1963 Supreme(Bom) 85
IN THE HIGH COURT OF BOMBAY
Patel D.V.and Gokhale H.R. JJ.
Appellants: State
Vs.
Respondent: Sheshappa Dudhappa Tambade
Criminal Ref. No. 10 of 1963
Decided On: 15.10.1963
Counsels:
For Appellant/Petitioner/Plaintiff: Adv. General and M.A. Rane, Asst. Govt. Pleader
For Respondents/Defendant: H.D. Gole, Adv. for S.B. Bhasme and G.R. Rege, Advs.
Headnote:
The Bombay Prohibition Act, 1949, was enacted to promote and enforce the policy of prohibition and to consolidate the law relating to intoxicating liquors. Section 129-A of the Act empowers prohibition officers and police officers to produce a person before a registered medical practitioner for the purpose of medical examination or collection of blood, if there is reasonable ground to believe that the person has consumed an intoxicant. The accused challenged the validity of Section 129-A on the grounds that it violated Articles 21 and 31 of the Constitution of India.
Fact of the Case:
The accused was charged with offences under Section 85(1), (2), and (3) of the Bombay Prohibition Act and Section 186 of the Indian Penal Code. The allegations against the accused were that he was found drunk in a public place, incapable of taking care of himself, and behaved in a disorderly manner under the influence of drink. He also resisted a medical officer who attempted to collect his blood for testing.
Finding of the Court:
The Court held that Section 129-A of the Bombay Prohibition Act was not ultra vires Articles 21 or 31 of the Constitution. The Court found that the Act was a law relating to intoxicating liquors and that the provisions of Section 129-A were ancillary to the exercise of the legislative power under Entry 8 of List II (State List) of the Seventh Schedule of the Constitution. The Court also held that the procedure for the collection of blood under Section 129-A was established by law and that the deprivation of liberty involved in the procedure was not unreasonable.
Issues: 1. Whether Section 129-A of the Bombay Prohibition Act, 1949, is ultra vires Article 21 of the Constitution of India? 2. Whether Section 129-A of the Bombay Prohibition Act, 1949, is ultra vires Article 31 of the Constitution of India?
Ratio Decidendi: 1. The Court held that Section 129-A of the Bombay Prohibition Act was not ultra vires Article 21 of the Constitution because the procedure for the collection of blood under the section was established by law and the deprivation of liberty involved in the procedure was not unreasonable. 2. The Court held that Section 129-A of the Bombay Prohibition Act was not ultra vires Article 31 of the Constitution because the Act was a law relating to intoxicating liquors and the provisions of Section 129-A were ancillary to the exercise of the legislative power under Entry 8 of List II (State List) of the Seventh Schedule of the Constitution.
Final Decision: The Court rejected the reference made by the joint Civil Judge and Judicial Magistrate First Class, Islampur, and directed that the papers of the case be sent back to the learned Magistrate for the further disposal of the case according to law.
JUDGMENT - 1. A rather interesting question relating to the validity of Section 129A of the Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), arises in this reference made to this Court by the joint Civil Judge and Judicial Magistrate First Class, Islampur, under Section 432 of the Criminal Procedure Code. One Sheshappa Dudhappa Tambad of Chikorde in the Sangli District is charged with having committed offences under Section 85(1), (2) and (3) of the Bom-bay Prohibition Act and Section 186 of the Indian Penal Code. The allegation against the accused was that he was found drunk in a public place, incapable of taking care of himself and behaved in a disorderly manner under the influence of drink and had, as such committed offences under Section 85 (1) (2) and (3) of the Act. The other charge against the accused was that he voluntarily obstructed a public servant in the discharge of his public functions, inasmuch as, he offered resistance to the medical officer before whom he was produced and refused to allow the medical officer to collect his blood. Section 129-A empowers any Prohibition Officer duly empowered in this behalf by the State Government or any police officer to produce a person before a registered medical practitioner (authorised by general or special order by the State Government in this behalf), for the purpose of medical examination or collection of blood, if in the investigation of any offence under the Act, he has reasonable ground for believing that the person has consumed an intoxicant or for the procuring of evidence thereof it is necessary that his body be medically examined, or that his blood be collected for being tested for determining the percentage of alcohol therein. The section enables the Prohibition Officer or the police officer to request the medical practitioner to furnish a certificate on his finding whether such person has consumed any intoxicant and to forward the blood collected by him for test to the Chemical Examiner or Assistant Chemical Examiner to Government, or to such other officer as the State Government may appoint in this behalf. On such request being made by the Prohibition Officer or the police officer, the medical practitioner, before whom a person has been produced, is required to examine the person and collect and forward the blood of such person to the Chemical Examiner or Assistant Chemical Examiner to Government and to furnish to the officer, by whom such person has been produced, a certificate containing the result of his examination. The Chemical Examiner or Assistant Chemical Examiner to Government is required to certify the result of the test of the blood forwarded to him, stating therein, in the prescribed form, the percentage of alcohol, and such other particulars as may be necessary or relevant. If any person offers resistance to his production before a registered medical practitioner or on his production before such practitioner, offers resistance to the examination of his body or to the collection of his blood, the section also empowers the use of all means reasonably necessary to secure the production of such person or the examination of his body or the collection, of blood necessary for the test. Resistance to production before a registered medical practitioner or to the examination of the body or to the collection of blood is deemed to be an offence under Section 186 of the Indian Penal Code. The accused in this case was produced before the medical officer and it appears that he allowed himself to be examined by the medical officer. The allegation, however, is that he resisted when the medical officer proceeded to collect his blood. That is how he was charged with having committed an offence under Section 186, I. P. C. Before the learned Magistrate, Section 129-A was challenged on two grounds. One ground was that the section was ultra vires Article 31(2) of the Constitution inasmuch as Section 129-A or any other provision of the Act, did not provide payment o
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