Pandit Ukha Kolhe vs The State Of Maharashtra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 131 of 1962

Decision Date: 11 February, 1963

Coram: J.C. Shah, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In this matter, the petition was brought by Pandit Ukha Kolhe against the State of Maharashtra and was decided by the Supreme Court of India on the eleventh of February, 1963. The judgment was authored by Justice J. C. Shah and the bench comprised Justices J. C. Shah, Bhuvneshwar P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo and K. C. Das Gupta. The case is reported in the 1963 volume of the All India Reporter at page 1531 and also appears in the 1964 Supplement to the Supreme Court Reports at page 926, together with several later citations. The factual controversy arose from an alleged offence under the Bombay Prohibition Act of 1949, specifically the sections dealing with the measurement of alcohol in a person’s blood. The appellant had suffered injuries in a motor‑vehicle accident and was taken to a hospital at six o’clock in the morning on April 3 1961. Because he was observed to smell of alcohol, a sample of his blood was drawn and placed in a sealed phial. When the formal investigation commenced, the investigating officer retrieved the same phial on April 13 and forwarded it to a chemical examiner on April 18. The examiner’s laboratory analysis indicated that the alcohol concentration in the blood exceeded the limit prescribed by section 66(2) of the Bombay Prohibition Act. The trial court, relying on the presumption derived from the examiner’s report, convicted the appellant of the statutory offence.

Upon review, the Sessions judge observed that the prosecution had not produced any evidence showing how the blood sample had been preserved securely between April 3 and April 18, nor had it demonstrated that the container had been stored in conditions that prevented deterioration, nor how the sample was delivered to the chemical examiner. Consequently, the Sessions judge ordered a retrial, an order that was subsequently affirmed by the High Court. The appellant raised two principal contentions: first, that the chemical examiner’s report should not have been admitted as evidence because the blood had not been collected in accordance with the procedure laid down in section 129A of the Bombay Prohibition Act; and second, that the directive for a fresh trial was unlawful. The Supreme Court, delivering the opinion of Justices Sinha, Gajendragadkar, Wanchoo, Shah and Das Gupta, held that the examiner’s report was admissible. The Court explained that section 129A was primarily intended to empower a prohibition officer or a police officer to compel a person to undergo medical examination and to have blood drawn, but only when an investigation into a prohibited offence was already under way and there were reasonable grounds to believe that the person had consumed liquor. The Court further observed that even if blood is drawn in a manner not prescribed by section 129A, the results can still be proved under subsection (8) of that provision, and that no limitation exists in section 129A that would bar the admission of such evidence.

The Court explained that section 129B barred the use of any proof that might indicate that a person had consumed illegal liquor. By enacting sections 129A and 129B, the legislature introduced a specific method for gathering evidence in cases punishable under section 66(2) of the Bombay Prohibition Act, but it did not intend to prohibit the use of other methods of proof. The Bombay Act No 12 of 1959, which created sections 129A and 129B, had been sent to the President for consideration, received his assent, and therefore took precedence over section 510 of the Code of Criminal Procedure in the State of Bombay to the extent that the two provisions conflicted. Consequently, a report prepared by a Chemical Examiner on blood that had been drawn during an investigation of an offence under the Act, but not in the manner prescribed by section 129A, could not be admitted as evidence. However, a report on blood taken at a time when no investigation was underway, or taken at the direction of a Police Officer or a Prohibition Officer, was permissible under section 510 of the Code. The Court referred to the authorities Nazir Ahmad v. The King Emperor (1936) L.R. 63 I.A. 372; Taylor v. Taylor (1875) 1 Ch. D. 426; Deep Chand v. State of Uttar Pradesh [1959] Supp. 2 S.C.R. 8; and Ch. Tikaramji v. State of Uttar Pradesh [1956] S.C.R. 393 to support this interpretation.

The Court further held that the order directing a fresh trial was erroneous and that the Sessions Judge should have taken additional evidence concerning the safe custody of the blood phial himself. An order for a retrial in a criminal matter was described as an extraordinary measure, appropriate only when the accused would face another trial that allowed the prosecution to correct serious defects identified in the earlier proceeding. Such an order could be issued only if the appellate court was convinced that the trial court lacked jurisdiction, that the original trial had been compromised by serious illegalities or irregularities, that a fundamental misunderstanding of the nature of the proceedings meant that no genuine trial had occurred, or that a party had been prevented, through no fault of its own, from presenting material evidence. Because the Sessions Judge had expressed the view that “additional evidence was necessary,” the Court concluded that he should have proceeded under section 428(1) of the Code of Criminal Procedure, citing Ramanlal Rathi v. State, A.I.R. (1931) Cal. 305. The Court, speaking through Das Gupta, J., reiterated that a Chemical Examiner’s report based on blood taken in violation of section 129A was inadmissible. While subsection (8) of section 129A allowed the fact of intoxication to be proved by other evidence, the determination of the exact percentage of alcohol in the blood could be made only by the procedure prescribed in section 129A. The Court noted that section 66(2), which created a presumption in favour of the prosecution when the measured alcohol concentration exceeded the limit laid down in the provision, was introduced by the same amendment that created sections 129A and 129B, and therefore the presumption was intended to apply only where the procedure of section 129A had been properly followed.

The Court observed that the provision allowing a presumption against the prosecution when the alcohol concentration found in an accused’s blood exceeds the limit stated in the statute was inserted into the legislation by the same amendment that introduced section 129A; consequently, it was reasonable to conclude that the legislature intended the presumption under section 66(2) to apply only where the procedure prescribed by section 129A had been properly followed, and this interpretation was supported by the authority cited in Nazir Ahmad v. The King Emperor, (1936) L. R. 63 I. A. 372.

In the present appeal, the matter arose from Criminal Appeal No. 131 of 1962, which came before the Supreme Court by special leave from a judgment and order dated 13 June 1962 delivered by the Bombay High Court in Criminal Revision Application No. 402 of 1962. Counsel for the appellant were three lawyers, while the respondent was represented by the Solicitor‑General of India and two additional counsel. The appeal was heard on 11 February 1963, and the judgments were delivered by Justice Shah.

The factual backdrop involved an accident that occurred on 3 April 1961 at approximately 02:30 hours when a motor vehicle, identified as Temp. No. 170 B. M. B., fell into a ditch beside a highway near Edlabad in the District of Jalgaon. All occupants of the vehicle sustained injuries, and one passenger named Mohmad Yusuf succumbed to those injuries. The appellant was subsequently tried before the Judicial Magistrate First Class at Bhusawal on charges of rash and negligent driving while under the influence of liquor, alleged to have caused the death of Mohmad Yusuf and injuries to four other occupants, together with additional offences under the Motor Vehicles Act.

The Trial Magistrate held that the prosecution had failed to establish that the appellant was actually driving the vehicle at the time of the mishap, and therefore acquitted the appellant of the offences under both the Motor Vehicles Act and the Indian Penal Code. However, the magistrate found that the evidence proved the appellant had consumed illicit liquor at the material time, thereby committing an offence punishable under section 66(b) of the Bombay Prohibition Act. Accordingly, the appellant was convicted, sentenced to three months of rigorous imprisonment, ordered to pay a fine of Rs. 500, and, in the event of default, to undergo an additional two months of rigorous imprisonment.

On appeal to the Court of Session, the conviction was set aside and a retrial was ordered on the ground that the original proceedings did not constitute a “fair and full” trial. A revision application challenging the Session Court’s order was filed in the Bombay High Court, but the High Court dismissed the revision summarily. The appellant then obtained special leave to appeal to this Court against the High Court’s dismissal. The prosecution’s case, as it pertains to the charge under the Bombay Prohibition Act, was briefly summarized as follows: early on the morning of 3 April 1961, the vehicle’s fall into the ditch near Edlabad resulted in injuries to several persons, including the appellant, and at about 06:00 hours the subsequent events leading to the charge were set in motion.

The appellant arrived at the Civil Hospital in Jalgaon early on the morning of 3 April 1961. While he was being attended, Dr Kulkarni, the Resident Medical Officer of the hospital, informed him that a man named Mohmad Yusuf had died. Upon hearing this news the appellant fainted; consequently the staff admitted him as an indoor patient. During the medical examination the appellant was noted to emit the odor of alcohol. Acting on this observation, Dr Kulkarni instructed Dr Rote to obtain a blood specimen from the appellant. Dr Rote therefore drew a sample of venous blood and placed it in a sealed phial, which was closed in Dr Rote’s presence and sealed accordingly. Before any therapeutic measures could be administered, the appellant was discharged from the hospital at the request of persons who were accompanying him, and the sealed blood specimen remained in the hospital’s custody. Later that same morning, around 8 a.m., the police received information about the motor‑vehicle accident that had occurred near Edlabad. A case was promptly registered against the appellant and four other individuals for offences under the Indian Penal Code and the Motor Vehicles Act. In addition, the police learned that all occupants of the vehicle were apparently intoxicated at the time of the mishap, which led them to invoke section 66(b) of the Bombay Prohibition Act, 1949, against the appellant. The investigating officer then directed the appellant to return to the Civil Hospital for a medical examination. Dr Kulkarni examined the appellant again and reported that his condition appeared normal. At approximately 11 a.m. a second blood specimen was taken from the appellant and forwarded to the chemical analyser for testing and reporting. On 12 April 1961 the Sub‑Inspector supervising the investigation discovered that the hospital authorities had already collected a blood specimen on the morning of 3 April 1961. Responding to the police officer’s request, the Medical Officer produced the original sealed phial together with a certificate signed by Dr Rote confirming that the sample had been drawn at 6 a.m. on 3 April 1961. The investigating officer then affixed an additional seal to the package and dispatched it by a special messenger to the Chemical Examiner on 18 April 1961. Analysis of the sealed phial revealed an ethyl‑alcohol concentration of 0.069 percent weight‑by‑volume, a level exceeding the limit prescribed in section 66(2) of the Bombay Prohibition Act. Accordingly, a complaint for the offence under that Act was lodged against the appellant. At trial, the prosecution called Dr Kulkarni, Dr Rote and the investigating officer as witnesses, and the report of the Chemical Examiner was admitted into evidence. However, the special messenger who had transported the sealed blood sample was not examined, and no evidence was offered regarding the storage location or condition of the phial while it remained in the hospital. The appellant, in his statement to the Court, denied that the alcohol concentration detected by the Chemical Examiner from the specimen taken by Dr Rote exceeded 0.069 percent w/v.

The Court recorded that the Chemical Examiner had found the concentration of alcohol in the blood specimen taken by Dr. Rote to exceed 0.069 per cent weight‑volume. The appellant acknowledged that on the morning of 3 April 1961 he was present in the Civil Hospital. He stated that when Dr. Kulkarni informed him of the death of Mohamad Yusuf, he “suffered a shock”. He further said that after receiving this news he left the hospital immediately and that his mental condition was poor at that time. The appellant described that he fell unconscious and was only semi‑conscious thereafter. He recounted that his relatives and friends gave him a certain liquid as a form of medicine, after which he was carried back to the hospital still in that condition. Upon regaining consciousness, he told the doctor that he wished to leave the hospital because his friend had died there and he did not feel it proper to remain under such circumstances, and therefore he departed. He added that after leaving the hospital he fell on the road and could not identify who administered the medicine to him at that moment. Consequently, the appellant’s defence was that the shock caused by the news of Mohamad Yusuf’s death led him to faint, and that friends gave him a medicinal preparation to revive him, after which he was taken again to the Civil Hospital. He did not admit that any blood sample had been collected from his body, but he asserted that if alcohol was found in his blood, it must have been due to the medicinal preparation given by his friends.

The appellant’s argument was considered against the provisions of Section 66(1) of the Bombay Prohibition Act, which, to the extent relevant, provides: “(1) Whoever in contravention of the provisions of this Act, or any rule, regulation, or order made, or of any licence, permit, pass or authorization issued thereunder‑ (a) … (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.” The term “intoxicant” is defined in Section 2(22) as “any liquor, intoxicating drug, opium or any other substance, which the State Government may, by notification in the Official Gazette, declare to be an intoxicant”; and Section 2(24) defines “liquor” to include “(a) spirits, denatured spirits, wine, beer, toddy and all liquids consisting of or containing 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 in clause (b) of Section 66 is the breach of the acts prescribed by Section 13, which prohibits, among other things, the consumption and use of liquor. However, the provisions of Section 13 that appear in Chapter III are subject to a general exception contained in Section 11, which, insofar as it is material, provides that certain uses of intoxicants may be lawful if they fall within the scope of the exception. The Court therefore examined whether the appellant’s consumption of the liquid given by his friends could be placed within that statutory exception.

In this case, the Court examined the provision that declared it lawful, notwithstanding any other rule in the Chapter, to import, export, transport, manufacture, bottle, sell, buy, possess, use or consume any intoxicant, provided that such activities were carried out in the manner and to the extent prescribed by the Act, by any rules, regulations or orders made thereunder, or in accordance with the terms and conditions of a licence, permit, pass or authorisation issued under the Act. The Court recalled that the validity of the Act as originally enacted had been considered in The State of Bombay v. F. N. Balsara (1), where it was held, among other things, that clause (b) of section 13, insofar as it affected the consumption or use of medicinal and toilet preparations containing alcohol, was invalid. After that decision, the Legislature of Bombay State amended the Act by inserting section 24A, which created a general exception for toilet, medicinal and antiseptic preparations as well as for flavouring extracts, essences or syrups. Consequently, the amendment by section 24A limited the operation of the prohibition contained in section 13 and the other sections in two respects: first, by section 11, where a contravention occurred in pursuance of, and in the manner and to the extent provided by, the provisions of the Act, any rules, regulations or orders made thereunder, or in accordance with the terms and conditions of a licence, permit, pass or authorisation; and second, by providing that preparations and materials exempted under section 24A were not subject to prohibition. When a person was therefore charged with consuming any intoxicant in contravention of the Act, or of the rules, regulations or orders made thereunder, or of any licence, pass, permit or authorisation under section 66(i)(b), the prosecution had to establish that the alleged contravention was not protected by either section 11 or section 24A. The Court observed that direct evidence of consumption of liquor in breach of the Act, where such consumption was prohibited, would not normally be available. Mere evidence that the accused was intoxicated was insufficient to sustain a charge under section 66(1)(b). This principle was illustrated by the decision of this Court in Behram Khurshed Pesikaka v. The State of Bombay (1). In that case, the Court held that the declaration in The State of Bombay v. F. N. Balsara (2), which found clause (b) of section 13 of the Bombay Prohibition Act void under Article 13(1) of the Constitution insofar as it pertained to the consumption or use of liquid medicinal or toilet preparations containing alcohol, rendered that part of section 13(b) inoperative, ineffective and unenforceable. The Court further observed that the mere fact that a citizen accused of an offence under section 66(b) of the Bombay Prohibition Act smelled of alcohol could be compatible with innocence, because such a smell might arise from consumption of alcohol that fell within the unenforceable portion of the section.

The Court noted that the presence of the odor of alcohol on the accused could be explained in two different ways. It might indicate that the accused had breached the portion of section 13(b) of the Bombay Prohibition Act that remained enforceable, or it might simply reflect that the accused had ingested a type of alcohol that fell within the portion of the section declared unenforceable and inoperative. Accordingly, the Court held that the burden of proof lay with the prosecution to demonstrate that the alcohol which caused the odor belonged to the category of prohibited alcohol and therefore fell within the enforceable part of section 13(b). The Court further explained that, faced with this interpretative difficulty and the heavy evidential burden placed on the prosecution in cases involving alleged consumption or use of liquor contrary to the Act, the Legislature of the State of Bombay introduced additional provisions by way of Bombay Act 12 of 1959. Under that Act, section 66 was renumbered as section 66(1) and a new sub‑section (2) was inserted, which read in full: “Subject to the provisions 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 any rules, regulations or orders made thereunder, shall be upon the accused person and the Court shall in the absence of such proof presume the contrary.” Sub‑section (3) was drafted to exclude from the operation of sub‑section (2) the consumption of liquor by indoor patients while they were being treated in a hospital, convalescent home, nursing home or dispensary maintained or supported by the Government, a local authority, charitable bodies or any other persons in such institutions, or in any other circumstances that might be prescribed. The effect of this amendment, the Court observed, was to make, except in the cases specifically saved by clause (3), a blood‑alcohol concentration exceeding 0.05 per cent, weight in volume, presumptive evidence of consumption of liquor in contravention of the Act, and to shift the burden of proving that the liquor consumed was a medicinal, toilet, antiseptic, or flavouring preparation onto the person charged with the offence. In the present case, the prosecution’s case rested principally on the report of the Chemical Examiner, which certified that the alcohol concentration in the blood of the appellant, drawn at six a.m. on 3 April 1961, was in excess of the percentage prescribed by section 66(2). The Court therefore examined the implications of this statutory scheme for the allocation of evidential burdens in the matter before it.

The prosecution was required to demonstrate two essential matters: first, that the blood sample examined by the Chemical Examiner was indeed the specimen taken from the appellant’s body; and second, that the analysis of that specimen revealed an alcohol concentration exceeding the limits permitted by law. The trial magistrate failed to recognise that the prosecution’s case hinged almost entirely on the Chemical Examiner’s report. There was no dispute that the appellant had visited the Civil Hospital early on the morning of 3 April 1961, a fact the appellant himself admitted in his statement before the Court. Dr Kulkarni testified that, upon being informed of Mohamad Yusuf’s death, the appellant fainted, was admitted to the hospital, and was noted to be smelling of alcohol. Dr Kulkarni further affirmed that no medical treatment was administered to the appellant and that the appellant made no claim of having received any treatment. According to Dr Kulkarni, Dr Rote was instructed to obtain a blood sample from the appellant; a specimen was consequently drawn, and a laboratory attendant sealed the vial in Dr Rote’s presence. During cross‑examination, Dr Rote confirmed that no methyl spirit was applied to the site before the blood was drawn. Dr Rote’s certificate dated 13 April 1961, which stated that he had collected the blood from the appellant on the morning of 3 April 1961 and that the bottle had been sealed before him, supported these facts.

Nevertheless, the record contained no evidence identifying the individual who retained custody of the sealed vial from the time it was collected until it was delivered to the Sub‑Inspector of Police on 13 April 1961, as required by the prosecution’s demand. Equally absent was any evidence concerning the safeguards employed to prevent tampering with the vial while it remained in the Civil Hospital and subsequently while it was in police custody between 13 April 1961 and 18 April 1961. The special messenger who conveyed the vial to the Chemical Examiner was not examined, and Exhibit 43, which purportedly acknowledged receipt by a person associated with the Chemical Examiner’s establishment, lacked an official designation for that individual. The Chemical Examiner’s report indicated that a sealed vial had been received from the police officer by way of Letter No C/010 of 1961 dated 18 April 1961, yet there was no proof that this vial was the same one sealed by Dr Rote. These omissions represented clear defects in the prosecution’s evidence, arising from an inadequate appreciation of the burden placed on the prosecution to prove an offence under s. 66(1)(b) while relying on the presumption created by s. 66(2). The trial magistrate had apparently assumed that the vial collected by Dr Rote had been securely stored, remained untampered, and was the same vial sent by the special messenger to the Chemical Examiner for analysis.

The Court observed that the trial magistrate had assumed the phial containing blood, which had been collected by Dr Rote, was kept in a secure location where it could not be tampered with and where it would not deteriorate. It was further assumed that the phial remained with the police in a place free from tampering, that the phial sealed by Dr Rote was delivered by a special messenger to the establishment of the Chemical Examiner, and that the same phial was examined by the Chemical Examiner. The Court noted that between 3 April 1961 and 19 April 1961, when the contents of the phial were subjected to chemical examination, the material had not deteriorated. Both the prosecutor and the counsel for the appellant were held to have contributed to the rather slipshod conduct of the trial. Although Dr Kulkarni and Dr Rote were called as witnesses for the prosecution, no examination or cross‑examination of either was directed on these critical points, and the investigating officer was not questioned on the same matters. Moreover, the report of the chemical examination of the blood specimen taken at 11 a.m. on 3 April 1961 was not placed in evidence by the prosecution, even though it had been demanded.

The Sessions judge highlighted these infirmities and concluded that, because the examination of the blood specimen taken at 6 a.m. on 3 April 1961 had not been obtained under the direction of the investigating officer who had reasonable grounds to believe that the appellant had consumed an intoxicant, the presumption under section 129B could not be invoked in favour of the prosecution. The learned judge recorded that the prosecution could still prove that the appellant had consumed liquor by means other than a certificate obtained under sections 129A(1) and (2), but the trial magistrate had relied solely on the presumption under section 66(2) without analysing the evidence in that context, nor had he considered whether other evidence on record, aside from the presumption, established the required case. Consequently, the conviction could not be sustained. Observing that the appellant had not received a fair and full trial with respect to the offence under the Bombay Prohibition Act, the Sessions judge set aside the trial magistrate’s order of conviction and directed that the matter be remitted to the magistrate for a fresh trial in accordance with the observations made in the judgment. The judge underscored that an order for retrial in a criminal matter is an exceptional remedy, permissible only when the appellate court is convinced that the original trial was vitiated by serious illegalities, irregularities, or a fundamental misunderstanding of the nature of the proceedings, thereby justifying a new trial in the interests of justice.

In the circumstance described, the appellate Court held that, essentially, there had been no genuine trial because either the prosecutor or the accused had been, through no fault of their own, prevented from presenting evidence material to the charge; consequently, in the interests of justice and after considering the particular facts of the case, the Court considered it appropriate to order that the accused be tried again. The Court explained that an order granting a re‑trial eradicates the earlier proceeding from the record and subjects the accused to a new trial, which gives the prosecutor a chance to correct the deficiencies identified in the previous trial. However, the Court emphasized that such an order would not normally be sanctioned if its sole purpose was to allow the prosecutor to introduce evidence that he could have presented earlier but chose not to, either because he failed to appreciate adequately the nature of the case or for other reasons. The Court then quoted the observations of Harries, C. J., in Ramanlal Rathi v. The State (1), noting that when, at the conclusion of a criminal prosecution, the evidence leaves the Court uncertain about the accused’s guilt, the accused is entitled to a verdict of not guilty. A re‑trial may be ordered only when the original trial was unsatisfactory for specific reasons, such as the wrongful rejection of evidence that should have been admitted, the wrongful admission of evidence that should have been excluded, or the refusal of the Court to hear a witness who ought to have been heard. The Court further clarified that a re‑trial could not be ordered merely because the prosecution failed to produce proper evidence or did not know how to prove its case, as recorded in A.I.R. (1951) Cal. 305. Turning to the case at bar, the Court observed that the trial before the Magistrate undeniably suffered from the irregularities previously described. Although the evidence that was led was lacking in important respects, the Court held that this deficiency alone did not justify directing a re‑trial. The Court stated that if the Sessions judge believed that, for the sake of justice and to reach a proper decision, additional evidence needed to be placed on record, he should have employed the procedure provided by section 428(i) of the Code of Criminal Procedure rather than ordering a full re‑trial and reopening the entire proceedings. The Court affirmed that, where the ends of justice demand it, the appellate Court is empowered to exercise its authority under the said section. The observations of the Sessions judge clearly indicated that he thought “additional evidence was necessary.” The Court further noted that the examinations of both Dr. Rote and Dr. Kulkarni were carried out in a perfunctory manner. The Court pointed out that crucial questions concerning what Dr. Rote did after collecting the blood specimen and sealing the phial—such as to whom he entrusted the sealed phial, where it was stored, and what measures were taken to prevent interference, deterioration or tampering—were never investigated. Moreover, neither the prosecutor nor the counsel for the defence raised any questions on this point, and the trial Magistrate likewise failed to take any steps to obtain information on these matters.

In this case, the Court observed that the trial magistrate had taken no steps to obtain information concerning the manner in which the blood specimen was handled after Dr. Rote collected and sealed it. The method of storage while the phial was in the custody of police officers, and later while it was in the possession of the special messenger, remained unclear. Nevertheless, the evidence showed that the phial had been sealed in the presence of Dr. Rote, and the report of the Chemical Examiner confirmed that he opened a phial that was sealed, that the seal was intact, and that the device used was “Medico‑Legal Bombay”. Although the evidence relating to the handling of the phial after it was sealed and submitted for examination of the Chemical Examiner might appear formal, the Court stressed that such evidence still needed to be led in a criminal trial in order to discharge the burden that rested on the prosecution. The Court held that this evidence qualified as “necessary” within the meaning of section 428(1) of the Code of Criminal Procedure and could, given the circumstances, be permitted to be led on appeal. The Court further noted that the magistrate had not been directed to consider whether the lapse of time between the collection of the blood and its examination might have materially affected the result of the examination. Normally, the Court would require some evidence that the concentration of alcohol was not the result of deterioration, delay, or exposure to weather before invoking the presumption under section 66(2). The Court therefore concluded that an opportunity to lead this evidence could be granted under section 428, not merely to fill gaps in the evidence but to regularise the trial of the accused and to ensure that the case was proved beyond reasonable doubt, especially when the prosecution’s case relied on a presumption arising from the report of a Chemical Examiner who had not been examined before the Court and whose report substantially raised a presumption of guilt. In this connection, the Court noted that the appellant had not challenged the regularity of the process of blood extraction and the subsequent handling of the blood phial at the trial stage, and that this fact was material. Counsel for the appellant argued that the report of the Chemical Examiner, on which the prosecution’s case largely depended, was inadmissible. He submitted that, in order to raise a presumption under section 66(2) of the Act in a trial for an offence under section 66(1)(b), it must be proved that the concentration of alcohol in the accused’s blood was not less than 0.05 per cent by weight in volume, and that such proof could only be furnished by a report of the Chemical Examiner or the Medical Officer in the manner prescribed by section 129B, which governs the examination of blood collected under the conditions set out in section 129A. Counsel therefore maintained that the Chemical Examiner’s report, prepared without following the statutory procedure, could not be used as evidence to raise a presumption against the appellant, and that, apart from the observation by Dr. Kulkarni that the appellant was “smelling of liquor at 6 a.m. on 3 April 1961,” there was no other evidence on which the appellant could be convicted.

The Legislature had enacted a special provision that prescribed the exact procedure for collecting, examining, and presenting evidence concerning the concentration of alcohol in blood. Accordingly, no alternative method was permissible for establishing the alcoholic content in the blood of a person charged under section 66(1)(b). Although the counsel for the appellant made a concession before the Court of Session, the court held that any evidence other than the report prepared under section 129B was inadmissible. Acting on that premise, the appellant’s counsel argued that a report prepared by the Chemical Examiner could not be relied upon when the blood had not been collected in the manner and under the conditions specified in sections 129A(1) and (2). Apart from the observation by Dr Kulkarni that the appellant was “smelling of liquor at 6 a.m. on April 3 1961,” the counsel submitted that there was no other evidence on which a conviction could be based. The court observed that to assess the validity of this argument it was necessary to examine the scheme of sections 66(2), 129A and 129B, which had been added by Act 12 of 1959.

Section 66(2) provides that, in a trial for an offence of consuming liquor under section 66(1)(b), proof that the concentration of alcohol in the accused’s blood exceeds the prescribed limit operates as presumptive evidence that the accused consumed liquor in violation of the Act or any rules, regulations, or orders made thereunder, and that the liquor is not exempted under Chapter III. The statutory burden then shifts to the accused to prove that the liquor consumed was a medicinal, toilet, or antiseptic preparation, or a solution, flavouring extract, essence, or syrup containing alcohol. While subsection 2 of section 66 creates the presumption, it does not dictate the manner or method by which the concentration of alcohol must be proved. The substantive portion of section 129A reads: “(1) 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 procuring evidence thereof, it is necessary that his body be medically examined, or that his blood be collected for testing 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 collection of blood, and request such registered medical practitioner or furnish a certificate on his finding whether

In the provision, it is stated that a person who is suspected of having consumed any intoxicant shall have his blood collected and that the blood be forwarded for testing to the Chemical Examiner or Assistant Chemical Examiner of the Government, or to any other officer that the State Government may appoint for that purpose. The provision continues that the registered medical practitioner before whom such person is produced shall examine the person, collect his blood and forward it in the manner prescribed, and shall also furnish to the officer who produced the person a certificate in the prescribed form containing the result of his examination. Further, the Chemical Examiner or Assistant Chemical Examiner of the Government, or any other officer appointed under sub‑section (1), shall certify the result of the test of the blood forwarded to him, stating in the prescribed form the percentage of alcohol and any other particulars that may be necessary or relevant. The provision also provides that if any person offers resistance to his production before a registered medical practitioner under sub‑section (1), or resists examination of his body or the collection of his blood after being produced before such practitioner, it shall be lawful to use all means reasonably necessary to secure the production of the person, or the examination of his body, or the collection of blood necessary for the test. Sub‑section (4) is recorded as “x x x x”. Sub‑section (5) declares that 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 Code. Sub‑sections (6) and (7) are recorded as “x x x”. Sub‑section (8) states that nothing in this section shall preclude the fact that a person accused of an offence having consumed an intoxicant may be proved otherwise than in accordance with the provisions of this section. The section is intended primarily to provide for compelling a person who is reasonably believed by an officer investigating an offence under the Act, or by a Prohibition Officer duly empowered, to have consumed liquor, to submit himself to medical examination and to the collection of blood. Before a person can be compelled to submit himself to examination, two conditions must be fulfilled. First, the compulsion must arise in the course of investigation of an offence under the Act. Second, a Prohibition Officer duly empowered by the State Government, or a Police Officer, must have reasonable ground for believing that the person has consumed liquor, and that for the purpose of establishing that fact or procuring evidence thereof, it is necessary that his body be medically examined or his blood be collected. Only when these conditions exist may the person be sent or produced before a registered medical practitioner for the purpose of medical examination or blood collection. By sub‑section (5), resistance to production before a registered medical practitioner or to the examination of the body or collection of blood is made unlawful. By sub‑section (2), the registered medical practitioner is obliged to

The provision required the registered medical practitioner to examine the person produced before him, to collect and forward the blood in the manner prescribed, and to furnish the officer with a certificate in the prescribed form that contained the result of his examination. However, sub‑section (8) expressly provided that proof of the fact that a person had consumed an intoxicant could be secured in a manner other than that prescribed in section 129 A. Consequently, the production of a person for examination before a registered medical practitioner during the course of an investigation by a competent officer who had reasonable grounds for believing that the person had consumed an intoxicant, and for whom such examination was necessary to establish that fact, was not the sole method by which consumption of an intoxicant could be proved. An investigating officer or a prohibition officer empowered by the State Government, if desirous of having a person examined or his blood taken in the course of an investigation for an offence under the Bombay Prohibition Act, was required to follow the steps prescribed in section 129‑A; the certificate of the registered medical practitioner and the report of the chemical examiner made on the result of the blood test, when forwarded to the officer, were made admissible as evidence in any proceeding under the Act by virtue of section 129‑B, without the need to examine either the registered medical practitioner or the chemical examiner. Nevertheless, if the examination of a person or the collection of blood from the body was carried out in a manner other than that set out in section 129‑A, the result of such examination or of the blood could, when relevant to a charge for an offence under the Act, be proved by virtue of clause (8), and there was nothing in sections 129‑A or 129‑B that precluded proof of that fact if it tended to establish that the person whose blood was taken or who was examined had consumed illicit liquor. The case of Nazir Ahmed v. The King’ Emperor (1), which the counsel for the appellant had relied upon in support of his contention that sections 129‑A (1) and (2) and section 129‑B prescribed the only method of proving concentration of alcohol in blood, offered little assistance in the present matter. In that case the Judicial Committee held that sections 164 and 364 of the Code of Criminal Procedure prescribed the mode in which confessions were to be recorded by magistrates when made during investigation, and a confession before a magistrate not recorded in the manner provided was inadmissible. In arriving at that holding the Judicial Committee relied upon the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way to the exclusion of all other methods of performance or not at all, and it applied that rule to a magistrate who was a judicial officer acting under section 164 of the Code of Criminal Procedure.

The Court concluded that sections 164 and 364 of the Code of Criminal Procedure grant specific powers to magistrates and expressly set the limits of those powers; consequently those powers could not be expanded in a manner that disregards the requirements of section 164. The Judicial Committee had observed that, in the interest of fairness, both the position of accused persons and the position of the magistracy must be taken into account. An examination of the Code reveals that the procedure governing what may be asked of, or done to, an accused during examination is defined with great precision, including how the results must be recorded and what purpose those records may serve. This careful regulation is understandable in a legal system where an accused is not permitted to give evidence on oath. Regarding the magistracy, it is evidently preferable that magistrates and judges should act as witnesses only when such testimony cannot be avoided. On occasions where it is unavoidable, for example under section 533, the matter may be recorded and therefore become admissible, which reflects a strong policy reason to assume that the Legislature intended the record to be presented in that specific form and not in any alternative. The Lords further expressed that it would be undesirable if magistrates were generally required to function as police officers rather than as judicial officers, thereby being relieved of the disability that applies to police officers under section 162 and simultaneously being exempted from the duty to make records under section 164. If such a situation were allowed, magistrates would effectively be reduced to the status of ordinary citizens acting as witnesses, and they would be compelled to give testimony about acts performed in their official capacity without any statutory procedural safeguards. The Lords were nevertheless confident that this unfortunate scenario could not arise because the statute clearly dictates the manner in which magistrates must handle confessions made during investigations, and any attempt to treat such confessions in the manner proposed in the present case would render them inadmissible. The Court also noted that the rule in Taylor v Taylor, which the Judicial Committee had relied upon, does not apply to the facts of the present matter. Moreover, section 66(2) does not prescribe any specific method for proving the concentration of alcohol in the blood of a person charged with consumption or use of an intoxicant. Section 129A was enacted principally to provide that, when its prescribed conditions are satisfied, a person must submit to being produced before a registered medical practitioner for examination and for the collection of blood. It is evident that section 129A(1) confers authority on a police officer or a prohibition officer under the stipulated conditions.

The Court observed that the statutory provision was intended to compel a person whom a police officer suspected of having consumed illicit liquor to be produced for examination and for the collection of blood before a registered medical practitioner. Nevertheless, the Court noted that proof of the concentration of alcohol in the blood could be obtained in the manner described in sections 129A(1) and (2), or by other means, as expressly provided by clause (8) of section 129A. The Court further stated that the power of a police officer to secure the examination of a person suspected of having consumed an intoxicant during the investigation of an offence under the Act was unquestionably limited by section 129A. In the case before it, however, the investigating police officer had not produced the accused before a medical officer; instead, during the officer’s own examination, Dr Kulkarni, before any formal investigation had begun, came to suspect that the appellant had consumed liquor and directed that a blood specimen be collected. The Court explained that this step might have been taken to decide the appropriate line of treatment, but it was certainly not intended to collect evidence for use against the appellant in any subsequent trial for the alleged offence of consuming liquor contrary to the Act. The Court added that if unlawful consumption of an intoxicant by an accused could be proved by means other than a report obtained under the conditions specified in sections 129A(1) and (2), there was no reason to assume that other evidence showing an excessive concentration of alcohol, which was probative of consumption, would be inadmissible. Accordingly, the Court held that the admissibility of evidence concerning the concentration of alcohol in the blood did not depend on the exercise of any power by the police or a prohibition officer. The Court also observed that the considerations raised in Nazir Ahmad’s case, concerning the inappropriateness of magistrates being placed in the same position as ordinary citizens and being required to transgress statutory provisions relating to the method of recording confessions, did not arise in the present circumstances. The Court then reproduced the wording of section 129B, stating: “Any document purporting to be— (a) a certificate under the hand of a registered medical practitioner, or the Chemical Examiner or Assistant Chemical Examiner to Government, under section 129A or of an officer appointed under sub‑section (1) of that section, or (b) a report under the hand of any registered medical practitioner in any hospital or dispensary maintained by the State Government or a local authority, or any other registered medical practitioner authorised by the State Government in this behalf, in respect of any person examined by him or upon any matter or thing duly submitted to him for examination or analysis and report, may be used as evidence of the facts stated in such certificate, or as the case may be, report, in any proceedings under this Act; but the court may if it thinks fit, and shall, on the application of the prosecution or the accused person, summon and examine any such person as to the subject matter of his certificate or as the …”.

In the judgment, the Court explained that clause (a) of Section 129B allowed a certificate prepared by a registered medical practitioner or by the Chemical Examiner to be admitted as evidence of the facts stated in that certificate. Clause (b) of the same section created another class of admissible documents. Under clause (b), reports prepared by certain categories of registered medical practitioners concerning persons examined by them, or concerning any matter or thing that had been properly submitted for examination or analysis, could also be admitted as evidence of the facts contained in those reports. Consequently, the Court held that clause (a) rendered the certificate required by Section 129A admissible, while clause (b) rendered the reports of registered medical practitioners admissible when they concerned persons, matters, or things that had been submitted for examination. The Court described Section 129B as a provision that dealt exclusively with a special mode of proving the facts stated in the certificates and reports mentioned therein, and it emphasized that the provision had no other effect or operation beyond that purpose.

The Court observed that the Sessions judge had repeatedly referred to “the presumption under Section 126B,” but clarified that Section 129B dealt with proof of facts, not with presumptions. The Court compared the provision to Section 510 of the Code of Criminal Procedure, noting that Section 129B created a rule of evidence similar to that rule. The Court explained that, without any independent proof of the facts stated, the contents of a certificate or report could be proved simply by tendering the document, which then became admissible as evidence of its contents. The Court further stated that the admission of a certificate or report under Section 129B did not create any presumption that liquor had been consumed in violation of the Act; rather, it provided proof, by evidence, of the concentration of alcohol exceeding the prescribed limit. Such proof could arise from either the method described in clause (a) or clause (b) of Section 129B, and it could also give rise to a presumption under Section 66(2). The Court described Section 129A as providing for two classes of certificates: one certifying the result of an examination by a registered medical practitioner to determine whether the examined person had consumed any intoxicant, and the other certifying the examination of blood collected by a registered medical practitioner and sent to the Chemical Examiner. Both classes of certificates were made admissible by virtue of clause (a) of Section 129B. By contrast, clause (b) dealt with the admissibility of reports concerning the examination of persons or of matters or things submitted to registered medical practitioners for analysis. The Court noted that these reports were distinct from the certificates made under Section 129A. It added that a report under clause (b) could relate to a “matter or thing,” including a blood specimen submitted for analysis. After analysing Sections 129A and 129B, the Court concluded that the Legislature initially intended to compel persons suspected of consuming intoxicants to be produced, examined, and have blood drawn, a process that previously could not be secured. However, the Legislature did not limit the law to that single method of proving consumption of illicit liquor within the meaning of Section 66(2). The Court therefore rejected any implication that the provisions were intended to exclude the operation of Section 510 of the Code of Criminal Procedure in trials for offences under Section 66(1)(b) of the Act.

The Court observed that, at the time of the enactment, there existed only a single method for establishing that an individual had consumed illicit liquor as contemplated by section 66 (2). The Legislature, by making the certificate of examination under section 129A, sub‑sections (1) and (2), admissible without the requirement of formal proof, nonetheless permitted, under sub‑section (8) of section 129A, the use of any other method of collecting evidence to prove that an accused had consumed an intoxicant. In the same vein, a report prepared by any registered medical practitioner, which tends to establish the fact in respect of matters specified in clause (b) of section 129B, was also rendered admissible. Consequently, there was no basis for assuming that the statutory scheme intended to exclude the operation of section 510 of the Code of Criminal Procedure in trials for offences punishable under section 66 (1) (b) of the Act. Section 510 of the Code declares a document purporting to be a report prepared by a Chemical Examiner, together with certain other documents relating to any matter or thing duly submitted to him for examination or analysis, admissible in any enquiry, trial or other proceeding governed by the Code. Although the language of section 510 is general, it cannot be justifiably inferred that, by enacting sections 129A and 129B, the Legislature sought to render the certificate of a competent officer concerning matters not covered by those provisions inadmissible. The prosecution was therefore free to rely, in corroborating a charge of consumption of illicit liquor, upon a certificate issued under clause (a) of section 129B when it was obtained in accordance with the procedure prescribed by section 129A, and also upon the report of a registered medical practitioner concerning any person examined by him or concerning any matter or thing duly submitted to him for examination, analysis and report. Moreover, the prosecution could also rely upon the report of the Chemical Examiner in cases that fell outside the scope of section 129A, as provided for by section 510 of the Code of Criminal Procedure. It was contended that the enactment of sections 129A and 129B of the Act effectively repealed the application of section 510 of the Code to offences under section 66 (1) of the Bombay Prohibition Act, and that this contention was supported by article 254 (2) of the Constitution. While it is correct that the power to legislate on matters relating to criminal procedure and evidence lies within the Third List of the Seventh Schedule to the Constitution, and that both the Union Parliament and the State Legislature possess concurrent authority in respect of those matters, the expression “criminal procedure” in the legislative entry encompasses the investigation of offences. Accordingly, sections 129A and 129B must be regarded as having been enacted pursuant to the powers conferred by entries 2 and 12 in the Third List. The Code of Criminal Procedure was, at the time, a law in force immediately prior to the commencement of the Constitution, and, by virtue of article 254 (2), legislation by a State Legislature concerning any of the matters enumerated in the Third List, which is repugnant to an earlier law made by Parliament or to an existing law on that subject, shall, if it has been reserved for the President’s consideration and has received his assent, prevail in the State. Bombay Act number 12 of 1959 was such a law, having been reserved for the President’s consideration and having received his assent; therefore, sections 129A and 129B will prevail in the State of Bombay only to the extent of any inconsistency with the Code, and no further. This limited prevailing effect is evident from the wording of article 254, as illustrated in the decisions of Deep Chand v. State of Uttar Pradesh and Ch. Tikaramji v. State Uttar Pradesh. Hence, it is difficult to regard section 129B of the Act as being so repugnant to section 510 of the Code as to render the latter provision wholly inapplicable to trials for offences under the Bombay Prohibition Act.

The Court noted that, under the Constitution and by virtue of Article 254 (2), any legislation passed by a State Legislature on a matter enumerated in the Third List will prevail in that State when it is repugnant to an earlier law made by Parliament or to an existing law on the same subject, but only if the State legislation was reserved for the President’s consideration and has received his assent. The Court pointed out that Bombay Act No. 12 of 1959 was indeed reserved for the President’s consideration and had obtained his assent; consequently, sections 129A and 129B of that Act will prevail in the State of Bombay to the extent that they are inconsistent with the Code of Criminal Procedure, and not beyond that. The Court stressed that this limited prevailing effect, confined to the degree of repugnancy, is clear from the language of Article 254, citing the authorities Deep Chand v. State of Uttar Pradesh (1) and Ch. Tikaramji v. State of Uttar Pradesh (2). The Court further explained that it would be difficult to regard section 129B of the Bombay Prohibition Act as so repugnant to section 510 of the Code that the latter provision would become wholly inapplicable to trials for offences under the Bombay Prohibition Act. Section 510 is a general provision governing the proof of reports prepared by a Chemical Examiner with respect to matters or things duly submitted to him for examination, analysis and report. In contrast, section 129B deals with a special class of reports and certificates. In the investigation of an offence under the Bombay Prohibition Act, the examination of a person suspected by a Police Officer or a Prohibition Officer of having consumed an intoxicant, or the examination of that person’s blood, may be carried out only in the manner prescribed by section 129A, as indicated in the judgments [1959] Supp. 2 S.C.R. 8 and [1956] S.C.R. 393. The evidence to prove the facts disclosed by such examination will be the certificate or the viva‑voce examination of the registered Medical Practitioner or the Chemical Examiner, and the law clearly implies that the examination must be conducted in the manner laid down, or not at all. Therefore, a report of the Chemical Examiner concerning blood collected in the course of an investigation of an offence under the Bombay Prohibition Act, if not made in the manner prescribed by section 129A, cannot be used as evidence in the case. To that extent, section 510 of the Code is superseded by section 129B. However, the Court held that a report of the Chemical Examiner relating to the examination of the blood of an accused person, when such blood was collected at a time when no investigation was pending or when it was not collected on the direction of a Police Officer or a Prohibition Officer, remains admissible under section 510 of the Code. It was argued before the Court of Session that the report of the Chemical Examiner had been submitted by that officer not to the Court or to a medical officer but to the police officer, and that, by virtue of section 162 of the Code of Criminal Procedure, such a report was inadmissible.

The Court observed that Section 510 of the Code of Criminal Procedure allowed proof of documents by producing them, but such proof was permissible only to the extent permitted within the strict limits prescribed by that section. It further noted that the application of Section 162(1) was expressly made subject to the provisions contained in the Code of Criminal Procedure. The Court explained that exclusion from evidence of any part of a statement made to a police officer, or of any record, for use in any enquiry or trial concerning an offence under investigation at the time the statement was made, was limited to the phrase “save as hereinafter provided.” In the Court’s judgment, the word “hereinafter” was not confined in its operation to Section 162 alone; rather, it applied to the whole Code. To limit it only to Section 162 would create a clear inconsistency between Section 207A and Section 162, because Section 207A provides that, in committal proceedings, statements recorded under Section 162 are to be regarded as evidence. The Court therefore rejected the contention that the report made to the police officer by the Chemical Examiner was inadmissible as evidence. Finally, the Court addressed the argument that the blood specimen had not been submitted in the manner prescribed by the rules framed under the Bombay Prohibition Act and therefore could not be considered “duly submitted.” It pointed out that the Government of Bombay, by a notification dated 1 April 1959, had framed rules under clause (w) of Section 143 of the Bombay Prohibition Act, known as the Bombay Prohibition (Medical Examination and Blood Test) Rules. Rule 3 dealt with the examination of a person by a registered medical practitioner before whom the person was produced under sub‑section (1) of Section 129A. Rule 4 specified the method of collection and forwarding of a blood specimen, and Rule 5 dealt with certificates of tests of “sample blood.” All of these rules related to the medical examination of a person who was produced before a registered medical practitioner pursuant to sub‑section (1) of Section 129A. The Court held that to an examination to which Section 129A did not apply, those rules would have no application. Since the law had not prescribed a particular method of submitting a blood specimen collected from an accused when the specimen was taken before any investigation had begun, the Court found it unnecessary to consider whether the expression “duly submitted” in Section 510 meant only compliance with the prescribed rules or, as the learned Sessions Judge had suggested, submission after taking adequate precautions to ensure safety and to guard against tampering. In the present case, the blood specimen had been collected by Dr Rote, handed over to the police officer on demand, and subsequently submitted to the Chemical Examiner for analysis; the Court concluded that, in its judgment, this constituted a “duly submitted” specimen. Accordingly, the Court was unable to accept the appellant’s counsel’s contention that, on the view taken by the Sessions Judge, the appellant should be acquitted.

For the reasons already stated, the Court was also unable to agree with the learned judge that the appellant should be retried before the trial Court. Accordingly, the order passed by the Trial Magistrate was set aside. The Court directed that the Sessions judge should hear the appeal and dispose of it in accordance with the law. The Sessions judge must first give the prosecution an opportunity to lead evidence on the matters identified in this judgment. Any additional evidence may be taken by the Sessions judge himself, or the Sessions judge may order that such evidence be recorded in the Trial Court. The accused shall be examined under section 342 of the Code of Criminal Procedure and shall be given an opportunity to lead rebuttal evidence if he so desires. The Sessions judge may also require the presence of the Chemical Examiner for examination before him or before the Magistrate if the judge thinks that a viva‑voce examination of the Chemical Examiner is necessary to achieve complete justice in the case. Subject to the foregoing modifications, the appeal was dismissed.

Justice Das Gupta expressed the view that the appeal should be allowed. The appellant had been convicted under section 66(1)(b) of the Bombay Prohibition Act, 1949 for the offence of having consumed an intoxicant in violation of the Act, and had been sentenced to a fine of Rs 500 or, in default, to rigorous imprisonment for two months. On appeal, the Sessions judge at Jalgaon held that the evidence already on record was insufficient to establish the guilt of the accused and therefore set aside both the conviction and the sentence. However, that judge ordered that the matter be remitted to the learned Judicial Magistrate of Bhusawal for a re‑trial so that the prosecution could be given an opportunity to introduce evidence linking the chemical examination report produced at trial with the blood sample taken from the accused at 6 a.m. on 3 April 1961, a few hours after the alleged consumption of the intoxicant. It was clear that the sole purpose of seeking such additional evidence was to enable the prosecution to avail itself of the benefit provided under section 66(2) of the Bombay Prohibition Act. The accused filed a revision petition against this order, which was rejected by the High Court of Bombay. After obtaining special leave from this Court, the present appeal was filed. The principal contention raised in support of the appeal was that the blood sample taken at 6 a.m. had not been collected in accordance with the provisions of section 129A of the Prohibition Act, and therefore no evidence regarding the contents of that blood could be admitted for the purposes of section 66(2) of the Act. The Court noted that this contention required careful consideration because it was not disputed that the prosecution could not succeed unless it was able to rely on the benefit of section 66(2) of the Prohibition Act. To understand, the nature of

In order to understand the advantage granted to the prosecution by section 66 (2) of the Prohibition Act, it was necessary to recall briefly a number of other provisions of the same statute. Section 13 of the Act makes it unlawful, among other things, to consume an intoxicant. The definition of “intoxicant” is provided in section 2 (22), where it is described as “any liquor, intoxicating drug, opium or any other substance which the State Government may by notification in the official Gazette declare to be an intoxicant.” The term “liquor” is defined in section 2 (24); it includes (a) spirits of wine (including denatured spirits), wine, beer, toddy and all liquids consisting of or containing 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. It was also essential to refer to section 24 A, whose relevant portion for the present analysis states that nothing in the Chapter shall be deemed to apply to: (1) any toilet preparation containing alcohol which is unfit for use as intoxicating liquor; (2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor; (3) any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor; and (4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor. Because section 13 belongs to Chapter III, the legal position follows that the prohibition contained in section 13 against the consumption of liquor does not extend to any of the substances enumerated in section 24 A.

The Court also noted that, according to the decision in State of Bombay (now Gujarat) v. Narandas Mangilal Aggarwal, the burden of proving that the substance alleged to be contravened under section 13—or any other provision of the Chapter—does not fall within any of the four categories listed in section 24 A rests on the prosecution. Consequently, a prosecution for an offence under section 66 (1) (b) cannot succeed merely by demonstrating that the accused drank liquor. The prosecution must also establish that the liquor consumed was not a toilet preparation, a medicinal preparation, an antiseptic preparation or solution, or a flavouring extract, essence or syrup containing alcohol that is unfit for use as intoxicating liquor. In other words, before a conviction can be sustained under section 66 (1) (b) for the consumption of an intoxicant, the prosecution is required to prove two distinct elements: first, that the accused actually consumed an intoxicant; and second, that the intoxicant consumed does not belong to any of the exempted classes described in section 24 A. Section 66 (2) assists the prosecution in meeting both of these requirements by providing that, once the prosecution alleges that the accused consumed liquor, the evidentiary burden shifts in the manner prescribed by that provision.

In the case, the Court explained that once the prosecution establishes that the concentration of alcohol in the accused’s blood is not less than 0.05 per cent weight in volume, the evidentiary burden shifts to the accused to disprove the elements of the offence described earlier. Consequently, when the prosecution succeeds in proving that alcohol concentration, the accused remains vulnerable to conviction unless he can demonstrate either that he did not consume any intoxicant or that the substance he consumed fell within the categories of a medicinal preparation, a toilet preparation, an antiseptic solution containing alcohol, or a flavouring extract, essence, or syrup containing alcohol that is unfit for use as intoxicating liquor. The Court noted that, in the absence of a specific statutory provision governing how the prosecution may prove the alcohol concentration, the prosecution would be free to obtain the accused’s blood by any lawful method, submit it to an expert for analysis, and present the expert’s testimony before the Court, either through live examination of the expert or through the expert’s written report if permitted by law. However, the legislature had inserted a special provision to prescribe the exact procedure for presenting evidence of blood alcohol concentration, and this provision is contained in section 129A of the Act. Section 129A(1) provides that when, during the investigation of any offence under the Act, a Prohibition Officer duly empowered by the State Government or a Police Officer has reasonable grounds to believe that a person has consumed an intoxicant and that a medical examination or blood collection is necessary to establish the consumption, the officer may produce the person before a registered medical practitioner authorized by the State Government for that purpose. The officer may then request the medical practitioner to issue a certificate on the findings regarding consumption of an intoxicant and to forward the collected blood to the Chemical Examiner, Assistant Chemical Examiner, or any other officer appointed by the State Government for testing. Section 129A(2) further requires the registered medical practitioner, before whom the person has been produced, to examine the person, collect the blood in the manner prescribed, and forward it as directed, while also providing a certificate in the prescribed form containing the results of the examination.

The officer who produces a person before a registered medical practitioner must receive a certificate in the prescribed form that records the result of the practitioner’s examination. The Chemical Examiner, the Assistant Chemical Examiner, or any other officer appointed under sub‑section (1) must then certify the result of the blood test that is forwarded to him. That certification must be in the prescribed form and must state the percentage of alcohol found in the blood together with any other particulars that are necessary or relevant. If a person resists being produced before a registered medical practitioner under sub‑section (1), or resists examination of his body or the collection of his blood after production, the law permits the use of all means that are reasonably necessary to secure his production, his bodily examination or the collection of blood required for the test. In the case where the person produced is a female, the examination and the collection of blood must be carried out by, or under the supervision of, a female registered medical practitioner who is authorised by a general or special order of the State Government. Such examination or collection of blood from a female must be performed with strict regard to decency. Any resistance to being produced before a registered medical practitioner, to the examination of the body, or to the collection of blood as described in this section is deemed to be an offence punishable under section 186 of the Indian Penal Code. All expenses incurred in enforcing the provisions of this section, including any fees payable to the registered medical practitioner or to the officer appointed under sub‑section (1), are to be defrayed from the funds provided by the State Legislature. If a Prohibition Officer or a Police Officer proceeds vexatiously or unreasonably under sub‑section (1), the officer, upon conviction, may be fined up to five hundred rupees. The section does not prevent the fact that a person accused of an offence having consumed an intoxicant from being proved by means other than those prescribed in this section.

The appellant argued that the prosecution cannot rely on evidence of alcohol concentration in the blood unless the blood has been collected, forwarded and examined in strict compliance with the procedure laid down in section 129 A. The Court agreed with that contention. It observed that the detailed procedural requirements of section 129 A were introduced by the same amending Act that created the special right in favour of the prosecution by enacting section 66 (2). The Court held that it is unreasonable to assume that, despite the detailed procedure, the legislature intended for the prosecution to disregard the prescribed method. Consequently, the Court concluded that compliance with the procedure of section 129 A is essential for the admissibility of blood‑alcohol evidence.

The Court explained that the first sub‑section of the provision required that an accused person be produced before a medical officer for two distinct purposes. The first purpose was to allow the medical officer to examine the body of the accused in order to obtain evidence that the accused had consumed an intoxicant. The second purpose was to permit the medical officer to draw the accused’s blood so that the blood could later be tested to determine the percentage of alcohol it contained. The Court noted that once the accused was produced before the medical practitioner, the practitioner was required to examine the accused and to issue a certificate stating whether the accused had consumed an intoxicant. The practitioner was also empowered to take a sample of the accused’s blood if the police requested it, but the practitioner was not authorized to examine the blood himself.

The Court further clarified that the statute contained a specific provision governing what happened to the blood after it was drawn by the registered medical practitioner. According to that provision, the practitioner had to forward the blood sample either to the Chemical Examiner, to the Assistant Chemical Examiner, to the Government, or to any other officer who might be appointed by the State Government for that purpose. The Court stressed that the officer who received the forwarded blood – whether the Chemical Examiner, the Assistant Chemical Examiner, or any other appointed officer – was duty‑bound to test the blood and to issue a certificate stating the percentage of alcohol found in the blood together with any other particulars that might be necessary or relevant to the case.

In addition, the Court pointed out that the third sub‑section authorised the use of “all means” that might be necessary to secure the production of the accused, the examination of his body, or the collection of his blood, if the accused offered any resistance. The fourth sub‑section was described as containing a special provision that dealt with the manner in which a medical examination should be carried out and blood should be collected when the accused was a female. The fifth sub‑section, according to the Court, treated any resistance to being produced before a medical practitioner, to the examination of the body, or to the collection of blood as an offence. The sixth sub‑section dealt with the manner in which the expenses incurred in carrying out these procedures should be met. The seventh sub‑section made a Prohibition Officer or a Police Officer liable to a penalty if that officer proceeded vexatiously or unreasonably under the first sub‑section. The Court observed that the eighth sub‑section, which was the last sub‑section in the section, required separate consideration and would be dealt with later.

The Court then referred to a well‑recognised principle of statutory interpretation: when legislation creates a new right and at the same time prescribes a specific mode for exercising that right, and unless there is something in the legislation that indicates a contrary intention, it is ordinarily reasonable to conclude that the right cannot be exercised in any other mode. Applying that principle to the present case, the Court found that there was no indication to the contrary and that all the surrounding indications pointed, in its opinion, to the view that the detailed procedure set out in section 129A was intended by the legislature to be the sole method by which the right conferred on the prosecution by section 66(2) could be exercised. The Court therefore questioned what the legislature’s purpose had been in prescribing such a detailed procedure.

In this judgment the Court examined the purpose of section 129A, which dealt with the determination of the alcoholic content of the blood of a person accused of an offence involving the consumption of an intoxicant. The Court observed that the legislature had drawn a careful line of responsibility between the registered medical practitioner who first examined the accused and, if required, collected his blood for testing, and the Chemical Examiner, the Assistant Chemical Examiner, or any other officer appointed by the State Government for the specific task of analysing the blood sample. The Court found it reasonable to conclude that the detailed provision was meant to safeguard the special right created by section 66(2), which shifted the burden of proving the presence of alcohol onto the accused, from being exploited in a way that could create loopholes, errors, or unfair practices. This protective purpose was further underscored by the seventh sub‑section, which provided that any Prohibition Officer or Police Officer who proceeded vexatiously and unreasonably under subsection (1) would, upon conviction, be liable to a fine of up to five hundred rupees. The Court reasoned that all the legislative steps establishing a special procedure would be defeated if the Prohibition Officer or Police Officer were permitted to arrange for the taking of blood and its testing by any other method. Consequently, the Court held that it could not be said that the Prohibition Officer or Police Officer was authorized to have the blood taken and also tested by the registered medical practitioner for the purpose of producing evidence of alcoholic concentration under section 66(2). Such an interpretation would contradict the clear language of section 129A, which assigned the medical practitioner only the duty of collecting the blood and forwarding it to the Chemical Examiner, Assistant Chemical Examiner, or another officer designated by the State Government for testing. To suggest that the legislature did not intend the procedure prescribed in subsection 129A to be the sole method for ascertaining blood alcohol content, thereby allowing the prosecution to rely on section 66(2), would be to disregard the legislature’s explicit instruction that the medical practitioner’s role was limited to collection, not analysis. The Court, while expressing respect for the learned brethren who favoured a contrary view, maintained that attributing an intention to the legislature that it did not express would be wholly arbitrary. The Court concluded that the legislature’s purpose was unambiguous: the prescribed procedure in section 129A was intended to be the exclusive means for determining alcoholic content in the accused’s blood for the purpose of invoking section 66(2).

The Court rejected the opposite view and held that it is wholly unreasonable to ascribe to the legislature an intention that it did not mean what it expressly said. Even if any doubt existed regarding whether the legislature intended to make the procedure prescribed in section 129A the sole method for enabling the prosecution to obtain the benefit of section 66 (2), the Court observed that such doubt is entirely dispelled by the eighth sub‑section of section 129A. That sub‑section, as previously set out, provides that “nothing in this section shall preclude the fact that the person accused of an offence has consumed an intoxicant from being proved otherwise than in accordance with the provisions of this section.” The Court emphasized that the legislature did not phrase this sub‑section as “nothing in this section shall preclude the fact that the alcoholic content of the blood of the person … being proved otherwise than in accordance with the provisions of this section.” The omission, the Court said, must be regarded as deliberate. The operative part of the section, as earlier noted, deals with two separate matters: first, the medical examination of a person’s body to establish consumption of an intoxicant; and second, the testing of that person’s blood to determine the percentage of alcohol present. With respect to the first purpose, the eighth sub‑section makes a clear provision that the section does not exclude any other mode of proof, meaning that the fact of consumption may be proved by evidence other than that provided in the section. By contrast, regarding the second purpose – the determination of the blood’s alcohol percentage – no such saving clause is enacted. The Court applied the principle of expressio unius exclusio alterius, concluding that the legislature’s intention to allow other modes of proof for consumption necessarily implies an intention to exclude other modes of proof for the specific percentage of alcohol. Consequently, the Court found that the legislature intended that the percentage of alcohol in the blood could be proved only by evidence obtained in the manner prescribed by the amending Act in section 129A. This construction aligns with section 66 (2), which confers on the prosecution the benefit that if the alcoholic percentage of an accused’s blood is proved to be not less than 0.05, the accused is presumed guilty under section 66 (1) unless he proves the contrary, and that such proof must follow the procedure laid down in section 129A.

Section 129A was examined, and the Court observed that although the statute permits the prosecution to establish that an accused person consumed an intoxicating substance “otherwise than in accordance with the provisions of (s. 129A),” the same flexibility is not granted for proving the percentage of alcohol in the accused’s blood; that measurement must also be proved “otherwise than in accordance with the provisions of this section.” In reaching this conclusion the Court noted that it had not ignored the effect of section 129B, which authorises certain reports and certificates to be admitted as evidence even when the person who prepared the report or certificate is not examined. Section 129B, clause (b), specifically refers to “a report by a registered medical practitioner ‘upon any matter or thing duly submitted to him for examination or analysis and report’” and does so outside the ambit of section 129A. The Court recognized that this reference indicates that the legislature contemplated that a registered medical practitioner might be called upon to examine “any matter or thing,” not solely the matter covered by section 129A.

The argument presented by the respondent was that clause (b) could refer only to the examination of blood for the purpose of ascertaining its alcoholic content. The Court stated that it could not accept the view that the only “matter” or “thing” that could be submitted to a registered medical practitioner for examination or analysis must be the accused’s blood and that such examination could be limited solely to determining the alcohol percentage. The Court further observed that the provision does not prescribe how the “submission” of the “thing” is to be proved. Consequently, it is possible to imagine a scenario in which, for example, vomitus expelled by an accused is seized by an investigating officer, forwarded to a registered medical practitioner for analysis, and the practitioner’s testimony establishes the fact that such a submission occurred.

However, where the blood of a person is submitted for examination, the Court found it unreasonable to assume that anyone other than a qualified medical practitioner could have collected the blood. The provision does not state that the practitioner’s report will automatically become evidence of the facts asserted therein. If the respondent’s construction were adopted—that “thing” in clause (b) of section 129B can refer only to the accused’s blood—the result would be a paradoxical situation. In that scenario, the registered medical practitioner who performed the analysis of the blood would not be required to appear in evidence to prove the fact of the analysis or its result, while the other medical practitioner who actually collected the blood would be compelled to appear in court to prove that fact, and the certificate or report produced by that collector would not be admissible as evidence of the facts it contains. The Court expressed that there is no compelling reason to accept a construction that leads to such anomalous consequences.

The Court then referred to a comparable question that had been decided by the Privy Council in the case of Nazir Ahmad v. The King Emperor. That earlier case concerned the procedure laid down in the Code of Criminal Procedure for the recording of confessions by magistrates, and the Court indicated that the present issue bore similarity to the questions addressed in that decision.

The Code of Criminal Procedure contained specific rules for the recording of confessions made to magistrates. Section 164 laid down a detailed procedure that a magistrate had to follow when recording any confession given during the investigation of a case or at any later stage before the commencement of an enquiry or trial. Section 364, on the other hand, prescribed the procedure to be observed when a magistrate or any court other than a High Court established by a Royal Charter examined an accused person. The case of the appellant, Nazir Ahmad, became relevant to the present discussion. Nazir Ahmad had been convicted largely, if not wholly, on the basis of a confession that he allegedly made to a magistrate. Evidence of that confession was presented by the magistrate, but the magistrate had not recorded the confession in the manner required by sections 164 and 364 of the Code. The High Court had held that the unrecorded confession was admissible. In support of that view, counsel before the Privy Council argued that the confession should be admissible because it was unrelated to the requirements of section 164 or any formal record, and that, pursuant to sections 17, 21 and 24 of the Evidence Act, the statement was admissible in the same way as a statement made before a person other than a magistrate. The Privy Council rejected this argument. It observed that sections 164 and 364 must be read together and that it would be an unnatural construction to allow any procedure other than the one set out with such minute particularity in those sections. The Council further noted that, if the construction preferred by the Crown were accepted, the safeguards and precautions laid down in sections 164 and 364 would become almost meaningless. Under such a construction any magistrate of any rank could merely testify to a confession without first ensuring that the confession was made voluntarily, without reading the alleged statement to the accused, or without having the confession formally vouched by a magistrate. Consequently, the range of magisterial confessions would be greatly expanded, and the provisions of section 164 would be almost inevitably disregarded, just as they had been in the case then before the Council. The Court found that the considerations which persuaded the Privy Council to reject the argument that a confession not recorded according to the statutory procedure could still be admitted were equally applicable to the present issue. The Court therefore held that if evidence concerning the alcoholic content of blood were permitted when the procedure in section 129A had not been complied with, the protective provisions of that section would likewise be rendered ineffective.

The Court noted that if the provisions of the section were ignored, they would “almost inevitably be widely disregarded”. It observed that the legislature had not intended such a result, a conclusion that was clear from the language of the eighth sub‑section of section 129A. For all of these reasons, the Court concluded that, because the procedure prescribed in section 129A had admittedly not been observed in testing the blood sample taken at six o’clock in the morning, the prosecution could not rely on the benefit of section 66(2) of the Prohibition Act.

The Court further held that there was no justification for the order issued by the Sessions judge, which had sent the case back to the Magistrate for a re‑trial so that the prosecution might introduce evidence concerning the examination of the blood taken at six a.m. on 3 April 1961. Accordingly, the Court allowed the appeal, set aside both the order of the High Court and the order of the Sessions judge directing a re‑trial, and directed that the appellant be acquitted.

In accordance with the opinion of the majority, the Court dismissed the appeal, subject to the modifications specified in its judgment, and entered an order of appeal dismissal.