Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 is directory and not mandatory.

JUDGMENT - H.W. DHABE, J.:---This is an appeal by the State against the acquittal of the respondent-accused, who was charged with the offence under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act. According to the prosecution, the respondent-accused went to the Dipali Lodge at about 6 p.m. on 4-8-1984 and rented cot therein entering his name himself in the Lodge Register. However, thereafter he immediately left the lodge and came to the Lodge again at about 8.30 p.m. The Manager of the Lodge Kautik Baburao Lokhande found that the respondent-accused was smelling of and was under the influence of alcohol and was not in a position to talk properly.

2. According to the prosecution, the accused again went away in the drunken condition and came to the Lodge at about 10 or 11 P.M. The Manager of the Lodge asked him to go to his bed. However, at about 1.30 or 1.45 A.M. on 5-8-1984. i.e. during the night hours, the accused got up and started shouting by sitting on the cot itself. He also started abusing the Manager Kautik (P.W. 2). Since the accused was disturbing other customers in the Hotel, the Manager tried to pacify him. He also talked with the police on phone. The accused, however, got up again and started abusing the Manager. Thereafter he went out to the Police Control Room and brought one policeman with him to the Lodge. He demanded his handbag containing some packets which the Manager had earlier refused to return by asking him to take it on the next day in the morning. However, when the accused accompanied by the policeman came, the said hand-bag was handed over to him, but the accused made a grievance that one packet was missing from the hand bag. He started abusing the Manager again. Thereafter he was taken in the police jeep to the Police Station. The PSI of the Police Station who also smelt of alcohol, sent him for medical examination Dr. Shivling (P.W. 3). examined him. He also extracted his blood for being sent to the Chemical Analyser. He gave the certificate that the accused was under the influence of alcohol. The Chemical Analyser to whom the blood sample of the accused was sent, his report. The prosecution was thereafter launched against the accused under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act, 1949.

3. The learned trial Court held that there was non-compliance with the mandatory requirements of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959. According to him, the syringe used for extracting the blood was not sterilized. The blood extracted was only 2 ccs and not 5 ccs as required by Rule 4 of the said rules. He further found that there was no evidence to show that the blood collected in the syringe was transferred into a phial containing anticoagulant and preservative and that the phial was shaken vigorously to dissolve the anticoagulant and preservative in the blood. In view of the non-compliance with the above requirements of Rule 4, which he held to be mandatory relying upon some decisions of this Court referred to by him, he acquitted the accused of the offences punishable under sections 66(1)(b) and 85(1) of the Bombay Prohibition Act.

4. The learned Counsel for the State has urged before me that Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 (for short 'the Rules'), is not mandatory, but is directory. In support of his contention, he has relied upon a Division Bench decision of this Court in the case of (Narayan v. State)1, A.I.R. 1967 Bombay 213. The learned Counsel for accused has, however, relied upon the judgement of the Single Judge of this Court in the case of (Tulsiram Raykar v. State of Maharashtra)2, 1977 U.C.R. (Bom.) 532 in support of his contention that the said Rule 4 is mandatory. He has also relied upon the decision of an other learned Single Judge of this Court in the case of (Shrawan v. State)3, 1979 Bom.C.R. 419 as also in the case of (Rangnath v. State)4, Mah.L.R. 1983 Bom.

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