of intoxication, also under S. 66(1) (b) of the Bombay Prohibition Act XXV of 1949. The Officer in charge of the investigation sent the appellant to the Civil Hospital for medical examination. The condition of the appellant was found by Dr. Kulkarni to be normal. A specimen of the appellants blood was again collected at about 11 a.m., and was sent to the Chemical Analyser, for examination and report. On April 12, 1961, the sub-Inspector in charge of the investigation came to learn that a specimen of blood of the appellant had been taken by the Hospital authorities early in the morning of April 3, 1961. On demand by the police officer the Medical Officer delivered the phial containing the blood specimen together with a certificate from Dr. Rote that a blood specimen of the appellant was collected by him at 6 a.m. on April 3, 1961. The investigating officer affi
