# PANDIT UKHA KOLHE p,hfuary1 111 v. THE STATE OF MAHARASHTRA

- **Citation:** [1964] 1 S.C.R. 926
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pandit-ukha-kolhe-p-hfuary1-111-v-the-state-of-maharashtra-2823
- **Pages:** 45

## Headnote

926 SUPREME COURT REPORTS [1964] VOL.
1963
PANDIT UKHA KOLHE
p,hfuary1 111
v.
,
THE STATE OF MAHARASHTRA
(B. P. SINHA, c. ]., P. B. GAJENDRAGADKAR,
I
'
K. :N. WA:!)CHOO, K. c. DAS GUPTA
and J.C. SHAH, JJ.)
--
Griminbl--'f.'.rial-,-Offence under Prohibition Ad-Blood
taken
before
start of inve.tiyation-Report
•f Gliemical
Examiner-Procedure prescribeil notfollowed-Admissibility
of report-R•-lrial, when can be orrlered:_Bombay Prohibition
Act, 1940 (Bom. 25 of [9~11) '8. G6, 12:/A, 129B-God< of
Criminal Procedure, 1891! (Act .5 of 1808), ss,_ ~8,_.510.
On account of injuries received in a motor accident the
appellant was taken to the hospital at 6 A. M. on April 3,
196!. As he was found 'smelling of alcohol, a specimen of his
blood was taken and collected
in
a phial. Subsequently,
when investigation
started this phial was taken by the rn.
vestigation Officer on April 13 and sent to the Chemical
Exa.111incr
on April 18. -On
examination, it was found to
ha\'e a concentration of alcohol in excess of that mentioned
in s. 66 (2) of Bombay Prohibition Act. The trial Court convicted the appellant relying upon the pr.,sumption arising on
the report of the Chemical Examiner.
On appeal, the Sessions
Judge found that nc evidence hap been produced regarding
ihe,safe custody of the phial from ,April 3 to April 18, regard·
ing its storage at a place where it was not liable to deteriorate
antl regarding its delivery to the Chemical
l~xan1iner, and
ortlcred a retrial. This order was upheld by th" High Court,
The appellant contended (i) that the report of the Chemical
Examiner \Vas not admissible in -evidence at the trial of the
appellant for an offeQce under the Bombay Prohibition Act as
the blond had not
be~n collected in the manner prescribed by
.,' 129 A, and (ii) that the order for a fresh trial was illogal.
Held, (per Sinh~, C. J., Gajendragadkar, · Wanchoo and
Shah JJ., Das Gupta, J. contra)
that the report of the
Chemical
Examinei ·was admissible
in evidence.
Section
12QA was intended· primarily for
compelling a person to
submit himself for medical examination and for collection of
blood; this power could be exercised only
in the course of
investigation of an offence under t'be Act and only when 11
-
..
•
1 S ;C.R.
SUPREME COURT REPORTS
927
Prohibition Officer or a Police Officer had reasonable ground
for believing that a person had consumed liquor. If tho
examination of · blood is made otherwise than in accordance
with s. 129 A the result may still be proved by virtue of subs. (8) to s. 129 A and there is nothing ins. 129A ors. 129B
which precludes proof of that fact if it tends to establish that
the person had consumed illicit Jiquor.
By enacting ss. 129 A
and l29B the law provided one method of collection of
evidence in respect of an offence under s. 66 (2) but it d id not
thereby exclude other methods. Bombay Act No. 12 of 1959
which introduced ss. 129 A and 129 B and which had been
reserved for the consideration of the Pre.ident and had received
his assent prevailed, in the State of Bombay, overs. 510 of the
Code of Criminal Procedure to the extent of inconsistency
between the two. Accordingly, the report of a Chemical
Examiner in respect of blood collected in the course of investiration of an offence under the Act otherwise than in the
manner set out in s. l 29A cannot be used in evidence, but a
report in respect of blood collected at a time when no investigation was pending or at the instance of a Police Officer or a
Prohibition Officer, is admissible under s. 510 of the Code.
· ..
Nazir Ahmad v. Tf,e King Emperor, (1936) L. R. 63 I.A.
372,. Taylor v. Taylor, (1875) 1 Cb. D. 426, Deep Chand
v. 8!11,te of Uttar Prade.h, [1959] Supp. 2 S. C.R. 8 and
Oh, Tikaramji v. State of Uttar Prade.h, (1956] S. C.R. 393,
referred to.
Held, further, that the order for retrial was bad and that
the Sossions Judge should himself take additional evidence in
respect of the safe custody etc. of the phial of blood. An
order for retrial of a 'Criminal ca

## Text

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926 SUPREME COURT REPORTS [1964] VOL.
1963
PANDIT UKHA KOLHE
p,hfuary1 111
v.
,
THE STATE OF MAHARASHTRA
(B. P. SINHA, c. ]., P. B. GAJENDRAGADKAR,
I
'
K. :N. WA:!)CHOO, K. c. DAS GUPTA
and J.C. SHAH, JJ.)
--
Griminbl--'f.'.rial-,-Offence under Prohibition Ad-Blood
taken
before
start of inve.tiyation-Report
•f Gliemical
Examiner-Procedure prescribeil notfollowed-Admissibility
of report-R•-lrial, when can be orrlered:_Bombay Prohibition
Act, 1940 (Bom. 25 of [9~11) '8. G6, 12:/A, 129B-God< of
Criminal Procedure, 1891! (Act .5 of 1808), ss,_ ~8,_.510.
On account of injuries received in a motor accident the
appellant was taken to the hospital at 6 A. M. on April 3,
196!. As he was found 'smelling of alcohol, a specimen of his
blood was taken and collected
in
a phial. Subsequently,
when investigation
started this phial was taken by the rn.
vestigation Officer on April 13 and sent to the Chemical
Exa.111incr
on April 18. -On
examination, it was found to
ha\'e a concentration of alcohol in excess of that mentioned
in s. 66 (2) of Bombay Prohibition Act. The trial Court convicted the appellant relying upon the pr.,sumption arising on
the report of the Chemical Examiner.
On appeal, the Sessions
Judge found that nc evidence hap been produced regarding
ihe,safe custody of the phial from ,April 3 to April 18, regard·
ing its storage at a place where it was not liable to deteriorate
antl regarding its delivery to the Chemical
l~xan1iner, and
ortlcred a retrial. This order was upheld by th" High Court,
The appellant contended (i) that the report of the Chemical
Examiner \Vas not admissible in -evidence at the trial of the
appellant for an offeQce under the Bombay Prohibition Act as
the blond had not
be~n collected in the manner prescribed by
.,' 129 A, and (ii) that the order for a fresh trial was illogal.
Held, (per Sinh~, C. J., Gajendragadkar, · Wanchoo and
Shah JJ., Das Gupta, J. contra)
that the report of the
Chemical
Examinei ·was admissible
in evidence.
Section
12QA was intended· primarily for
compelling a person to
submit himself for medical examination and for collection of
blood; this power could be exercised only
in the course of
investigation of an offence under t'be Act and only when 11
-
..
•
1 S ;C.R.
SUPREME COURT REPORTS
927
Prohibition Officer or a Police Officer had reasonable ground
for believing that a person had consumed liquor. If tho
examination of · blood is made otherwise than in accordance
with s. 129 A the result may still be proved by virtue of subs. (8) to s. 129 A and there is nothing ins. 129A ors. 129B
which precludes proof of that fact if it tends to establish that
the person had consumed illicit Jiquor.
By enacting ss. 129 A
and l29B the law provided one method of collection of
evidence in respect of an offence under s. 66 (2) but it d id not
thereby exclude other methods. Bombay Act No. 12 of 1959
which introduced ss. 129 A and 129 B and which had been
reserved for the consideration of the Pre.ident and had received
his assent prevailed, in the State of Bombay, overs. 510 of the
Code of Criminal Procedure to the extent of inconsistency
between the two. Accordingly, the report of a Chemical
Examiner in respect of blood collected in the course of investiration of an offence under the Act otherwise than in the
manner set out in s. l 29A cannot be used in evidence, but a
report in respect of blood collected at a time when no investigation was pending or at the instance of a Police Officer or a
Prohibition Officer, is admissible under s. 510 of the Code.
· ..
Nazir Ahmad v. Tf,e King Emperor, (1936) L. R. 63 I.A.
372,. Taylor v. Taylor, (1875) 1 Cb. D. 426, Deep Chand
v. 8!11,te of Uttar Prade.h, [1959] Supp. 2 S. C.R. 8 and
Oh, Tikaramji v. State of Uttar Prade.h, (1956] S. C.R. 393,
referred to.
Held, further, that the order for retrial was bad and that
the Sossions Judge should himself take additional evidence in
respect of the safe custody etc. of the phial of blood. An
order for retrial of a 'Criminal case is made only in exceptional
cases as it exposes the accused to another trial affording the
prosecution an opportunity to rectify infirmities disclosed at
the earlier trial. An order for retrial is not made unless the
·· .ppellate court is satisfied that the trial court had no jurisdiction to try the case. or that the trial was vitiated by serious
illegalities or irregularities or on accouyt of the misconception
of the nature of the proc~edings there has been no real trial
or that any of the parties had, for reasons over which it had
no control, been prevented from producing material evidence.
Since the Sessions Judge was of the view that "additional
evidence was necessary" he should have proceeded under
~a. 428 (1) of the Code.
Ramanlal Rathi v. State, A.I.R. (1951) Qal, 305, referred
"'·
/j63
Pandil Uklia Kolhl
••
The S:a11 qf
Maharas~tra
/HJ
p,.r1;1 Ulha Ko/h1
•.
'[Ju Stat1 of
~•·4.lhtra
SM.I, J
92S
SUPREME COURT REPORTS (ltlM] VOL.
Per Das Gupta,J.-Thercport of the Chemical faamincr
in respect of blood taken not in accordance with the provuiom
of s. 129A was not admissible.
In virw ofsu~s. (8) ofs. 129A
the fact that a person h;is consumed an intoxicant may be proved
by evidc11cc other than that made available under s. 129A; but
for the determination of the percentage of alcohol in the
bloo<l no other procedure except that provided by s. 129 A
was permiS!ihlc.
Section 66 (2), which provided for the
drawing of a presumption in favour of the prO!ccution if the
percentage
of alcohol
found
in
rhe
blood
of an
accused exceeded that rncntioned in the Section, was introduced
in the Act Ly t)1e very Amending Act which introduced s. 1!?9 A.
It was reaso11able lo infer that the legislature intended the
presumption under s. 66 (2) to be drawn only in C<ISCS where
the procedure prescribed bys. 129A had been followed.
Na:ir Ahmad v. The Ki•vJ PJmperQI', (1936) L. ll. 63
I. A. 372 relied on.
CRIMINAL APPEI.UTE J Ul\ISU!l'TION : Criminal.
Appeal No. 131 of 1962.
Appeal by special leave from the judgment
and order dated June 13, l!J62, of the Bombay High
Court in Crimina1 Revision Application No. 402 of
1962.
R. K. Gary, S. C.
Agarwa/a and M. K.
Ramamurthi, for the appellant.
C. K. Driphtary,
Solicitor-General of India,
N. 8. Bindra and R. H. Dhebar, for the respondent.
1963.
February 11. The followi.ng Judgments
were delivered by
SHAB, J.-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 the vehicle were injured.· One
Mohmad Ywuf who was in that vehicle died of the
injuries. The
appellant was tried before the
Judicial
Magistrate,
First
Class,
Bhusawal,
•
1 s.c.R.
SUPREME COURT REPORTS
929
for offences of rash and negligent driving when he
was under the influence of liquor and thereby
causing the death of Mohmad 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 materi,itl
time consumed illicit liquor and had
thereby
committed an offence punishable \inder 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 the 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
agairist the
order of the High Court.
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, 19Gl 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.
On Dr.
Kulkarni, Resident Medical Officer of the Hospital
informing him about the death of Mohmad Yusuf,
the appellant fainted and he was admitted as an indoor patient in the Hospital.
On examination, the
1?63
P•niil Ukli• Kolh<
v.
Thi Stot1 nf
Moh•ruhtra
Sh.Ji, J.
1963
!'..m1 Ukha KolA<
v.
Tiu Stall of
Mnht1ra;litra
~ho/i, }.
030 SUPREME COURT REPORTS [1964] VOL
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,
anJ accord1m;ly some venus blood wa~ collected in
a phial.
The phial was closed in the presence of
Dr. Rutc and scaled. But before treatment could
hr given to the appellant, he was di$charged from
the
Hospital at the request of some persons who
:iccompanicd him. The blood specimen remained
in the Huspital.
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. fill (b) of the Bombay
Prohibition
Act XXV of 1949. The Oflicer 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
appellant's 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 Offi1:er delivered the phial
containing the blood specimen together ~ith a certifica tc from Dr. Rote that a blood specimen of the
appellant was
collected by him at 6 a. m., on
April 3, J !Hi!.
The investigating officer affixed
an additional seal on the package and forwarded
the same with a special messenger to the Chemical
Examiner on April 18, 1961.
On examination vf
the contents of the phial it was found that there was
concentration of alcohol to the extent of 0·069 {>Cr
..
•
f
1 S.C.R.
SUPREME COURT REPORTS 931
cent w/v ethyl alcohol. This concentration being
in excess of the concentration mentioned in s. 66 (2)
• of the Bombay Prohibition Act, a complaint for the
offence under the Bombay Prohibition Act was also
lodged against the appellant.
At the trial, on behalf of the prosecution among
others were examined Dr. Kulkami, Dr. Rote and
the investigating officer. The report of the Chemical
Examiner was also tendered in evidence. But the
special messenger who carried the sample was not
examined ; nor was any evidence given about the place
A where and the condition in which the phial containing
the blood specimen was kept in the Hospital. The
appellant in his statement to the Court denied that
concentration of alcohol· detected by the Chemical
Examiner from the spedmen taken by Dr., ·
.. Rqte
exceeded 0.069 per cent w/v. He admitted, that on
April 3, 1961 he was in the Civil Hospital in the early
morning, that when he was told by Dr. Kulkarni
about the death of Mohamad Yusuf he "suffered a
" shock", that thereafter he went home immediately, and
during that time his" mental condition was not good".
He further stated :
~
"I fell unconscious. I was semi-consciouo.
Diifiiig that time my relations and friends gave
me certain liquid as a sort of medicine. I felt
like that. Then I was carried to the hospital in
the same condition.
As I regained my consciousness I told doctor that I want to
leav~ the
hospital because my friend was dead in hospital
and as I did not feel it proper to live in hospital
under such circumstances, so I left the hospital.
I do not know who gave me medicine when I
fell down on the road, after I had left the hospital. This was, when I left the hospital for my
home."
The defence of the appellant therefore was that when
he was informed about the death of Mohamad Yusuf
190
Pontit Ukha r. •/h,
••
The Stol1 r/
.,\,f<JiaraJlitra
~h•h. J.
1963
r1•Jil UkM Kolh1
••
Thi St4t1 of
M.Jiar&Jlttra
Shafi, J.
932
SUPREME COURT RhPORTS [Hl64]VOL.
he fainted and some medicinal preparation was administered to him by his friends to revive him and thereafter he was carried to the Civil Hospital. He has not
admitted that any specimen of blood from his uody
was collected, uut it appears to be his defence that if
cxccssi ve concentration of alcohol was traced in the
blood it was the result of some mediciual preparatio1.
administered to him by his friends.
·
Section uli(l) of the llumbay Prohibition Act, in
so far as it is material, provides :
"(l) Whoever in contravention of the provisions
ol this Act, or any rule, regulation, or order
made, or of any licence, permit, pass or authorization issued, thereunder-
(a)
x
x
x
(b) consumes, uses, possesses or transports any
intoxicant. ............. .
shall, on conviction, be punished -
"(i) for a first offence, with imprisonment for a
term which may extend to six months and with
fine which may extend to one thousand rupees : "
·Intoxicant' is defined ins. 2(22) as meaning "any
liquor, intoxicating drug, opium or any other sub•t-
~nce, which the State Government may, by notifica-
•
tion in the Official Gazette, declare to be an intoxicant;
and bys. 2(24) liquor includes "(a} spirits, denatured
spirits, wine, beer, toddy and all liquids consisting of
or eontaiPing alcohol ; and (b) any other intoxicating
substance which the State Government may, by notification in the Official Gazette, declare to be liquor for
the purposes of this Act." The contravention referred
to ins. G6(b) is the contravention of acts prescribed by
~
s. 13. That section prohibits, amongst other acts,
1 S.C.R.
SUPREME COURT REPORTS
933
consumption and use of liquor. The provisions of
s. 13 which occur in Chap. Ill are subject to a general
exception contained in s. 11, which provides, in so far
as it is material, that. :
''Notwithstanding anything contained in the
following provisions of this Chapter, it shall be
lawful to
import, export, transport, manufacture, bottle, sell, buy, possess, use or consume any intoxicant. .... .in the manner and
to the extent provided by the provisions of this
Act or any rules, regulations or orders made or
in accordance with the terms and conditions of
a licence, permit, pass or authorization granted
thereunder."
The validity of the provisions of the Act as originally
enacted was considered by the Court in 7'hc State of
Bombay v. F. N. Balsara ('), and it was held i:nter
alia that cl. (b) of s. 13, in so far as it affected the
consumption or use of medicinal and toilet prepara ·
tions containing alcohol was invalid. The Legislature of the Bombay State thereafter amended the Act
by enacting s. 24A which provided a general excep·
tion in rcipect of toilet, me<licinal and antiseptic
preparat.ffim and flavouring extract, essence or syrup.
As .a consequence of the amendment made by
s. 24A the operation of the prohibition contained in
s. 13 and the other sections was limite<l in two respects: (1) by s. 11 where the contravention was in
pursuance of and in the manner and to the extent
provided by the provisions of the Act or any ru Jes or
regulations or orders made or in accordance 11ith the
terms and conditions of a licrnce, permit, pass or
authorisation granted; and (:Z) in respect of prepara.
tions and materials exempted under s. 24A.
When,
therefore, a person was charged with consuming any
intoxicant in contravention of the provisions of thr.
,\ct or of the rules, regulations or orders mark nr of
(I) pi51) S.C.R. 682,
1963
Pan.Cit Ukh• Kolh1
y,
Tht Slate of
MdluJ11uhtt1J
: kali, J.
1963
••
Till ,,.,, If
AldataJIUro
S!i.h, J,
934 SUPREME COURT REPORTS [196~] VOL.
any licence, pass, permit or authorisation under
s. 66(l)(b), it had to be established that the contravention was not protected either by s. ll ors. 24A .
It is clear that direct evidence about the consumption of liquor in contravention of the provisions of
the Act, when such consumption
is
prohibited.
would not
ordinarily
be
forthcoming.
Mere
evidence that the person charged with consuming or using an intoxicant was in a state of intoxication would not be sufficient to bring home the charge
under s. 66(l)(b). That is illusrrated by the decision
of this Court in Brhr::mi Khurshfd Pesilcaka v. Thie
State of Bombay (1). It was held in that case that
the effect of the declaration in The State of Bombuy
v. P. N. Bal8ara ('), that cl. (b) of s. 13 of the
Bombay Prohibition Act is void under Art. 13(1)
of the Constitution in so far as it effects the consumption .or use of liquid medicinal or toilet preparations
containing alcohol is to render a part of s. l 3(b) of
the Bombay Prohibition Act inoperative and ineffectual and thus unenforceable, and that the bare
circumstance that a citizen accused of an offence
under s. 66(b) of the Bombay Prohibition Act is
smelling of alcohol is compatible with his innocence
as well as his guilt: the smell of alcohol may be due
to the fact that the accused had contravened the
enforci:able part of s. 13(b) of the Bombay Prohibition Act, or it may well be due to the fact that he
had taken alcohol which fell under the unenforceable
and inoperative part of the section. The onus therefore lies on the prosecution to prove that the alcohol
of which he was found smelling came under the
category of prohibited alcohol and therefore within
the enforceable part of s. 13(b).
The Legislature of the State of Bombay being
faced with this interpretation imposing a serious
burden which the prosecution had to undertake in
trials for offences of consumption or use of liquor
contrary to
the provisions of the Act, for due
(I) [1955) I S,C,R, 613,
(2) 11951] 8,C.R• 68l.
' ....
•
•
.•
1 s.c.R.
SUPREME COURT REPORTS
935
enforcement of the law and to prevent evasion, enact·
ed certain additional provisions by Bombay Act 12 of
1959.
By that Act, s. 66 was renumbered s. 66(1)
and suh·::. (2) was added thereto in the following
form:
"Subject to the provmons of sub-section (3),
where in any trial of an offence under clause (b)
of sub-section (1) for the consumption of an
intoxicant, it is alleged that the accused person
consumed liquor, and it is provided that the
concentration of alcohol in the blood of the
accused person is not less than 0.05 per cent,
weight in volume then the burden of proving
that the liquor consumed was a medicinal or
toilet preparation, · or an antiseptic preparation
or solution, or a flavouring extract, essence or
syrup, containing alcohol, the consumption of
which is not in contravention of the Act or anv
rules, regulations or orders made thereunde;,
shall be upon the accused person and the Court
shall in the absence of such proof presume the
contrary."
By sub-s. (3) the provisions of sub-s. (2) are not to
apply to consumption of liquor by indoor patients
during the period they are being treated in any
hospital, convalescent home, nursing home, or dispensary, maintained or supported by Government or
a local
authority, or by charity, or by such
,.
other persons
in
such
otl)er institutions, or
in such circumstances
as
may
be prescribed.
The
result of this
amendment was to make,
except in the cases expressly provided in cl. (3),
concentration of alcohol in excess of 0.05 per cent,
weight in volume in blood presumptive evidence of
consumption of liquor in contravention of the provisions of the Act and the burden of proving that the
liquor consumed was a medicinal or toilet prepa.ration
Qr all
aQtiseptic
preparation or solution, or a
1969
P11ndit Ukha Eolh1'
v.
The State nf
Maharashtra
Shah, J.
1963
l'e,ir UlrJut
Kol.~1
v.
Tiu Sta111/
M.Jutrulttr•
Skd, J.
936 SUPREME COURT REPORTS [1964) VOL.
flavouring extract, essence or syrup, lay upon the
person charged with the offence.
The case of the prosecution in this case rested
primarily upon the report of the Chemical Exami·
ner certifying that alcohol concentration in the blood
of the appellant which was extracted at 6 a. m. on
April 3, HJ6f, was in excess of the percentage
prescribed by s. 66 ( 2).
The prosecution had, there·
fore, to establish that the specimen examined by the
Chemical Examiner was the specimen of blood
collected from the body of the appellant and that
the specimen disclosed concentration of alcohol in
excess of the permissible limits.
It is somewhat unfortunate that the trial Magistrate did not appreciate
that the only important piece of evidence on which
the prosecution case against the appellant rested was
contained in the report of the Chemical Examiner.
There is no dispute that the appellant went to the
Civil Hospital early in the morning of April 3, 1961.
He has admitted that fact in his statement before the
Court. Dr. Kulkarni has deposed that on being told
about the death of Mohamad Yusuf the appellant
fainted and was admitted to the Hospital, and that
he found that th.e appellant was smelling of alcohol.
Dr. Kulkarni has stated that no treatment was given
to the appellant and there is no suggestion by the
appellant that he was given any treatment in the
Hospital. Dr. Rote was asked by Dr. Kulkarni to
collect a specimen of blood from the body of the
appellant, and a l'>lood specimen was accordingly
taken and the phial was sealed in his presence by
a
laboratory servant.
Dr. Rote stated in erosscxamination that no methyl spirit was applied before
extracting blood.
The certificate of Dr. Rote dated
April 13, Hlfil, that he had collected blood from the
body of the appellant on the morning of April 3,
I 961, and that the bottle containing the blood was
sealed in his presence corroborate~ the statement.
-1
.,
1 S.C.R.
SUPREME COURT REPORTS
937
But there is no evidence on the record about the
person in whose custody this phial remained till it
~ was handed over to the Sub-Inspector of police on
April 13, 1961, when demanded.
There is also no
evidence about the precautions taken to ensure
against tampering
with the contents of the phial
when it was in the Civil Hospital and later in the
custody of the police between April 13, 1961, and
April 18, 1961.
Even the special messenger with
whom the phial was sent to the Chemical Examiner
was not examined : and Ext. 43 which was the acknowledgment signed by some person purporting to
,,
belong to the establishment of the Chemical Examiner does not bear the official designation of that
person.
The report of the Chemical Examiner
mentions that a sealed phial was received from the
police officer by letter No. C/010 of 1961 dated
April 18, l\Hll, but there is no evidence that the
seal was the one which was affixed by Dr. Rote on
the phial.
These undoubtedly were defects in the
prosecution evidence which appear to have occurred
..,
on account of insufficient
appreciation of
the
character of the burden which the
prosecution
undertakes in proving a case of an offence under
s. 66 ( 1) (b) relying upon the
presumption under
s. 66 (2).
It was assumed by the Trial Magistrate that
the phial containing blood collected by Dr. Rote
was kept in a safe place and could not be tampered
with, that it was kept in such a place that it was not
liable to deteriorate, that thereafter this phial also
remained with the police at a place where it could
not be tampered with, and that the phial sealed by
Dr. Rote was delivered by the special messenger to
the establishment of the Chemical Examiner and that
the same phial was examined by the Chemical
Examiner, and that between April :I, 1961, and
April 19, 1961, when the contents of the phial were
Jubjected to chemical examination, they had not
1963
PanJii Ukha X'•lht
T,
The 'State ef
MJunashlra
Shah, .1.
1963
Parttiit l·°khtt Kollu
v.
Tkl.\1411 of
Afaluff4Sh"a
Shah. J.
938 SUPREME COURT REPORTS [1964] VOL.
deteriorated.
Both the Prosecutor and counsel for
the appellant appear to have contributed to the somewhat slipshod trial of the case.
Dr. Kulkarni and
J?r. Rote were examined as witnesses for the prosecu4
hon, but no examination or cross-examination of
either
YI as directed
in respect of these important
matters,
and even to the investigating officer, no
questions seeking to elicit
information on these
matters '~ere asked.
The report of the chemical
examination of
the blood
specimen
collected
at 11 a. m. on April 3, 1961, wa1 also not tendered
in evid~nce b1· the prosecution th')ugh the same was
demanded.
~
The Sessions Judge pointed out some of these
infirmities.
He arrived
at the conclusion that as
the examination of the
blood
specimen
taken
at 6 a. m. on April 3, 1961, was not obtained in the
course of investigation at the direction of the invt>stigating officer,
who had
reasonable
grounds for
believing that th~ appellant had consumed an intoxicant, the "presumption under s. 12fllr' could not
come to the aid of the prosecution. The learned Judge
observed--and
it was conceded at the Bar before
him-that the prosecution could still establish that the
appellant had consumed liqucr otherwise th'an by a
certificate obtained in respect of examination of the
blood concentration procured in the manner provided
under els. (1) and (2) of s. l:!!lA, but as the trial
Magistrate had relied merely upon the presumption
under s. 66 (2) and had n H analy>ed the evidence
in that light, nor had he dir,·ctcd his attention to the
question
whether the other evidence on the record,
apart from the prem1nption, <'.>tablished such case,
the order of the conv:nion could not be smtained.
Observing that there had not been a "fair and full
trial" in respect of the offence under the Bombay
Prohibition Act, the Sessions Judge set aside the order
of the trial Magistrate and directed that the case
be sent back to the M<tgi;trate and be retried in the
1 S.C.R.
SUPREME COURT REPORTS
939
light of the observations made by him in the course
of the judgment.
An order for retrial of a criminal case is made
in exceptional cases, and not unless the appellate
Court is satisfied that the Court trying the procee·
ding had no jurisdiction to try it or that the trial
was vitiated by serious illegalities or irregularities -or
on account of misconception of the nature of the
proceedings and on that account in substance there
had been no real trial or that the Prosecutor or an
accused was, for reasons over which he had no con·
trol, prevented from leading or tendering evidence
material to the charge, and in the interests of justice
the appellate Court deems it appropriate, having
regard to the circumstances of the case, that the
accused should be put on his trial again.
An order
of re-trial wipes out from the record the
earlier
proceeding, and
exposes the person accused_ to
another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier
trial, and will not ordinarily be countenanced when
it is made merely to enable the prosecutor to lead
evidence which he could but has not cared to lead
either on account of insufficient appreciation of the
nature of the case or for other reasons.
Harries,
C. J., in Raman/,al Rathi v. The State (1), observed :
"If at the end of a criminal prosecution the
evidence leaves the Court in doubt as to the
guilt of the accused the latter is entitled to a
verdict of not guilty. A retrial may be ordered
when the original trial has not been satis·
factory for particular reasons, for example, if
evidence had been wrongly rejected which
should have been admitted, or admitted when
it should have been rejected, or the Court had
refused
to
hear certain witness who should
have been heard. But retrial cannot be ordered
on the ground that the prosecution did not
(I) A l.R. (1951) Col. go;.
1963
Pandit Ukl:a KO/he
v.
The St•le of
Mah6rashtra
~hah, J.
! I
\
' '
·.-- ,~··11~.,---:· -":
"
- -
'·, '\..--1"
:
'
~. '.
'~- ~
•
/
I
:;
1 • !l40 ' SUPREME COURT REPORTS [l!l64] VOL. ·
PC!ltfit TJkh,Z Kol~
v.
Th• S1at1 of
~faha.raJhtra
Shah, J.
• produce the proper evidence-and aid' not know
how to prove thefr case."
In the present case, undriubtedly. the trial before the
~Iagistrate suffered from irregularities which we have ·
already set out. The evidence, such as was led, was
deficient in 'important respects; but that could not
be a· sufficient ground for directing a retrial: ·If the
Sessions Judge thought that in the interests of justice ·
. and for a just and proper decision of the case· it was ·
necessary that additional evidence should'. be brought
on the record he' should have, instead of directing a ..
retrial and reopening the' entire proceeding; resorted to '
the procedure prescribed by s; ·42s (i) of the Code ·of
Criminal Procedure; There is no dotibt that ·if the •
,ends of justice require; th'e appellate Court should
exercise its power under the said section.' "· ·
·
'
.
.
.
. . .
The observations made by the Sessions. Judge
do dearly suggest that in this case he ,\vas of the view ··
that·. "additional evidence· 'ivas necessary".
The .
examination of bJth Dr. R'lte and Dr. Kulk:irni was
perfunctory. · \Vhat steps \Vere taken by Dr: Rote<
after he collected the blood spei:imen and sealed the ·
phial, to whom he entrusted the phial, where it was
. stored and what steps. were taken for preventing ·
interference, · deterioration or 'tampering ·with the :
same,· are matters which were never. investigated.
·Neither the prosecutor nor· counsel for the defence
asked any question in that behalf, and even· the trial
1-fagistrate did not take any. steps to obtain information·· in that ·behalf. · . The 'method of storage of
the phial when it was in' the custody of the ·police
officers and its dealing therewith when .it was in the
custody. of· the special messenger have been left in
obscurity.
But the evidence dues disclose that the
phial was sealed in the pre5ence of Dr. Rote, and the
report of the Chemical Examiner, also· disclosed that
he had opened a phial which was sealed and that the
seal was intact, with the . device· ''Medico- Leg-al
•
1 S.C.k.
SU:PREME COURT REPORTS
941
Bombay'_'. Evidence regarding the dealing with the
phial since it was sealed and it was submitted for
examinatiun of the Chemical Examiner may appear
to be formal; but it has still to be led in a criminal
case to discharge the burden which lap upon the
prosecution.
Such evidence would appear to be
"necessary" within the meaning of s. 428 (1) of the
Code of Criminal Procedure, and may, having regard
to the circumstances, be permitted to be led in appeal.
The attention of the Magistrate docs not appear to
have been directed to the question whether the time
which elapsed betwi;en the collection of blood and
its examination had any material bearing on the
result of the examination. The Court would norri1ally require some evidence that the concentration
of alcohol is not due to deterioration or delay in the
examination of the contents of the phial or to exposure
to weather conrlitiol'ls, before raising the
presumption under s. t)() (2).
An opportunity to
lead this evidence may be given under s. 428, not
with a view to fill up lacunae in the evidence but to
regularise the trial of the accukd and to ensure that
the case is established against him beyond reasonable
doubt, more so when for the purpose of convicting
the accused reliance is, sought to he placed upon a
presumption arising from the report of a Chemical
Examiner, who is not examined before the Court, and
which substantially raises a presumption of guilt.
In this connection, the circumstance that the regularity of the process for extraction Qf blood and the
subsequent dealing of the blood phial was not
challenged by the appellant in the trial court is
material.
But counsel for the appellant contends that
the report of the Chemical Examiner on which alone
substantially the case of the prosecution rests is in·
admissible in evidence.
He submits that in 01der
•
to raise a presumption under s. 66l 2) of the Act, i:n
a trial of a -person chargc;i:! ~with committing au
1963
Pandit Ukli• Eolh1
v.
Th6 StaJ1 of
M.luullSlllr•
51!.h, J.
196S
f'tll'ldit Uklio Ko/Ju
v.
1 !w Stalt of
/\faha10}'1fra
~Iv;~. ;.
·•.
942
SUPREME COURT REl'<!>RTS [1964] VOL.
offence under s. 66 ( 1) (b), it must be proved that
concentration of alcohol in the blood of the accused
person is not Jess than 0.0ii per Cfllt
weight in
volume, and that can only be proved by the report
of the Chemical Examiner or the f\Icdical Officer
in the manner provided by s. 12913
in respect of
examination of blood collected in the circumstances
and under
conditions prescribed by s. 129 A.
Counsel says that the Legislature having enacted
a special provision
relating to the
procedure by
which evidence about concentration of alcohol in
blood is to be collected, examined and placrd before
the Court, no other method of establishing con·
centration of alcoholic content
in the blood of a
person charged with an offence under s. u6 (1) (b)
is permissible, and that even though a concession
was made before the Court of Session by counsel
appearing for the appellant, evidence rili11nde the
report under s. I :!9B was inadmissible. Starting on
this hypothesis, counsel submits that the report of
the Chemical Examiner in respect of blood collected
not in the manner and in the conditions set out in
s. 1 W A, els. (I) and (2), cannot be used as evidence
for raising a presumption against the appellant, and
beyond the bare circumstance that Dr. Kulkarni
noticed that the appellant was "smelling of liquor"
at {j a. m. on April 3, 1961, there is no evidence on
which the appellant could be convicted.
It is necessary in considering the validity of
this argument to examine the scheme of ss. 66 (2),
l29A and 129 B, which were added by Act. 12 of
l!J59.
In a trial of an accused person for an offence
of consuming liquor under s. 66 (1) (b) of the Act,
s. 66(2) makes proof of concentration of alcohol in
the blood of the accused in excess of the prescribed
quantity presumptive evidence that he has consumed,
•
i11 contravention of the provisions of the Act or the
~
rules, regulations or orders made thereunder, liquor
l S.C.R.
SUPREME COURT REPcm.TS
9'43
which is not excepted from the prohibitions in Ch.
III, and the burden lies upon the accused to prove
that liquor consumed by him was a medicinal, toilet
or antiseptic preparation or a solution or flavouring
extract, essence or syrup containinll' alcohol. Subsection (2) of s. 66 provides for raising a presump·
tion upon proof of concentration of alcohol in blood: it
docs not prescribe the manner or method of proving
concentration of alcohol in blood of the person
charged with the offence under s. 66 (1) (b) exceeding the percentage mentioned in sub-$. (2).
The material part of s. 129A is:
"(l) Where in the investigation of any
offence
under this Act,
any
Prohibition
Officer duly empowered in this behalf by the
State Government or any Police Officer, has
reasonable ground for believing that a person
has consumed an intoxicant and that for the
purpose of establishing that he has consumed
an intoxicant or for the procuring of evidence
thereof it is necessary that his body be medi·
cally examined, or that his blood be collected
for
being
tested
for determining
the
percentage
of
alcohol
therein,
such
Prohibition Officer or Police
Officer may
produce
such person before a registered
medical practitioner (authorised by
general
or special order by the State Government in
this behalf) for the purpose of such medical
examination or colllection of blood, and
request such registered medical practitioner or
furnish a certificate on his finding whether
rnch 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.
1963
p.,1;1 Vkha Ir.th•
v.
Tit. Statr of
M•harnrhlt•
Shah, J.
1963
l'•ii1 U IW Ko/M
••
1-,,. SI••• of
MM.tultlr•
<halt, J.
944 summ COURT RnPORTS [1964] VOL.
( 2)
The registered medical pr;,ictitioner
before whom such person has been produced
shall examine such
person and collect a11cl
•
lUrwar<l in the manner ·prescribed the blood
of such person, and furnish to the officer by
whom such person has
been produced, a
certificate in the prescribed form containi11g
the result of his examination. The Chemical
Examiner or Assistauc Chemical Examiner tu
Government, or other Ollicer appointed under
sub-section (l) shall certify the result of the
test of the blood forwarded to him, slating
therein, in the prcscribe<l form, the 1ierccntagc
of alcohol, and such uther particulars as may
be necessary or relevant.
(:l) If any person offers resistance tu his
production
before
a
registered
medical
practitioner under sub-section (l) or 011 his
production
before
such practitioner to the
examination of his body or to the collection of
his blood, it shall be lawful co use 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.
(4)
x
x
x
x
"(5) Resistance
to production before a
registered medical practitioner as aforesaid, or to
the examination of the body under this section,
or to the collection of blood as aforesaid, shall
be deemed to be an offence under section 186
of the Indian Penal Gode.
(6)
x
x
x
( 7)
x
x
x
(8) Nothing in this section shall preclude
the fact that the person accused of an offence
•
f
•.
..
1 S.C.R.
SUPREME COURT REPORTS
945
has consumed an intoxicant from being proved
otherwise than in accordance with the provi·
sions of this section."
The section is intended primarily to provide tor.
compelling a person reasonably believed by an
Officer investigating an offence under the Act or by a
Prohibition Officer duly empowered, to have con·
sumed liquor, to submit himself to medical exami·
nation, and collection of blood. Before a person can
be compelled to submit himself to examination, two
conditions have to be fulfilled.
It must be in the
course of investigation of an offence under the Act;
·and that a Prohibition Officer duly empowered in
that behalf by the State Government, or Police
Officer has reasonable ground for bdieving that a
person has consumed liquor, and that for the purpose
of establishing that such a person has consumed an
intoxicant, or for procuring evidence thereof, it is
necessary that his body be medically examined or his
blood be collected. It is only when these condi'.!ons
exist that a person can be sent or produced before a
registered medical practitioner for purposes
of
medical examination or collection of blood. By
sub-s. ( 5), resistal'!ce to production before a registered
medical practitioner or to the examination of his
body or collection of blood is made unlawful. By
sub-s. (2), the registered medical practitioner is
obliged to examine the person produced before him
and to collect and forward in the manner prescribed
the blood of such person and to furnish to the
Officer a certificate in the prescribed form containing
the result of his examination. But sub·s. (8) expressly
provides that proof of the fact that a person has
consumed an intoxicant may be secured in a manner
otherwise than as provided in s. 129 A.