PANDIT UKHA KOLHE versus THE STATE OF MAHARASHTRA

DAS J.-1 think this appeal should be allowed. The appellant was convicted under s. 66 (I) (b) of the Bombay Prohibition Act, 1949 on the charge of having consumed an intoxicant agai11st the provisions of the Prohibition Act and was sentenced to pay a fine of Rs. 600/- or in default to suffer rigorious imprisonment for two months.

p. 956

On appeal, the Sessions Judge, Jalgaon, being of opinion that the evidence already on the record was not sufficient to establish the guilt of the accused, set aside the conviction and sentence passed against him. He, however, ordered the case to be sent back to the learned Judicial Magistrate, Bhusawal, for re-trial so that the prosecution might have an oppor• tunity of adducing evidence l,' ,_._;nnect the report of the chemical examination which was produced at the trial with the blood of the accused perso.1 which was taken at 6 a. m. on April 3, 1961, a few hours after the alleged consumption of the intoxicant. It is obvious that the only purpose that such additional 'evidence was expected to serve was that the prosecu· tion would get the benefit of s. 66 (2) of the Bombay Prohibition Act. The Revision petition filed by the accused against this order was rejected by the High Court of Bombay. Against that order of rejection, this appeal has been preferred after obtaining special leave from this Court.

pp. 956–957

The main contention urged in support of the appeal is that as the blood that was taken at 6 a. m. was not taken in accordance with the provisions of s. 129 A of the Prohibition Act, no evidence as regards the contents of that blood is admissible in law for the purpose of s. 66 (2) of the Prohibition Act. It is necessary to consider this contention care· fully as it is not disputed that the prosecution must fail unless it can get the benefit of s. 66 {2) of the Prohibition Act.

p. 957

To understand, the nature of the right conferred on the prosecution bys. 66 (:!) it will be helpful to maintain briefly a few other sections of the Act. Section 13 of the Act prohibits among other things the consumption of an intoxicant. Section 2 (22) defines intoxicant to mean "any liquor, intoxicating drug, opium or any other !ubstance, which the State Government may by notification in the official gazette declare to be an intoxicant." "Liquor" is defined ins. 2 (24) to include (a) spirits of wine (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 purpose of this Act. It is important to mention also s. 24 A of the Act, the relevant portion of which for our present purpose runs thus :- "Nothing in this Chapter shall be deemed to apply to:

pp. 957–958

( 1) Any toilet preparation conta1mng alcohol which is unfit for us as intoxicant liquor;

p. 958

(2) Any medicinal preparation contammg alcohol which is unfit for use as an intoxicating liquor;

p. 958

(3) Any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor;

p. 958

(4) Any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor."

p. 958

As section 13 is in Chapter III the position in law is that the prohibition ins. 13 against consumption of liquor docs not apply to any of the subs· taoces mentioned in s. 24- A. It is necessary to mention also that it has been held by this Court in State. of Bombay (now Gujarat) v. Narandas Mangi· lal Aggarwal('), that the burden of proving that the substances in respect of which the prohibition in s. 13 or any other section of the Chapter is alleged by the prosecution to have been contravened, does not fall within any of the four classes mentioned ins. 24-A, is on the prosecution.

p. 958

It is clear therefore that a prosecution for an offence under s. 66(1 )(b) cannot succeed by the mere proof of the fact that the accused consumed liquor. It is also to be proved that the liquor does not fall ~upp. within any of the substances mentioned in s. 24(A). In other words, before a person can be .convicted under s. 66(1)(b) of the Prohibition Act for consump· tion of an intoxicant the prosecution has to prove two things. It has first to prove that the accused consumed an intoxicant, and secondly, it has to prove that that intoxicant was not either a toilet preparation or a medicinal preparation or an anti· septic preparation or solution containing alcohol or a flavouring extract, essence or syrup containing alcohol, which while containing alcohol was not unfit for use as intoxicating liquor. Section 66(2) of the Act comes to the aid of the prosecution in proving both these things by providing that if after alleging that the accused consumed liquor the prosecution proves 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 disproving the ingredients of the offence as mentioned above will ·be shifted to the accused. The result of this is that where the prmecution proves such concentration of alcohol in the blood of the accused person the accused will be liable to conviction until and unless the accusei:l proves either that he did not consume any intoxicant or that the substance he consumed was a medicinal or toilet preparation or any antiseptic preparation or solution containing alcohol or any flavouring extract, essence or syrup containing alcohol, "which is unfit for use as intoxicating 1quor. . "

pp. 958–959

If there had been no special provJS1on in the Act as to how this concentration of alcohol in the bloo~ of the accused person could be proved by the prosecution, it would undoubtedly be open to the prosecution, to obtain the blood of the accused person in any manner not prohibited by law, have it examined by an expert and produce the evidence of the expert before the Court-either by examining the expert himself or if the law permits by producing his report even without such examination. A special provision has however been made by the legislature as regards the mode in which the prosecution can bring before the Court the evidence as regards the concentration of alcohol in the blood of the accused person. This provision appears in s. 129A of the Act. That section runs thus :- Section 129A.

pp. 959–960

( 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 the procuring of evidence thereof it is necessary that his body be medically examined, or that his blood be collected for being tested for determining the percentage of alcohol therein, such Prohibition Officer or Police Officer may produce such person before a registered medical practitioner (authorised by general or special order by the State Government in this behalf ) for the purpose of such medical examination or collection of blood, and request such registered medical practitioner to furnish a certificate on his finding whether such person has consumed any intoxicant and to forward the blood collected by him for test to the Chemical Examiner or A~istant Chemical Examiner to Government, or to such other officer, as the State Government may appoint in this behalf.

p. 960

(2) The registered medical practitioner before whom such person has been produced shall r:xamine such person and collect and forward in the manner prescribed, the blood of such person, and furnish to the officer by whom such person and collect and forward in the manner prescribed, the blood of such person, and furnish to the officer by whom such person has been produced, a certificate in the prescribed form containing the result of his examination. The Chemical Examiner or Assistant Chemical Examiner, to Govern· ment, or other officer appointed under sub-section ( l) shall certify the result of the test of the blood forwarded to him, stating therein, in the prescribed form, the percentage of alcohol, and such other particulars as may be necessary or relevant. · (3) If any person offers resistance to his production before a registered medical practi• tioner under sub-section (1) or on his production before such medical practitioner to the exami· nation of his body or to the collection of his blood, it shall be lawful to use all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test.

pp. 960–961

( 4) If the person produced is a female, such examination shall be carried out by, and the blood shall be collected by or under the supervision of a female registered medical practitioner authorised by general or special order, by the State Government in this behalf, and any examination of the body, or collection ofblood, of such female shall be carried out or made with strict regard to decency.

p. 961

( 5) Resistance to production before a registered medical practitioner as aforesaid or to the examination of the body under this section, or to the collection of blood as afore• said, shall be deemed to be an offence under section 186 of the Indian Penal Code.

p. 961

(6) Any expenditure incurred for the purpose of enforcing the provision of this section including any fees . payable to a registered medical practitioner or the officer appointed under sub-section (l), be defrayed out of the money provided by the ~tate Legislature.

pp. 961–962

( 7) If any Prohibition Officer or Police Officer vexatiously and unreasonably proceeds under sub-section ( l ), he shall, on conviction, be punished with fine which may extend to five hundred rupees.

p. 962

(8) 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".

p. 962

On behalf of the appellant, it is contended that no evidence as regards the concentration of alcohol in the blood can br. given by the prosecution unless the blood has been collected and forwarded and thereafter examined in accordance with the procedure laid down in s. 129 A. In my opinion, this contention should succeed.

p. 962

It has to be noticed, i1J the first place, that the very detailed provisiom ma:ie in this section s. 129 A-were mad~ by the same amending Act which created this special ri~ht in favour of the prosecution by enacting e. !i6 (2). It does not, in my opinion. stand to reason to say that even when making such detailed procedure the legislature con· templated that thmc in char.gc of the prosecution might choose not to follow the procedure at all.

p. 962

It has to be noticed that the production of an accused person before a medical officer is provided for in the first sub section for two different purposes. One is for the examination of his body for procuring evidence of consumption of an i!'!toxican.t by him and the other is the collection of his blood for being tes~ed for . determining the percentage of alcohol therem. When the accused has been produced the medical practitioner will examine the accused and himself give a certificate whether the person has consumed an intoxicant. He will also take the person's blood if so requested but he is given no authority to examine the blood himself. The definite provision as regards the examination of the blood is that after the blood has been collected by the registered medical practitioner he will forward the same either to the Chemical Examiner or the Assistant Chemical Examiner to Government or any other officer as the State Government may appoint. It is the duty of the officer be he the Chemical Examiner or the Assistant Chemical Examiner or any other officer appointed for the purpose to whom the blood has been forwarded, to test the blood and to give a certificate stating the percentage of alcohol in the blood and such other particulars as may be

pp. 962–963

necessary or relevant. Provision is also made in the • third sub•section for "use of all means" that may be necessary to secure the production of such person or the examination of his body or the collection of his blood, if he offers resist ance. The fourth subsection makes special provision as regards how the medical examination shall be carried out and the blood shall be collected where the person is a female. The fifth sub-section provides that resistance to production before a medical practitioner or to the examination of the body or to the collection of blood · shall be deemed to be an offence. The sixth sub-section provides as to how the expenditure shall be met. The seventh sub·section makes the Prohibition Officer or Police Officer liable to penalty if he has proceeded vexatiously and unreasonably under

p. 963

sub-section (1). The eighth sub-section which is • the last in the section and deserves special consideration will be separately dealt with.

p. 963

One of the well.recognised principles of .interpretation of statutes is that when a law creates a new right and at the same time prescribes a modei.. in which that right may be exercised, it will, ·in the absence of anything indicating a contrary intention, be ordinarily reasonable to hold that the right cannot be exercised in any other mode. In the present case, far from there bcin11; any indication to the contrary, all the indications are, in my opinion, in favour of the view that the prescribed mode in s. l 29A was intended by the legislature to be the only mode in which the right given to the prosecution by s. 66 (2) can be exercised. What was the reason behind the legis. lature's intention to prescribe such a detailed procedure ins. 129 A for the ascertainment of the alcoholic content of the blood of a person accused of an offence in connection with the consumption of an intoxicant ? Why did it make such a careful demarcation of functions between the re11;istered medical practitioner before whom a person is first produced by entro.~ting to him onlv the duty of examining the body of the person and if so requested of collecting his blood "for being tested for determining the nercentage of alcohol", and the Chemical Exa'lliner or the Assistant Chemical Examiner or anv other officer appointed by the State Government in this behalf by entrusting to them only the dutv of testing the blood? It appears reasonable to think that the real reason behind all this detailed provision was the legislature's anxietv to ensure that the very special righ.t created bv s. 66 (2) in favour of the prosecution for the proof of alcoholic content of the blood shifting the onus on the accused should not he availed of in a manner that might leave loopholes for either errors or unfair practices. This motive is also clear from the provision made in the seventh sub-section that " if any Prohibition Officer or Police Offiicer, vexatiously and unreasonably proceed, under sub-section (1 ), he shall, on conviction, be• punished with fine which may extend to five hundred rupees." All these steps taken by the legislature for prescribing a special procedure would be set at naught if it was .left open to the Prohibition Officer or Police Officer to arrange for the taking of blood and testing thereof in any other manmr. Thus, to say that it is open to the Prohibition Officer or the Police Officer to have the blood taken and also tested by the registered medical practitioner himself for using his finding as evidence to prove alcoholic concentration in the blood for the purpose of s. 66 (2) would be to fly in the face of the clear indication in s. 129A that it is not for the registered medical practitioner before whom a person is produced to test the blood, that it is for him only to collect the blood and then forward it to the Chemical Examiner or the Assistant Chemical Examiner or such other officer as the State Government may appoint in this behalf to test the blood for the alcoholic content. To say that the legislature did not intend the procedure as prescribed ins. 129A to be the only procedure for the ascertainment of alcoholic content in a person's blood for the purpose of getting the benefit of s. 66 (2) of the Act is really to hold that even though the legislature did definitely say that the registered medical practitioner should only collect the blood and forward it to the other functionary named in the section whose duty would be to test it, the legislature was quite content that this direction need not be complied with. With great respect for the learned brethren who take the contrary view, I am of opinion, that it is wholly arbitrary to attribute to a legislature an intention that it did not mean what it said.

pp. 964–965

Even if there had been any scope for doubt on the question whether the legislature intended to prescribe the procedure to be the only procedure available to enable the prosecution to get the aid of s. 66 (t), that doubt is, in my opinion, completely set at rest by the 8th sub-section of s. 129A. This UG6 SUPREME COURT l{EPOl<.'1 S (1!164] VOL. sub-section, as already set out, s:iys 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 acc•irdance with the provisions of this section . ., It is important to note at once that the legislature did not in this sub-section say "1hat nothing in this section shall preclude the fact of the alcoholic content of the blood of the person from being proved otherwise than in accordance with the provisions of this section." This omission cannot but be held to be deliberate.

pp. 965–966

The operative portion of the section deals, as has already been pointed out earlier, with two distinct matters-one as regards the medical examination of a person's body for the purpose of establishing that lie has consumrd an intoxicant and the other as regards the testing of his hlood for determining the percentage of alcohol therein. As regards the first of these purposes the 8th sub·scction makes a clear provision that the section shall not have the effect of excluding any other mode of proof. In other words, the fact that a person has consumed an intoxicant may be proved by evidence other than what is made available under the provisions of this section. As regards the other purpose, viz .. the determination of the percentage of alcohol in the blood no such saving clause is enacted. In my opinion, this is an eminent case for the application of the principle expres.~io unius, exclusio ttltuiu..' and that the expression of the legislature's intention that the provisions of the section shall not preclude the fact of consumption of an intoxicant being proved by other modes justifies a conclusion that the legislature's intention was that the section shall preclude the fact that the person had a particular percentage of alcohol in his blood from being proved otherwise than in accordance with the provisions of the section.

p. 966

It appral\' clear to me, on a consideration of s. 66 (2) together with s. J 29A that having conferred on the prosecution the benefit in s. 66 (2) that if the alcoholic percentage of an accused person's blood is proved to be not less than 0.05 the accused would be presumed to be guilty of an offence under s. 66 ( 1) unless he proves to the contrary, the legislature at the same time intended that this fact can be proved only by evidence obtained in the manner provided by the same amending Act in the new section 129 A. It is for this reason that while leaving it open to the prosecution to prove the consumption of an intoxicant by an accused person "otherwise than in accordance with the provisions of (s. 129A)" it did not leave it open to the prosecution to prove the fact of percentage of alcohol. in the blood also "otherwise than in accordance. with the provisions of this section." ·

p. 967

In coming to this conclusion I have not overlooked the fact that s. 129B in providing for certain reports and certificates being used as evidence even without the examination of the person who prepared the report or gave the certificate, has mentioned in cl. (b) a report by a registered medical practitioner "upon any matter or thing duly submitted to him for examination or analysis and report", outside s. 129A. It was pointed out that this very fact shows that the legislature contemplated the examination by a registered medical practitioner of "any matter or thing", even apart from s. 129A. The argument is that this can only refer to the examination of blood for ascertaining its a!coholic content. I am unable to agree that the only "matter" or "thing" that can be submitted to a registered medical practitioner for examination or analysis must be the blood of an accused person and the examination can only be for ascertaining the alcoholic percentage •

p. 967

It is worth noticing that nothing is said in this clause as to how the "submission" of the "thing"

p. 967

has to be proved. On~ can understand the submission of things like, sav, some vomit by an accused per;on being seized by an investigating officer and submit1ir1g it to a registered medical practitioner for examination or a11alysis and himself coming to prove the fact of such submission. Where, however, as suggested, the blood of a person is being submitted to a registered medical practitioner it will be unreasonable to think that anybody except a qualified medical practitioner could have collected the blood. There is no. provision in this clause that his report in the matter will be available as evidence of the fart stated therein. On the construction suggested by the respondent that "thing" in cl. (b) of s. l z!JB can only mean blood of the accused person, we shall have tht' curious position that while the registered medical practitioner who examined the blood need not come into the witnessbox to prove that fact and the result of his examination, the other medical practitioner who actually collected the blood will have to come into the witness box to prove that fact and his certificate or report will not be evidence of facts stated therein. I can see ...... no compelling reason for accepting a construction which will have such curious consequences.

p. 968

A question somewhat similar to the one now before us fell to be decided by the Privy Council in Nazir Ahmad v. The King Emperor ('). That question arose in connection with the procedure laid down in the Code of Criminal Procedure for the record of confessions by magistrates. Whik s. 164 of the Code lays down a detailed procedure for recording by magistrates of any confession made in the course of an investigation of a case or at any time afterwards before the commencement of the enquiry or trial, s. 364 lays down the procedure that should be followed by a magistrate or by any court other than a High Court established by a Royal Charter when any accused is examined. The appellant, (Nazir Ahmad) was convicted mainly, if not entirely, on the strength of a confession said to have been made by him to a magistrate of which evidence was given by the magistrate but which was not recorded by the magistrate in the manner required bys. 164 and s'. 364 of the Code. The High Court held that this evidence was admissible. In support of ·that ·view it was urged before the Privy Council that the evidence was admissible just because it has nothing to do wi~h s. 164 or with any record and that by virtue of ss. 17, 21 and 24 of the Evidence Act the statement was admissible just as much as it would be if deposed by a person other than a magistrate. This argument was repelled by the Privy Council in these words :- "On the matter of construction ss. 164 and 364 must be looked at and construed, together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute

pp. 968–969

particularity in the sections themselves." Later on their Lordships proceeded thus :- "It is also to be observed that, if the construction contt>nded for by the Crown be correct, all the precautions and safeguards laid down by ss. lti4 and 3o4 would be of such trifling value as to be almost idle. Any magistrate of any rank could depose to a confession made by an accused so loug as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said, or asking for the confession to be vouched by any magistrate. The range of magisterial confessions would be so enlarged by this process that the provisions of s. 164 would almost inevitably be widely disregarded in the same manner as they were di;rcgardcd in the present case.''

pp. 969–970

It appears to me that these considerations which weighed with the Privy Ctiuncil in rejecting the argument that evidence of confession not recorded in accordance with the procedure laid down in the Code of Criminal Procedure could still be admissible, apply with equal force to our present problem. If evidence as regards alcoholic content of the blood is allowed to be given even where the procedure laid down in s. l 29A has not been followed the salutary provisions of that section would "almost inevitably be widely disregarded". That the legislature did not intend this is clear, as I have already pointed out above, from what it laid down in the 8th sub section of s. 129A.

p. 970

For all these reasons, I have come to the conclusion that as admittedly the procedure laid down in s. 129A was not followed for testing of the blood that was taken at 6 a.m., the prosecution cannot get • the benefit of s. 6fl(2) of the Prohibition Act. There is no justification, therefore, for the order made by the Sessions Judge, sending the case back to the Magistrate for re-trial in order to give the prosecution an opportunity of adducing evidence as regards the exammation of the blood taken at ti a.m. on April 3, 19til.

p. 970

I would therefore allow the appeal, set aside , the order of the High Court and also the order of the Sessions .Judge directing re· trial and order that the appellant be acquitted.

p. 970

BY COURT. In accordance with the opinion of the majority the Appeal is dismissed subject to the modifications mentioned in the Judgment.

p. 970

Appeal dismissed.'

p. 970