Compliance with Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, is essential for the validity of a conviction under Section 85 of the Bombay Prohibition Act.

JUDGMENT - M.L. PENDSE, J.:---By this revisional application, the accused is challenging the legality of his conviction recorded by the trial Magistrate by judgment dated September 28, 1971 for an offence under section 85 of the Bombay Prohibition Act and section 112 read with section 117 of the Bombay Police Act and confirmed by the Additional Sessions Judge. Thane, by judgment dated December 18, 1979. The trial Magistrate had imposed the sentence of rigorous imprisonment for six months and the fine of Rs. 1000/-, in default rigorous imprisonment for three months for an offence under section 85 of the Bombay Prohibition Act and the sentence of fine of Rs. 100/- in default, rigorous imprisonment for 7 days for an offence under section 112 read with section 117 of the Bombay Police Act. The Additional Sessions Judge while confirming the sentence for the offence under the Bombay Police Act, reduced the substantive sentence to the period already undergone for an offence under section 85 of Bombay Prohibition Act and retained the fine.

2. The incident which gave rise to the prosecution occurred on April 3, 1975. The petitioner was attached to the Shahapur Police Station as Police Head Constable. Complainant Karpate was the Police Sub-Inspector in charge of Shahapur Police Station. On the day of the incident, the accused went to the residential quarters of the Police Sub-Inspector-Karpate and questioned him about his salary for the month of March. Karpate noticed that the accused was under the influence of liquor and directed him to go to the Police Station. After a short while Karpate himself went to the Police Station and the accused started hurling abuses at Karpate at the Police Station. As the behaviour of the accused was indecent and he was uttering filthy abuses. Head Constable Deshmukh and Constable Bhuke who were present at the Police Station caught hold of the accused and Police Sub-Inspector Karpate made a Station diary entry about the behaviour of the accused. The panchanama was then drawn up about the condition of the accused and the accused was sent to Dr. Deshpande who was in charge of the Medical Dispensary at Shahpur. Dr. Deshpande issued certificate about the condition of the accused and also collected the blood which was forwarded to the Chemical Analyser. On receipt of the report of the Chemical; Analyser, the accused was tried for the offence under section 85 of the Bombay Prohibition Act and section 112 read with section 117 of the Bombay Police Act.

3. The accused denied the commission of the offence and claimed that he was falsely involved. The prosecution examined Sub-Inspector Karpate, Head Constable Deshpande and Constable Bhuke in support of the prosecution case. In addition, Dr. Deshpande who had taken the blood sample was also examined. The trial Magistrate, on appreciation of evidence, found that the prosecution has proved its case beyond any doubt and entered the order of conviction. The conviction was upheld by the Additional Sessions Judge in an appeal carried by the accused to the Sessions Court and that order is under challenge.

4. Smt. Samant-Desai, the learned Counsel appearing on behalf of the petitioner-accused submitted that the prosecution evidence that the accused had consumed liquor and hurled abuses at Police Sub-Inspector Karpate is not established by the evidence on record. It is not possible to accept this submission. The two courts below have concurrently found that the evidence, of P.W. 1 Karpate, Head Constable Deshmukh and Constable Bhuke is acceptable and that conclusion based on appreciation of evidence cannot be disturbed in this revision application. Smt. Samant-Desai then submitted that Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 was not complied with and relied upon the decision of the Single Judge in Criminal Revision Application No. 177 of 1979 decided on July 10, 1979. Rule 4 requires that the Medical Practitioner shall use a syri

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