Vishwasrao Madhavrao Patil vs State of Gujrat

A.J. Desai

The applicant-original accused by way of filing the present Revision Application u/s 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) has challenged judgment and order dated 20.10.2006 passed by the learned 8th Additional Senior Civil Judge and Judicial Magistrate, First Class, Bharuch, in Criminal Case No. 14057 of 1998, by which the accused has been convicted for the offences punishable under Sections 66(1)(B) of the Bombay Prohibition Act and has been sentenced for three months and also imposed a fine of Rs. 500/- and in default, to undergo simple imprisonment of one month as well as the judgment and order dated 16.5.2007, passed by the learned Additional Sessions Judge, Bharuch, in Criminal Appeal No. 83 of 2006, by which the aforesaid criminal appeal filed by the present applicant-accused challenging the decision of the Trial Court, is dismissed. Hence, the present Revision Application. Brief facts arising from the case are as under:

That the applicant was charge sheeted for the offences punishable u/s 66(1)(b) as well as u/s 85(1)(3) of the Bombay Prohibition Act pursuant to having found that the applicant had consumed some liquor. Samples were taken as per the Bombay Prohibition (Medical Examination And Blood Test) Rules, 1959. The prosecution had examined witnesses including Doctor who had collected the blood samples of the accused. After the trial, the Trial Court found that the applicant-accused having committed offences for which he was tried and convicted him for the same and sentenced as aforesaid. The lower appellate court also dismissed the appeal and confirmed the findings of the Trial Court. Hence the present Revision Application.

Mr. Kashyap R. Joshi, learned Advocate, for the applicant has mainly argued that it is amply clear from the evidence that the mandatory provisions of Rule-4(2) of the said Rules are not followed in the present case. Learned Advocate for the applicant has drawn the attention of the Court to the judgment of the Trial Court as well as the depositions of the witness Dr. Jyotiben Gupta and has submitted that it is not clear that on what date the samples were sent to the Forensic Science Laboratory and even the certificate issued by the FSL with regard to the analysis of the samples is undated and, therefore, the applicant is entitled for benefit of doubt. In support of his submission, he has relied upon a decision of this Court in the case of State of Gujarat vs. Bapuji Savaji, as reported in 1990(2) GLH 451 and submitted that it has been held by this Court that Rule 4(1) and Rule 4(2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 which are mandatory in nature and, if, any lapse in following the said procedure, the entire prosecution case is vitiated.

On the other hand, leaned APP Mr. K.P. Raval, appearing for the respondent-State has supported the decisions of the Trial Court as well as the appellate court.

I have gone through the judgment of the Trial Court as well as the Appellate Court. While convicting the applicant, the Trial Court has specifically mentioned that the Form-''C'' (Exhibit-16) is undated and is not clear on what date the samples were sent to the FSL for analysis. Even witness Dr. Jyotiben Gupta, in her deposition, stated that she is not aware that on what date the samples were sent to the Forensic Science Laboratory.

Rule 4(2) of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959 is relevant for deciding the present case, the same is reproduced below:

Manner of collection and forwarding of blood

(1)...

(2) The sample blood collected in the phial in the manner stated in sub-rule (1) shall be forwarded for test to the Testing Officer either by post or with a special messenger so as to reach him within seven days from the date of its collection. It shall be accompanied by a forwarding letter in Form "B" which shall bear a facsimile of the seal or monogram used for sealing the phial of the sample blood.

Considering the above mandatory provisions of the said Rules, in the present case, it is not clear that, on what date the samples were sent to FSL for analysis and on what date the analysis of the said samples were carried out by the Scientist. Under the circumstances, provisions of Rule 4(1) & (2) of the said Rules which are mandatory, are violated and, therefore, the applicant is entitled for benefit of doubt.

In the result, the present Revision Application is allowed. The impugned judgment and order dated 20.10.2006 passed by the learned 8th Additional Senior Civil Judge and Judicial Magistrate, First Class, Bharuch, in Criminal Case No 14057 of 1998 as well as the judgment and order dated 16.5.2007, passed by the learned Additional Sessions Judge, Bharuch, in Criminal Appeal No. 83 of 2006, are hereby quashed and set aside and the applicant is acquitted from all the charges levelled against him. Rule is made absolute. The applicant is on bail pursuant to the Order dated 15.6.2007 passed by this Court in Criminal Misc. Application No. 6371 of 2007 and, hence, bail bond shall stand cancelled. Direct Service is permitted.