minal Appeal No 131 of 1962
Appeal by special leave from the judgment and order dated June 13 1962 of the Bombay High Court in Criminal Revision Application No 402 of 1962
RK Garg section C Agarwala and M K Ramamurthi for the appellant
C K DaphtarySolicitor General of India N section Bindra and R H Dhebar for the respondent
February 11
The following judgments were delivered by SHAH
On April 3 1961 at about 2 30 AM a motor vehicle fell into a ditch by the side of a highway near Edlabad District Jalgaon and all the occupants of the vehicle were injured
One Mohmad Yusuf who was in that vehicle died of the injuries
The appellant was tried before the judicial Magistrate First Class Bhusawal 929 for offences of rash and negligent driving when he was under the influence of liquor and thereby causing the death of Mohmad Yusuf and injuries to four other occupants of the motor vehicle and also for offences under the motor Vehicles Act
The Trial Magistrate held that the evidence was not sufficient to prove that the appellant was driving the motor vehicle at the time of the mishap and acquitted the appellant of the offences under the Motor Vehicles Act and also under the Indian Penal Code
But he held that the evidence established that the appellant had at the material time consumed illicit liquor and had thereby committed an offence punishable under section 66 b of the Bombay Prohibition Act
He accordingly convicted theappellant and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs 500 and in default of payment of fine to suffer rigorous imprisonment for two months
On appeal to the Court of Session the order of conviction was set aside and a retrial was directed because in the view of the Court there had not been a fair and full trial
A revision application filed against the order in the High Court of Bombay was summarily dismissed
The appellant has appealed to this Court with special leave against the order of the High Court
The case for the prosecution in so far as it relates to the charge for the offence under the Bombay Prohibition Act is briefly this Early in the morning of April 3 1961 as a result of motor vehicle Temp
No 170 B M B falling in a ditch near Edlabad several persons including the appellant were injured
At about 6 a m the appellant reached the Civil Hospital jalgaon
On Dr Kulkarni Resident Medical Officer of the Hospital informing him about the death of Mohmad Yusuf the appellant fainted and he was admitted as an indoor patient in the Hospital
On examination the 930 appellant was found smelling of alcohol
Dr Kulkarni thereupon directed one Dr Rote to collect a specimen of blood from the body of the appellant and accordingly some venus blood was collected in a phial
The phial was closed in the presence of Dr Rote and sealed
But before treatment could be given to the appellant he was discharged from the Hospital at the request of some persons who accompanied him
The blood specimen remained in the Hospital
Information about the mishap to the motor vehicle was received by the police at Jalgaon at about 8 a m on that day and a case was registered against the appellant and four other persons for certain offences under the Indian Penal Code and the Motor Vehicles Act and on receiving information that all the incumbents of the motor vehicle were at the time of the mishap in a state of intoxication also under section 66 b of the Bombay Prohibition Act XXV of 1949
The Officer in charge of the investigation sent the appellant to the Civil Hospital for medical examination
The condition of the appellant was found by Dr Kulkarni to be normal
A specimen of the appellant s blood was again collected at about 11 a m and was sent to the Chemical Analyser for examination and report
On April 12 1961 the Sub Inspector in charge of the investigation came to learn that a specimen of blood of the appellant had been taken by the Hospital authorities early in the morning of April 31961
On demand by the police officer the Medical Officer delivered the phial containing the blood specimen together with a certificate from Dr Rote that a blood specimen of the appellant was collected by him at 6 am on April 3 1961
The investigating officer affixed an additional seal on the package and forwarded the same with a special messenger to the Chemical Examiner on April 18 1961
On examination of the contents of the phial it was found that there was concentration of alcohol to the extent of 0069 per 931 cent wv ethyl alcohol
This concentration being in excess of the concentration mentioned in section 66 2 of the Bombay Prohibition Act a complaint for the offence under the Bombay Prohibition Act was also lodged against the appellant
At the trial on behalf of the prosecution among others were examined Dr Kulkarni Dr Rote and the investigating officer
The report of the Chemical Examiner was also tendered in evidence
But the special messenger who carried the sample was not examined nor was any evidence given about the place where and the condition in which the phial containing the blood specimen was kept in the Hospital
The appellant in his statement to the Court denied that concentration of alcohol detected by the Chemical Examiner from the specimen taken by Dr Rote exceeded 0069 per cent wv
He admitted that on April 3 1961 he was in the Civil Hospital in the early morning that when he was told by Dr Kulkarni about the death of Mohamad Yusuf he suffered a shock
 that thereafter he went home immediately and during that time hismental condition was not good
He further stated  I fell unconscious
I was semi conscious
During that time my relations and friends gave me certain liquid as a sort of medicine
I felt like that
Then I was carried to the hospital in the same condition
As I regained my consciousness I told doctor that I want to leave the hospital because my friend was dead in hospital and as I did not feel it proper to live in hospital under such circumstances so I left the hospital
I do not know who gave me medicine when I fell down on the road after I had left the hospital
This was when I left the hospital for my home The defence of the appellant therefore was that when he was informed about the death of Mohamad Yusuf 932 he fainted and some medicinal preparation was administered to him by his friends to revive him and thereafter he was carried to the Civil Hospital
He has not admitted that any specimen of blood from his body was collected but it appears to be his defence that if excessive concentration of alcohol was traced in the blood it was the result of some medicinal preparation administered to him by his friends
Section 661 of the Bombay Prohibition Act in so far as it is material 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 x x x b consumes uses possesses or transports any intoxicant   shall on conviction be punished i for a first offence with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees  Intoxicant  is defined in section 222 as meaning 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 by section 224 liquor includes 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 section 66b is the contravention of acts prescribed by s13
That section prohibits amongst other acts 933 consumption and use of liquor
The provisions of section 13 which occur in Chap
III are subject to a general exception contained in section 11 which provides in so far as it is material that  Notwithstanding anything contained in the following provisions of this Chapter it shall be lawful to import export transport manu facture bottle sell buy possess use or consume any intoxicant in the manner and to the extent provided by the provisions of this Act or any rules regulations or orders made or in accordance with the terms and conditions of a licence permit pass or authorization granted thereunder
 The validity of the provisions of the Act as originally enacted was considered by the Court in The State of Bombay vs F N Balsara 1 and it was held inter alia that cl
b of section 13 in so far as it affected the consumption or use of medicinal and toilet preparations containing alcohol was invalid
The Legislature of the Bombay State thereafter amended the Act by enacting section 24A which provided a general exception in respect of toilet medicinal and antiseptic preparations and flavouring extract  essence or syrup
As a consequence of the amendment made by section 24A the operation of the prohibition contained in section 13 and the other sections was limited in two respects  1 by section II where the contravention was in pursuance of and in the manner and to the extent provided by the provisions of the Act or any rules or regulations or orders made or in accordance with the terms and conditions of a licence permit pass or authorisation granted and 2 in respect of preparations and materials exempted under section 24A
When therefore a person was charged with consuming any intoxicant in contravention of the provisions of the Act or of the rules regulations or orders made or of 11951 SCR 682
934 any licence pass permit or authorisation under section 66ib it had to be established that the contravention was not protected either by section 11 or section 24A
It is clear that direct evidence about the consumption of liquor in contravention of the provisions of the Act when such consumption is prohibited would not ordinarily be forthcoming
Mere evidence that the person charged with consuming or using an intoxicant was in a state of intoxica tion would not be sufficient to bring home the charge under section 661b
That is illustrated by the decision of this Court in Behram Khurshed Pesikaka vs The State of Bombay 1
It was held in that case that the effect of the declaration in The state of Bombay vs F N Balsara 2 that cl
b of section 13 of the Bombay Prohibition Act is void under article 131 of the Constitution in so far as it effects the consumption or use of liquid medicinal or toilet preparations containing alcohol is to render a part of section 13b of the Bombay Prohibition Act inoperative and ineffec tual and thus unenforceable and that the bare circumstance that a citizen accused of an offence under section 66b of the Bombay Prohibition Act is smelling of alcohol is compatible with his innocence as well as his guilt the smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13b of the Bombay Prohibition Act or it may well be due to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section
The onus therefore lies on the prosecution to prove that the alcohol of which he was found smelling came under the category of prohibited alcohol and therefore within the enforceable part of section 13b
The Legislature of the State of Bombay being faced with this interpretation imposing a serious burden which the prosecution had to undertake in trials for offences of consumption or use of liquor contrary to the provisions of the Act for due 1  2  935 enforcement of the law and to prevent evasion enacted certain additional provisions by Bombay Act 12 of 1959
By that Act section 66 was renumbered section 661 and sub section
2 was added thereto in the following form 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 005 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
 By sub section
3 the provisions of sub section
2 are not to apply to consumption of liquor by indoor patients during the period they are being treated in a hospital convalescent home nursinog home or duspensary maintained or supported by Government or a local authority or by charity or by such other persons in such other institutions or in such circumstances as may be prescribed
The result of this amendment was to make except in the cases expressly provided in cl
3 concentration of alcohol in excess of 005 per cent weight in volume in blood presumptive evidence of  consumption of liquor in contravention of the provisions of the Act and the burden of proving that the liquor consumed was a medicinal or toilet preparation or an antiseptic preparation or solution or a 936 flavouring extract essence or syrup lay upon the person charged with the offence
The case of the prosecution in this case rested primarily upon the report of the Chemical Examiner certifying that alcohol concentration in the blood of the appellant which was extracted at 6 a m on April 3 1961 was in excess of the percentage prescribed by section 66 2
The prosecution had therefore to establish that the specimen examined by the Chemical Examiner was the specimen of blood collected from the body of the appellant and that the specimen disclosed concentration of alcohol in excess of the permissible limits
It is somewhat unfortunate that the trial Magistrate did not appreciate that the only important piece of evidence on which the prosecution case against the appellant rested was contained in the report of the Chemical Examiner
There is no dispute that the appellant went to the Civil Hospital early in the morning of April 3 1961
He has admitted that fact in his statement before the Court
Dr Kulkarni has deposed that on being told about the death of Mohamad Yusuf the appellant fainted and was admitted to the Hospital and that he found that the appellant was smelling of alcohol
Dr Kulkarni has stated that no treatment was given to the appellant and there is no suggestion by the appellant that he was given any treatment in the Hospital
Dr Rote was asked by Dr Kulkarni to collect a specimen of blood from the body of the appellant and a blood specimen was accordingly taken and the phial was sealed in his presence by a laboratory servant
Dr Rote stated in cross examination that no methyl spirit was applied before extracting blood
The certificate of Dr Rote dated April 13 1961 that he had collected blood from the body of tile appellant on the morning of April 3 1961 and that the bottle containing the blood was sealed in his presence corroborates the statement
937 But there is no evidence on the record about the person in whose custody this phial remained till it was handed over to the Sub Inspector of police on April 13 1961 when demanded
There is also no evidence about the precautions taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police between April 13 1961 and April 18 1961
Even the special messenger with whom the phial was sent to the Chemical Examiner was not examined  and Ext
43 which was the acknowledgment signed by some person purporting to belong to the establishment of the Chemical Examiner does not bear the official designation of that person The report of the Chemical Examiner mentions that a sealed phial was received from the police officer by letter No C010 of 1961 dated April 18 1961 but there is no evidence that the seat was the one which was affixed by Dr Rote on the phial
These undoubtedly were defects in the prosecution evidence which appear to have occurred on account of insufficient appredation of the character of the burden which the prosecution undertakes in proving a case of an offence tinder section 66 1 b relying upon the presumption tinder section 66 2
It was assumed by the Trial Magistrate that the phial containing blood collected by Dr Rote was kept in a safe place and could not be tampered with that it was kept in such a place that it was not liable to deteriorate that thereafter this phial also remained with the police at a place where it could not be tampered with and that the phial sealed by Dr Rote was delivered by the special messenger to the establishment of the Chemical Examiner and that the same phial was examined by the Chemical Examiner and that between April 3 1961 and April 19 1961 when the contents of the phial were Subjected to chemical examination they had not 938 deteriorated
Both the Prosecutor and counsel for the appellant appear to have contributed to the somewhat slipshod trial of the case
Dr Kulkarni and Dr Rote were examined as witnesses for the prosecution but no examination or cross examination of either was directed in respect of these important matters and even to the investigating officer no questions seeking to elicit information on these matters were asked
The report of the chemical examination of the blood specimen collected at 11 a m on April 3 1961 was also not tendered in evidence by the prosecution though the same was demanded
The Sessions judge pointed out some of these infirmities
He arrived at the conclusion that as the examination of the blood specimen taken at 6 a m on April 3 1961 was not obtained in the course of investigation at the direction of the investigating officer who had reasonable grounds for believing that the appellant had consumed an intoxicant the presumption under section 129B could not come to the aid of the prosecution
The learned judge observed and it was conceded at the Bar before him that the prosecution could still establish that the appellant had consumed liquor otherwise than by a certificate obtained in respect of examination of the blood concentration procured ill the manner provided under cls
1 and 2 of section 129A but as the trial Magistrate had relied merely upon the presumption under section 66 2 and had not analysed the evidence in that light nor had he directed his attention to the question whether the other evidence on the record a part from the presumption established such case the order of the conviction could not be sustained
Observing that there had not been a fair and full trial in respect of the offence under the Bombay Prohibition Act the Sessions judge set aside the order of the trial Magistrate and directed that the case be sent back to the Migistrate and be retried in the 939 light of the observations made by him in the course of the judgment
An order for retrial of a criminal case is made in exceptional cases and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was for reasons over which he had no control prevented from leading or tendering evidence material to the charge and in the interests of justice the appellate Court deems it appropriate having regard to the circumstances of the case that the accused should be put on his trial again
An order of re trial wipes out from the record the earlier proceeding and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons
Harries C Jin Ramanlal Rathi vs The State 1 observed  If at the end of a criminal prosecution the evidence leaves the Court in doubt as to the guilt of the accused the latter is entitled to a verdict of not guilty
A retrial may be ordered when the original trial has not been satisfactory for particular reasons for example if evidence had been wrongly rejected which should have been admitted or admitted when it should have been rejected or the Court had refused to hear certain witness who should have been heard
But retrial cannot be ordered on the ground that the prosecution did not 1 AIR 1951 Cal
305 940 produce the proper evidence and did not know how to prove their case
 In the present case undoubtedly the trial before the Magistrate suffered from irregularities which we have already set out
The evidence such as was led was deficient in important respects but that could not be a sufficient ground for directing a retrial
If the Sessions judge thought that in the interests of justice and for a just and proper decision of the case it was necessary that additional evidence should be brought on the record he should have instead of directing a retrial and reopening the entire proceedings resorted to the procedure prescribed by section 428 i or the Code of Criminal Procedure
There is no doubt that if the ends of justice require the appellate Court should exercise its power under the said section
The observations made by the Sessions judge do clearly suggest that in this case he was of the view that additional evidence was necessary
The examination or both Dr Rote and Dr Kulkarni was perfunctory
What steps were taken by Dr Rote after he collected the blood specimen and sealed the phial to whom he entrusted the phial where it was stored and what steps were taken for preventing interference deterioration or tampering with the same are matters which were never investigated
Neither the prosecutor nor counsel for the defence asked any Question in that behalf and even the trial Magistrate did not take any steps to obtain information in that behalf
The method of storage of the phial when it was in the custody of the police officers and its dealing therewith when it was in the custody of the special messenger have been left in obscurity
But the evidence does disclose that the phial wassealed in the presence of Dr Rote and the report ofthe Chemical Examiner also disclosed that he had opened a phial which was sealed and that the sea was intact with the device Medico Legal 941 Bombay
Evidence regarding the_ dealing With the phial since it was scaled and it was submitted for examination of the Chemical Examiner may appear to be formal but it has still to be led in a criminal case to discharge the burden which lap upon the prosecution
Such evidence would appear to be necessary with in the meaning of section 428 1 of the Code of Criminal Procedure and may having regard to the circumstances be permitted to be led in appeal
The attention of the Magistrate does not appear to have been directed to the question whether the time which elapsed between the collection of blood and its examination had any material bearing on the result of the examination
The Court would normally require some evidence that the concentration of alcohol is not due to deterioration or delay in the examination of the contents of the phial or to exposure to weather conditions before raising the presumption under section 66 2
An opportunity to lead this evidence may be given under section 428 not with a view to fill up lacunae in the evidence but to regularise the trial of the accused and to ensure that the case is established against him beyond reasonable doubt more so when for the purpose of  convicting the accused reliance is sought to be placed upon a presumption arising from the report of a Chemical Examiner who is not examined before the Court and which substantially raises a presumption of guilt
In this connection the circumstance that the regularity of the process for extraction of blood and the subsequent dealing of the blood phial was not challenged by the appellant in the trial court is material
But counsel for the appellant contends that the report of the Chemical Examiner on which alone substantially the case of the prosecution rests is inadmissible in evidence
He submits that in order to raise a presumption under section 66 2 of the Act in a trial of a person charged with committing an 942 offence under section 66 1 b it must be proved that concentration of alcohol in the blood of the accused person is not less than 005 per cent weight in volume and that can only be proved by the report of the Chemical Examiner or the Medical Officer in the manner provided by section 129B in respect of examination of blood collected in the circumstances and under conditions prescribed by section 129 A Counsel says that the Legislature having enacted a special provision relating to the procedure by which evidence about concentration of alcohol in blood is to be collected examined and placed before the Court no other method of establishing concentration of alcoholic content in the blood of a person charged with an offence under section 66 1 b is permissible and that even though a concession was made before the Court of Session by counsel appearing for the appellant evidence aliunde the report under section 129B was inadmissible
Starting on this hypothesis counsel submits that the report of the Chemical Examiner in respect of blood collected not in the manner and in the conditions set out in section 129 A cls
1 and 2 cannot be used as evidence for raising a presumption against the appellant and beyond the bare circumstance that Dr Kulkarni noticed that the appellant was smelling of liquor at 6 a m on April 3 1961 there is no evidence on which the appellant could be convicted
it is necessary in considering the validity of this argument to examine the scheme of sections 66 2 129A and 129 B which were added by Act
12 of 1959
In a trial of an accused person for an offence of consuming liquor under section 66 1 b of the Act section 662 makes proof of concentration of alcohol in the blood of the accused in excess of the prescribed quantity presumptive evidence that he has consumed in contravention of the provisions of the Act or the rules regulations or orders made thereunder liquor 943 which is not excepted from the prohibitions in Ch
III and the burden lies upon the accused to prove that liquor consumed by him was a medicinal toilet or antiseptic preparation or a solution or flavouring extract essence or syrup containing alcohol
Subsection 2 of section 66 provides for raising a presumption upon proof of concentration of alcohol in blood it does not prescribe the manner or method of proving concentration of alcohol in blood of the person charged with the offence under section 66 1 b exceeding the percentage mentioned in sub section
The material part of section 129A is  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 medi cally examined or that his blood be collected for being tested for determiningthe percentage of alcohol thereinsuch 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 such person has consumed any intoxicant and to forward the blood collected by him for test to the Chemical Examiner or Assistant Chemical Examiner to Government or to such other Officer as the State Government may appointing this behalf
944 2 The registered medical  practitioner before whom such person has been produced shall examine 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 Government or other Officer appointed under sub section 1 shall certify the result of the test of the blood forwarded to him stating therein 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 practitioner under sub section 1 or on his production before such practitioner to the examination 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
4 x x x x 5 Resistance to production before a registered medical practitioner as aforesaid or to the examination of the body under this section or to the collection of blood as aforesaid shall be deemed to be an offence under section 186 of the Indian Penal Code
6 x x x 7 x x x 8 Nothing in this section shall preclude the fact that the person accused of an offence 945 has consumed in intoxicant from being proved otherwise than in accordance with the provi sions of this section
 The section is intended primarily to provide for compelling a person 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 collection of blood
Before a person can be compelled to submit himself to examination two conditions have to be fulfilled
It must be in the course of investigation of an offence under the Act and that a Prohibition Officer duly empowered in that behalf by the State Government or Police Officer has reasonable ground for believing that a person has consumed liquor and that for the purpose of establishing that such a person has consumed an intoxicant or for procuring evidence thereof it is necessary that his body be medically examined or his blood be collected
It is only when these conditions exist that a person can be sent or produced before a registered medical practitioner for purposes of medical examination or collection of blood
By sub section
5 resistance to production before a registered medical practitioner or to the examination of his body or collection of blood is made unlawful
By sub section
2 the registered medical practitioner is obliged to examine the person produced before him and to collect and forward in the manner prescribed the blood of such person and to furnish to the Officer a certificate in the prescribed form containing the result of his examination
But sub section
8 expressly provides that proof of the fact that a person has consumed an intoxicant may be secured in a manner otherwise than as provided in section 129 A
Therefore production for examination of a person before a registered medical practitioner during the course of investigation by a competent officer who has reason
able ground for believing that the person has 946 consumed an intoxicant and for establishing that fact examination is necessary is not the only method by which consumption of an intoxicant may be proved
An investigating officer or a Prohibition officer empowered by the State Government must if he desires to have a person examined or his blood taken in the course of investigation for an offence under the Bombay Prohibition Act take steps which are prescribed in section 129 A and the certificate of the registered medical practitioner and the report of the Chemical Examiner made on the result of the test of the blood forwarded to him are by section 129 B made admissible as evidence in any proceeding under the Act without examining either the registered medical practitioner or the Chemical Examiner
But if examination of a person or collection of blood from the body of a person is made otherwise than in the conditions set out in section 129 A the result of the exa mination or of the blood may if it is relevant to a charge for an offence under the Act be proved by virtue of cl
8 and there is nothing in section 129 A or section 129 B which precludes proof of that fact if it tends to establish that the person whose blood was taken or was examined had consumed illicit liquor
Nazir Ahmed vs The King  Emperor 1 on which strong reliance was placed by counsel for the appellant in support of his plea that section 129 A 1  2 and section 129 B prescribe the only method of proving concentration of alcohol in blood is of little assistance in this case
In that case the judicial Committee held that sections 164 and 364 of the Code of Criminal Procedure prescribed the mode in which confessions are to be recorded by Magistrates when made during investigation and a confession before a Magistrate not recorded in the manner provided was inadmissible
In so holding the judicial Committee relied upon the rule that where 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 1 1936 LR 63 IA 372
947 methods of performance or not at all and that the rule was applicable to a Magistrate who was a judicial officer acting under section 164 of the Code of Criminal Procedure
It was therefore held that sections 164 and 364 of the Code of Criminal Procedure conferred powers on Magistrates and delimited them and these powers could not be enlarged in disregard of the provisions of section 164
The judicial Committee observed   As a matter of good sense the position of accused persons and the position of the magis tracy are both to be considered
An exami nation of The Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records
Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath
So with regard to the magistracy it is for obvious reasons most desirable that magistrates and judges should be in the position of witnesses in so far as it can be avoided
Sometimes it cannot be avoided as under section 533 but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the Legislature designed that it should bemade available in that form and no other
In their Lordships view it would be particularly unfortunate if magistrates were asked at all generally to act rather as police officers than as judicial persons to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code and to be at the same time freed notwit hstanding their position as magistrates from any obli gation to make records under section 164
In the 948 result they would indeed be regulated to the position of ordinary citizens as witness and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever
Their Lordships are however clearly of opinion that this unfortunate position cannot in future arise because in their opinion the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation and to render inadmissible any attempt to deal with them in the method proposed in the present case
 The rule in Taylor vs Taylor 1 on which the Judicial Committee relied has in our judgment no Application to this case
Section 66 2 as we have already observed does not prescribe any particular method of proof of concentration of alcohol in the blood of a person charged with consumption or use of an intoxicant
Section 129 A is enacted primarily with the object of providing when the conditions prescribed are fulfilled that a person shall submit himself
to be produced before a registered medical practitioner for examination and for collection of blood
Undoubtedly  section 129 A 1 confers power upon a Police or a Prohibition Officer in the conditions set out to compel a person suspected by him of having consumed  illicit liquor to be produced for examination and for collection of blood before a registered medical practitioner
But proof of concentration of alcohol may be obtained in the manner described in section 129A1  2 or otherwise that is expressly provided by section 8 of section 129A
The power of a Police Officer to secure examination of a person suspected of having consumed an intoxicant in the course of investigation for an offence under the Act is undoubtedly restricted by section 129A
But in the present case the Police Officer investigating the 1 949 offence had not produced the accused before a medical officer  it was in the course of his examination that Dr Kulkarni before any investigation was commenced came to suspect that the appellant had consumed liquor and he directed that specimen of blood of the appellant be collected
This step may have been taken for deciding upon the line of treatment but certainly not for collecting evidence to be used against the appellant in any possible trial for a charge of an offence of consuming liquor contrary to the provisions of the Act
If unlawful consump tion of an intoxicant by a person accused may be proved otherwise than by a report obtained in the conditions mentioned in section 129A1  2 there would be no reason to suppose that other evidence about excessive concentration of alcohol probative of consumption is inadmissible
Admissibility of evidence about concentration of alcohol in blood does not depend upon the exercise of any power of the police or Prohibition Officer
Considerations which were present in Nazir Ahmad s case 1 regarding 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 also do not arise in the present case
Section 129B reads as follows 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 1 1936 LR 63 IA 372
950 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 case may be report Section 129B cl a makes a certificate by a registered medical practitioner or the Chemical Examiner admissible as evidence of the facts stated therein
Clause b of s129B makes another class of documents admissible as evidence of facts therein
These are reports of certain classes of registered medical practitioners in respect of persons examined by them or upon any matter or thing duly submitted for examination or analysis and report
Therefore cl
a of section 129B makes the certificate under section 129A admissible cl
b makes reports of registered medical practioners in respect of persons matters or things submitted to them admissible
Section 129B is an enactment dealing with a special mode of proof of facts stated in the certificates and reports mentioned therein  it has no other effect or operation
The Sessions judge in more places than One has in the course of his judgment referred to the presumption under section 126B
The section however deals with proof of facts and not presumptions  it enacts a rule Of evidence similar to section 510 of the Code of Criminal Procedure
Without proof of the facts stated the contents of the certificate or report may by section 129B be proved by tendering the document
If the document is tendered it is admissible as evidence of the 951 contents thereof
The certificate or the report proved in the mariner provided by section 129B raises no presumption about consumption of liquor in contravention Of the provisions of the Act it is proof by evidence of concentration of alcohol in excess of the prescribed percentage whether it is the manner provided by cl
a or cl
b of section 129B or otherwise that gives rise to a presumption under section 662
Section 129A contemplates two classes of certificates certificate of the result of the examination by a registered medical practitioner whether the person sent to him has consumed any intoxicant and the certificate of the Chemical Examiner of the examination of blood collected by a registered medical practitioner and sent to him for examination
These are made admissible by virtue of cl
a of section 129B Clause b of section 129B deals with the admissibility of reports in respect of examination of persons or of matters or things submitted to the registered medical practitioners for examination or analysis and report
These are undoubtedly different from the certificates of examinations made under section 129A The report of a registered medical practitioner under cl
b of section 129B may be upon a  matter or thing and so may be in respect of blood specimen submitted to him
On an analysis of sections 129A and 129B it is clear that the Legislature has provided in the first instance for compelling persons suspected of consuming intoxicants to be produced and to submit themselves for examination and extraction of blood which under the law as it stood could not be secured but thereby the law did not provide for only one method of proving that a person had consumed illicit liquor within the meaning of section 66 2
The Legislature has made the certificate of the examination under section 129A sub sections 1 and 2 admissible without formal proof but by sub section 8 of section 129A 952 the adoption of any other method of collection of evidence for proving that a person accused has consumed an intoxicant is not precluded and a report of any registered medical practitioner which tends to establish that fact in respect of matters specified in cl
b of section 129B is also made admissible
On that view of sections 129A and 129B there is no warrant for assuming that it was intended thereby to exclude in trials for offences under section 66 1 b of the Act the operation of section 510 of the Code of Criminal Procedure
The Code makes a document purporting to be a report under the hand of a Chemical Examiner and certain other documents upon any matter or thing duly submitted to him for examination or analysis and report admissible in any enquiry trial or other proceeding under the Code
The terms of section 510 of the Code of Criminal Procedure are general but on that account it cannot justifiably be assumed that by enacting sections 129A and 129B the Legislature intended that the certificate of a competent officer in respect of matters not governed thereby shall become inadmissible
It is open to the prosecution to rely in corroboration of a charge of consumption of illicit liquor upon a certificate under cl
a of section 129B if it is obtained in the manner prescribed by section 129A and also to rely upon the report of a registered medical practitioner in respect of any person examined by him or upon any matter or thing duly submitted to him for examination or analysis and report
It is also open to the prosecution to rely upon the report of the Chemical Examiner in cases not covered by section 129A as provided under section 510 of the Code of Criminal Procedure
It was urged that by the enactment of section 129A and section 129B of the Act section 510 of the Code stood repealed in its application to offences under section 66 1 of the Bombay Prohibition Act and reliance in this behalf was placed upon article 254 2 of the Constitution
It is true that power to legislate on matters 953 relating to Criminal Procedure and evidence falls within the Third List of the Seventh Schedule to the Constitution and the Union Parliament and the State Legislature have concurrent authority in respect of these matters
The expression  criminal procedure in the legislative entry includes investigation of offences and sections 129A and 129B must be regarded as enacted in exercise of the power conferred by Entries 2 and 12 in the Third List
The Code of Criminal Procedure was a law in force
immediately before the commencement of the Constitution and by virtue of article 254 2 legislation by a State Legislature with respect to any of the matters enumerated in the Third List repugnant to an earlier law made by Parliament or an existing law with respect to that matter if it has been reserved for the consideration of the President and has received his assent prevails in the State
Bombay Act No 12 of 1959 was reserved for the consideration of the President and had received his assent sections 129A and 129B will prevail in the State of Bombay to the extent of inconsistency with the Code but no more
That they so prevail only to the extent of the repugnancy alone and no more is clear from the words of article 254  Deep Chand vs The State of Uttar Pradesh 1 and Ch
Tikaramji vs The State Uttar Pradesh 2
It is difficult to regard section 129B of the Act as so repugnant to section 510 of the Code as to make the latter provision wholly inapplicable to trials for offences under the Bombay Prohibition Act
Section 510 is a general provision dealing with proof of reports of the Chemical Examiner in respect of matters or things duly submitted to him for examination or analysis and report
Section 129B deals with a special class of reports and certificates
In the investigation of an offence under the Bombay Prohibition Act examination of a person suspected by a Police Officer or Prohibition Officer of having consumed an intoxicant or of his blood may be carried out only in the manner prescribed by s129A 1 19591 Supp 2 SCR 8
2  954 and the evidence to prove the facts disclosed thereby will be the certificate or the examination viva voce of the registered Medical Practitioner or the Chemical Examiner for examination in the course of an investigation of an offence under the Act of the person so suspected or of his blood has by the clearest implication of the law to be carried out in the manner laid down or not at all
Report of the Chemical Examiner in respect of blood collected in the course of investigation of an offence under the Bombay Prohibition Act otherwise than in the manner set out in section 129A cannot therefore be used as evidence in the case
To that extent section 510 of the Code is superseded by section 129B
But the report of the Chemical Examiner relating to the examination of blood of an accused person collected at a time when no investigation was pending or at the instance not of a Police Officer or a Prohibition Officer remains admissible under section 510 of the Code
It was urged before the Court of Session that the report of the Chemical Examiner was submitted by that officer not to the Court or to the medical officer but to the police officer and it was by virtue of section 162 of the Code of Criminal Procedure inadmissible except to the extent permitted within the strict limits prescribed by that section But section 510 makes provision with regard to proof of documents by production thereof and the application of section 162 1 is expressly made subject to what is provided in the Code of Criminal Procedure
Exclusion from evidence of any part of a statement made to a police officer or a record from being used for any purpose at any enquiry or trial in respect of an offence under investigation at the time when such statement was made is save as hereinafter provided
The word hereinafter is in our judgment not restricted in its operation to section 162 alone but applies to the body of the Code to hold otherwise would be to introduce a patent inconsistency between section 207 A and section 162 of the Code 955 for by the former section in committal proceeding statements recorded under section 162 are to be regarded as evidence
The contention raised that the report made to the police officer by the Chemical Examiner was inadmissible in evidence was rightly rejected
Finally it was urged that the blood specimen was not submitted in the manner prescribed by rules framed under the Bombay Prohibition Act and therefore it could not be regarded as duly submitted
 The Government of Bombay has by notification dated April 1 1959 framed rules under cl
w of section 143 of the Bombay Prohibition Act called the Bombay Prohibition Medical Examination and Blood Test Rules
Rule 3 deals with the examination of a person by a registered medical practitioner before whom he is produced under sub section
1 of section 129A Rule 4 provides for the manner of collection and forwarding of blood specimen and r 5 deals with certificates of tests of sample blood
All these rules deal with medical examination of a person who is produced before a registered medical practitioner under sub section 1 of section 129A To an examination to which section 129A does not apply the rules would have no application
The law not having prescribed a particular method of submitting specimen of blood collected from an accused person when blood has been collected before any investigation has started it is unnecessary to consider the argument whether the expression duly submitted used in section 510 of the Code of Criminal Procedure means merely in the manner prescribed by rules in that behalf or as pointed out by the learned Sessions judge submitted after taking adequate precautions for ensuring its safety and for securing against tampering
In the present case the blood specimen was collected by Dr Rote and thereafter it was handed over to the police officer on demand by him and ultimately submitted to the Chemical Examiner for his examination it would  in our judgment be regarded as duly submitted
 956 We are unable to accept the contention of counsel for the appellant that the appellant should on the view taken by the Sessions judge
be acquitted but for reasons already stated we are also unable to agree with the learned judge that the appellant should be retried before the trial Court
We accordingly set aside the order passed by the Trial Magistrate and direct that the Sessions judge do hear the appeal and dispose of it according to law after giving an opportunity to the prosecution to lead evidence on the matters which are indicated in the course of this judgment the additional evidence may be taken by the Sessions judge himself or may be ordered to be recorded in the Trial Court
The accused shall be examined under section 342 of the case of Criminal Procedure and be given an opportunity to lead evidence in rebuttal if he so desires
The Sessions judge may require the presence of the Chemical Examiner for examination before him or before the Magistrate if he thinks that examination viva voce of the Chemical Examiner is necessary to do complete justice in the case
Subject to the above modification the appeal is dismissed
DAS GUPTA J
I think this appeal should be allowed
The appellant was convicted under section 66 1 b of the Bombay Prohibition Act 1949 on the charge of having consumed an intoxicant against the provisions of the Prohibition Act and was sentenced to pay a fine of Rs 500 or in default to suffer rigorious imprisonment for two months
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 957 re trial so that the prosecution might have an opportunity of adducing evidence to connect the report of the chemical examination which was produced at the trial with the blood of the accused person 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 prosecution would get the benefit of section 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
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 section 129 A of the Prohibition Act no evidence as regards the contents of that blood As admissible in law for the purpose of section 66 2 of the Prohibition Act
It is necessary to consider this contention carefully as it is not disputed that the prosecution must fail unless it can get the benefit of section 66 2 of the Prohibition Act
To understand the nature of the right conferred on the prosecution by section 66 2 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 substance
 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 958 be liquor for the purpose of this Act
It is important to mention also section 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 1 Any toilet preparation containing alcohol which is unfit for us as intoxicant liquor 2 Any medicinal preparation containing alcohol which is unfit for use as an intoxicating liquor 3 Any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor 4 Any flavouring extract essence or syrup containing alcohol which is unfit for use as intoxicating liquor
 As section 13 is in Chapter III the position in law is that the prohibition in section 13 against consumption of liquor does not apply to any of the substances mentioned in section 24 A
It is necessary to mention also that it has been held by this Court in State of Bombay now Gujarat vs Narandas Mangilal Aggarual 1 that the burden of proving that the substances in respect of which the prohibition in section 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 in section 24 A is on the prosecution
It is clear therefore that a prosecution for an offence under section 661 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 1 1962 Supp 1 SCR 15 959 within any of the substances mentioned in section 24A
In other words before a person can be convicted under section 661b of the Prohibition Act for consumption 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 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 662 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 005 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 prosecution proves such concentration of alcohol in the blood of the accused person the accuse will be liable to conviction until and unless the accused 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 liquor
 If there had been no special provision in the Act as to how this concentration of alcohol in the blood 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 960 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 section 129A of the Act
That section runs thus  Section 129A 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 reason
able 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 Assistant Chemical Examiner to Government or to such other officer as the State Government may appoint in this behalf
2 The registered medical practitioner be
fore whom such person has been produced shall examine such person and collect and forward in the manner prescribed the blood of such person and furnish to the officer by whom such person 961 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 Government or other officer appointed under sub section 1 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 examination 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
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 of blood of such female shall be carried out or made with strict regard to decency
5 Resistance to production before a registered medical practitioner as aforesaid or to the examination of the body under this section or to the collection of blood as aforesaid shall be deemed to be an offence under section 186 of the Indian Penal Code
6 Any expenditure incurred for the purpose of enforcing the provision of this section including any fees payable to a 962 registered medical practitioner or the officer appointed under sub section 1 be defrayed out of the money provided by the State Legislature
7 If any Prohibition Officer or Police Officer vexatiously and unreasonably proceeds under sub section 1 he shall on conviction be punished with fine which may extend to five hundred rupees
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
On behalf of the appellant it is contended that no evidence as regards the concentration of alcohol in the blood can be given by the prosecution unless the blood has been collected and forwarded and thereafter examined in accordance with the procedure laid down in section 129 A
In my opinion this contention should succeed
It has to be noticed in the first place that the very detailed provisions made in this section section 129 A were made by the same amending Act which created this special right in favour of the prosecution by enacting section 66 2
It does not in my opinion
stand to reason to say that even when making such detailed procedure the legislature contemplated that those in charge of the prosecution might choose not to follow the procedure at all
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 intoxicant 963 by him and the other is the collection of his blood for being tested for determining the percentage of alcohol therein
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 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 resistance
The fourth sub section 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 sub section 1
The eighth sub section which is the last in the section and deserves special consideration will be separately dealt with
964 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 mode 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 being any indication to the contrary all the indications are in may opinion in favour of the view that the prescribed mode in section 129A was intended by the legislature to be the only mode in which the right given to the prosecution by section 66 2 can be exercised
What was the reason behind the legislature s intention to prescribe such a detailed procedure in section 129A 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 registered medical practitioner before whom a person is first produced by entrusting to him only the duty of examining the body of the person and if so requested of collecting his blood for being tested for determining the percentage of alcohol  and the Chemical Examiner or the Assistant Chemical Examiner or any other officer appointed by the State Government in this behalf by entrusting to them only the duty of testing the blood It appears reasonable to think that the real reason behind all this detailed provision was the legislature s anxiety to ensure that the very special right created by section 66 2 in favour of the prosecution for the proof of alcoholic content of the blood shifting the onus on the accused should not be 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 Officer vexatiously and unreasonably proceeds under sub section 1 he shall on conviction be punished with fine which may extend to five hundred 965 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 manner
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 section 66 2 would be to fly in the face of the clear indication in section 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 section 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
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 section 66 2 that doubt is in my opinion completely set at rest by the 8th sub section of section 129A This 966 sub section as already set out says 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
 It is important to note at once that the legislature did not in this sub section say that 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
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 he has consumed an intoxicant and the other as regards the testing of his blood for determining the percentage of alcohol therein
As regards the first of these purposes the 8th sub section 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 expressio unius exclusio alterius 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
967 It appears clear to me on a consideration of section 66 2 together with section 129A that having conferred on the prosecution the benefit in section 66 2 that if the alcoholic percentage of an accused person s blood is proved to be not less than 005 the accused would be presumed to be guilty of an offence under section 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 129A
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 section 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
 In coming to this conclusion I have not overlooked the fact that section 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 section 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 section 129A
The argument is that this can only refer to the examination of blood for ascertaining its alcoholic 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
It is worth noticing that nothing is said in this clause as to how the  submission of the thing 968 has to be proved
One can understand the submission of things like say some vomit by an accused person being seized by an investigating officer and submitting it to a registered  medical practitioner for examination or analysis 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 fact stated therein
Or the construction suggested by the respondent that thing in cl
b of section 129B can only mean blood of the accused person we shall have the curious position that while the registered medical practitioner who examined the blood need not come into the witness box 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
A question somewhat similar to the one now before us fell to be decided by the Privy Council in Nazir Ahmad vs The King Emperor 1
That question arose in connection with the procedure laid down in the Code of Criminal Procedure for the record of confessions by magistrates
While section 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 section 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 1 1936 LR63 IA 372
969 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 by section 164 and section 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 with section 164 or with any record and that by virtue of sections 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 sections 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 particularity in the sections themselves
 Later on their Lordships proceeded thus  It is also to be observed that if the construction contended for by the Crown be correct all the precautions and safeguards laid down by sections 164 and 364 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 long 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 section 164 would almost 970 inevitably be widely disregarded in the same manner as they were disregarded in tile present case
 It appears to me that these considerations which weighed with the Privy Council 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 section 129A 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 section 129A
For all these reasons I have come to the conclusion that as admittedly the procedure laid down in section 129A was not followed for testing of the blood that was taken at 6 am the prosecution cannot get the benefit of section 662 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 examination of the blood taken at 6 am on April 3 1961
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
By COURT
In accordance with the opinion of the majority the Appeal is dismissed subject to the modifications mentioned in the judgment
Appeal dismissed


Summary:
On account of injuries received in a motor accident the appellant was taken to the hospital at 6 A M on April 3 1961
As he was found smelling of alcohol a specimen of his blood was taken and collected in a phial
Subsequently when investigation started this phial was taken by the In vestigation Officer on April 13 and sent to the Chemical Examiner on April 18
On examination it was found to have a concentration of alcohol in excess of that mentioned in section 66 2 of Bombay Prohibition Act
The trial Court convicted the appellant relying upon the presumption arising on the report of the Chemical Examiner
On appeal the Sessions judge found that no evidence had been produced regarding the safe custody of the phial from April 3 to April 18 regard ing its storage at a place where it was not liable to deteriorate and regarding its delivery to the Chemical Examiner and ordered a retrial
This order was upheld by the High Court
The appellant contended i that the report of the Chemical Examiner was not admissible in evidence at the trial of the appellant for an offence under the Bombay Prohibition Act as the blood had not been collected in the manner prescribed by section 129 A and ii that the order for a fresh trial was illegal
Held per Sinha C J Gajendragadkar Wanchoo and Shah jj Das Gupta J contra that the report of the Chemical Examiner was admissible in evidence
Section 129A was intended primarily for compelling a person to submit himself for medical examination and for collection of blood this power could be exercised only in the course of investigation of an offence under the Act and only when a 927 Prohibition Officer or a Police Officer had reasonable ground for believing that a person bad consumed liquor
If the examination of blood is made otherwise than in accordance with section 129 A the result may still be proved by virtue of subs
8 to section 129 A and there is nothing in section 129A or section 129B which precludes proof of that fact if it tends to establish that the person had consumed illicit liquor
By enacting sections 129 A and 129B the law provided one method of collection of evidence in respect of an offence under section 66 2 but it did not thereby exclude other methods
Bombay Act No 12 of 1959 which introduced sections 129 A and 129 B and which had been reserved for the consideration of the President and had received his assent prevailed in the State of Bombay over section 510 of the Code of Criminal Procedure to the extent of inconsistency between the two
Accordingly the report of a Chemical Examiner in respect of blood collected in the course of investigation of an offence under the Act otherwise than in the manner set out in section 129A cannot be used in evidence but a report in respect of blood collected at a time when no investigation was pending or at the instance of a Police Officer or a Prohibition Officer is admissible under section 510 of the Code
Nazir Ahmad vs The King Emperor 1936 L R 63 IA 372 Taylor vs Taylor  Deep Chand vs State of Uttar Pradesh 1959 Supp
2 SC R 8 and Ch
Tikaramji vs State of Uttar Pradesh   referred to
Held further that the order for retrial was bad and that the Sessions judge should himself take additional evidence in respect of the safe custody etc
of the phial of blood
An order for retrial of a criminal case is made only in exceptional cases as it pose  the accused to another trial affording the prosecution an opportunity to rectify infirmities disclosed at the earlier trial
An order for retrial is not made unless the appellate court is satisfied that the trial court had no jurisdiction to try the case or that the trial was vitiated by serious illegalities or irregularities or on account of the misconception of the nature of the proceedings there has been no real trial or that any of the parties had for reasons over which it had no control been prevented from producing material evidence
Since the Sessions judge was of the view that additional evidence was necessary he should have proceeded under s428 1 of the Code
Ramanlal Rathi vs State AIR 1931 Cal 305 referred to
928 Per Das Gupta J
The report of the Chemical Examiner in respect of blood taken not in accordance with the provisions of section 129A was not admissible
In view of sub section 8 of section 129A the fact that a person has consumed an intoxicant may be proved by evidence other than that made available under section 129A but for the determination of the percentage of alcohol in the blood no other procedure except that provided by section 129 A was permisible
Section 66 2 which provided for the drawing of a presumption in favour of the prosecution if the percentage of alcohol found in the blood of an accused exceeded that mentioned in the section was introduced in the Act by the very Amending Act which introduced section 129 A
It was reasonable to infer that the legislature intended the presumption under section 66 2 to be drawn only in cases where tile procedure prescribed by section 129A had been followed
Nazir Ahmad vs The King Emperor 1936 L R 63 I A 372 relied on