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PETITIONER: PANDIT UKHA KOLHE

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 11/02/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1963 AIR 1531            1964 SCR  (1) 926  CITATOR INFO :  D          1965 SC1887  (3,5,7 ETC.,)  D          1966 SC 356  (6)  RF         1972 SC1738  (31)

ACT: Criminal  Trial-Offence  under Prohibition  Act-Blood  taken before  start of investigation-Report of Chemical  Examiner- Procedure    prescribed   not   followed-Admissibility    of report-Re-trial, when can be ordered-Bombay Prohibition Act, 1949  (Bom. 25 of 1949) ss. 66, 129A, 129B-Code of  Criminal Procedure, 1898 (Act 5 of 1898), ss. 428, 510.

HEADNOTE: 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 s. 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 s.  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

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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 s. 129 A the result may still be proved  by virtue  of subs. (8) to s. 129 A and there is nothing in  s. 129A  or  s. 129B which precludes proof of that fact  if  it tends  to  establish that the person  had  consumed  illicit liquor.  By enacting ss. 129 A and 129B the law provided one method  of collection of evidence in respect of  an  offence under  s.  66  (2)  but it did  not  thereby  exclude  other methods.  Bombay Act No. 12 of 1959 which introduced ss. 129 A   and  129  B  and  which  had  been  reserved   for   the consideration  of the President and had received his  assent prevailed,  in the State of Bombay, over s. 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 s. 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 s. 510 of the Code. Nazir  Ahmad v. The King Emperor, (1936) L. R. 63 I.A.  372, Taylor v. Taylor,  (1875) 1 Ch.  D. 426, Deep Chand v. State of  Uttar  Pradesh,  [1959]  Supp.  2  S.C.  R.  8  and  Ch. Tikaramji  v. State of Uttar Pradesh, [1956] S. C.  R.  393, 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 s.428 (1) of the Code.     Ramanlal  Rathi  v.  State, A.I.R.  (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  s. 129A was not admissible.  In view of  sub- s.  (8)  of s. 129A the fact that a person has  consumed  an intoxicant  may be proved by evidence other than  that  made available  under s. 129A; but for the determination  of  the percentage of alcohol in the blood no other procedure except that  provided by s. 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  s.  129 A. It was reasonable to infer  that  the legislature  intended the presumption under s. 66 (2) to  be

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drawn  only in cases where tile procedure prescribed  by  S. 129A had been followed.   Nazir Ahmad v. The King Emperor, (1936) L. R. 63 I.  A. 372 relied on.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION:Criminal 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.     R.K. Garg, S. C. Agarwala and M. K. Ramamurthi, for  the appellant.    C. K. Daphtary,Solicitor-General of India, N.  S.  Bindra and R. H. Dhebar, for the respondent.    1963.    February  11.   The  following  judgments   were delivered by SHAH,.J.-On  April  3,  1961 at about  2-30  A.M.,  a  motor vehicle  fell  into a ditch by the side of  a  highway  near Edlabad,  District  Jalgaon, and all the  occupants  of  the vehicle  were  injured.  One Mohmad 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 s. 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

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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 s. 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  3,1961.  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 a.m., 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 0.069 per  931 cent w/v ethyl alcohol.  This concentration being in  excess of  the concentration mentioned in s. 66 (2) of  the  Bombay Prohibition  Act,  a  complaint for the  offence  under  the Bombay   Prohibition  Act  was  also  lodged   against   the appellant. At the trial, on behalf of the prosecution among others were examined  Dr.  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 0.069 per  cent w/v.  He admitted that on April 3, 1961 he was in the  Civil Hospital in the early morning, that when he was told by  Dr. Kulkarni  about  the death of Mohamad Yusuf he  "suffered  a shock".,  that  thereafter  he went  home  immediately,  and during  that  time his"mental condition was not  good".   He further stated :               "I  fell unconscious.  I  was  semi-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."

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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  66(1) 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 s. 2(22) 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 s. 2(24) 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 s. 66(b) is the  contravention of acts prescribed by s.13. That section prohibits,  amongst other acts,  933 consumption  and  use of liquor.  The provisions  of  s.  13 which occur in Chap.  III are subject to a general exception contained  in  s.  11, which provides, in so far  as  it  is material, that :               "Notwithstanding  anything  contained  in  the               following provisions of this Chapter, it shall               be lawful to import, export, transport,  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 v.  F. N. Balsara (1), and it was held inter alia  that  cl. (b)  of s. 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 s. 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 s.   24A    the operation of the prohibition contained in s. 13   and    the other  sections was limited in two respects : (1) by  s.  II where  the  contravention  was in pursuance of  and  in  the

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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 s.  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 (1)[1951] S.C.R. 682. 934 any   licence,  pass,  permit  or  authorisation  under   s. 66(i)(b),  it had to be established that  the  contravention was  not protected either by s. 11 or s. 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 s.  66(1)(b).  That is illustrated by the decision  of  this Court  in  Behram Khurshed Pesikaka v. The State  of  Bombay (1).   It  was  held in that case that  the  effect  of  the declaration  in  The state of Bombay v. F. N.  Balsara  (2), that cl. (b) of s. 13 of the Bombay Prohibition Act is  void under Art. 13(1) of the Constitution in so far as it effects the  consumption  or  use  of  liquid  medicinal  or  toilet preparations  containing alcohol is to render a part  of  s. 13(b) 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 s. 66(b) of  the Bombay Prohibition Act is smelling of alcohol is  compatible with  his  innocence  as well as his  guilt:  the  smell  of alcohol  may  be  due  to the  fact  that  the  accused  had contravened  the enforceable part of s. 13(b) of the  Bombay Prohibition  Act, or it may well be due to the fact that  he had  taken  alcohol which fell under the  unenforceable  and inoperative part of the section.  The onus therefore lies on the  prosecution to prove that the alcohol of which  he  was found smelling came under the category of prohibited alcohol and therefore within the enforceable part of s. 13(b).     The Legislature of the State of Bombay being faced  with this  interpretation  imposing a serious  burden  which  the prosecution  had  to  undertake in trials  for  offences  of consumption  or use of liquor contrary to the provisions  of the Act, for due (1) [1955] 1 S.C.R. 613, (2) [1951] S.C.R. 682.  935 enforcement  of  the  law and to  prevent  evasion,  enacted certain additional provisions by Bombay Act 12 of 1959.   By that  Act, s. 66 was renumbered s. 66(1) and sub-s. (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  0.05               per cent, weight in volume then the burden  of               proving   that  the  liquor  consumed  was   a               medicinal   or  toilet  preparation,   or   an               antiseptic  preparation  or  solution,  or   a               flavouring   extract,   essence   or    syrup,               containing  alcohol, the consumption of  which

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             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-s.  (3) the provisions of sub-s. (2) are  not  to apply to consumption of liquor by indoor patients during the period  they are being treated in 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 0.05  per  cent,  weight  in  volume  in  blood  presumptive evidence  of’ consumption of liquor in contravention of  the provisions  of  the Act and the burden of proving  that  the liquor consumed was a medicinal or toilet 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 s. 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

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purporting  to belong to the establishment of  the  Chemical Examiner  does  not bear the official  designation  of  that person, The report of the Chemical Examiner mentions that  a sealed phial was received from the police officer by  letter No.  C/010  of 1961 dated April 18, 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 s.     66   (1)  (b)  relying   upon   the presumption tinder s. 66 (2).    It  was  assumed by the Trial Magistrate that  the  phial containing  blood collected by Dr. Rote was kept in  a  safe place  and  could not be tampered with that it was  kept  in such  a  place that it was not liable to  deteriorate,  that thereafter  this  phial also remained with the police  at  a place  where  it could not be tampered with,  and  that  the phial  sealed  by  Dr. Rote was  delivered  by  the  special messenger to the establishment of the Chemical Examiner  and that  the same phial was examined by the Chemical  Examiner, and  that between April 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  s.  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 s. 129A, but as the  trial  Magistrate  had relied  merely upon the presumption under s. 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

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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. J.,in Ramanlal Rathi v. The State (1), observed :               "If  at the end of a criminal prosecution  the               evidence  leaves the Court in doubt as to  the               guilt of the accused the latter is entitled to               a.  verdict of not guilty.  A retrial  may  be               ordered  when the original trial has not  been               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) A.I.R. (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  s. 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

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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 s. 428 (1) of  the Code  of Criminal Procedure, and may, having regard  to  the circumstances,  be  permitted  to be  led  in  appeal.   The attention  of  the Magistrate 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 s. 66 (2).  An opportunity to  lead  this evidence may be given under s. 428, not with a view to  fill up  lacunae in the evidence but to regularise the  trial  of the  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 s. 66( 2) of  the Act, in a trial of a person charged with  committing an 942 offence  under  s.  66  (1) (b),  it  must  be  proved  that concentration of alcohol in the blood of the accused  person is  not less than 0.05 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 s.  129B  in respect   of   examination  of  blood   collected   in   the circumstances  and under conditions prescribed by s. 129  A. Counsel  says that the Legislature having enacted a  special provision relating to the procedure by which evidence  about concentration  of  alcohol  in blood  is  to  be  collected, examined  and  placed before the Court, no other  method  of establishing concentration of alcoholic content in the blood of  a person charged with an offence under s. 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 s.  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 s.  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,

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1961,  there is no evidence on which the appellant could  be convicted. it is necessary in considering the validity of this argument to  examine the scheme of ss. 66 (2), 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 s.  66  (1) (b)  of  the Act, s. 66(2) makes proof of  concentration  of alcohol  in  the  blood  of the accused  in  excess  of  the prescribed   quantity  presumptive  evidence  that  he   has consumed,  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 s. 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- s. 66 (1) (b) exceeding  the percentage mentioned in sub-s. (2).               The material part of s. 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   therein,such               Prohibition  Officer  or  Police  Officer  may               produce   such  person  before  a   registered               medical practitioner (authorised by general or               special order by the State Government in  this                             behalf)   for  the  purpose  of  such  medical               examination   or  collection  of  blood,   and               request  such registered medical  practitioner               or  furnish  a  certificate  on  his   finding               whether   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

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             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-s.  (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-s.   (2),   the   registered   medical practitioner  is  obliged  to examine  the  person  produced before  him  and  to  collect  and  forward  in  the  manner prescribed  the blood of such person and to furnish  to  the Officer a certificate in the prescribed form containing  the result  of  his  examination.   But  sub-s.  (8)   expressly provides  that proof of the fact that a person has  consumed an  intoxicant may be secured in a manner otherwise than  as provided in s. 129 A. 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

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for an offence under the Bombay Prohibition Act, take  steps which are prescribed in s. 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 s. 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 s. 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 s. 129 A or  s.  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  v. The King’ Emperor (1),  on  which  strong reliance was placed by counsel for the appellant in  support of  his plea that s. 129 A (1) & (2) and s. 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 ss. 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) L.R. 63, I.A. 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 s. 164 of the Code of Criminal Procedure.   It was  therefore  held  that ss. 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  s.  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 s. 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 be,made 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

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             persons;  to  be by reason of  their  position               freed  from  the disability that  attaches  to               police-officers under s. 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 s. 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 v. 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’  s. 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  s.  129A(1)  & (2),  or  otherwise;  that  is expressly  provided  by s. (8) of s. 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 s. 129A.  But in the present case the  Police Officer investigating the (1)  [1875] 1 Ch.  D. 426.  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 s. 129A(1) & (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

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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) L.R. 63 I.A. 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  s.129B 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  s. 129B makes the certificate under s. 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  s.  126B".  The section however deals with  proof  of facts,  and not presumptions : it enacts a rule Of  evidence similar  to  s.  510  of the  Code  of  Criminal  Procedure. Without  proof  of  the facts stated, the  contents  of  the certificate or report may by s. 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 s. 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  s.  129B,  or otherwise, that gives rise to a presumption under s. 66(2).

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   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  s.  129B.   Clause  (b)  of  s.  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 s. 129A.  The report of  a  registered medical practitioner under cl. (b)  of  s. 129B  may  be  upon a ,’matter or thing" and so  may  be  in respect of blood specimen submitted to him.     On  an analysis of ss. 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 s. 66 (2).  The Legislature has made the certificate of the examination under s. 129A,  sub- ss. (1) and (2) admissible without formal proof, but by sub- s. (8) of s. 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 s. 129B  is  also  made admissible.  On that view of ss. 129A and 129B, there is  no warrant for assuming that it was intended thereby to exclude in  trials for offences under s. 66 (1) (b) of the  Act  the operation of s. 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 s. 510 of the Code of Criminal Procedure are general; but on that  account it  cannot justifiably be assumed that by enacting ss.  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 s. 129B if it  is obtained  in the manner prescribed by s. 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  s. 129A  as  provided  under s. 510 of  the  Code  of  Criminal Procedure.     It  was  urged that by the enactment of s. 129A  and  s. 129B  of the Act, s. 510 of the Code stood repealed  in  its application  to  offences  under s. 66  (1)  of  the  Bombay Prohibition Act, and reliance in this behalf was placed upon Art. 254 (2) of the Constitution.  It is true that power  to legislate on matters  953 relating to Criminal Procedure and evidence falls within the

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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 ss. 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  Art. 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: ss. 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 Art. 254 : Deep Chand v. The, State of Uttar Pradesh  (1) and  Ch.  Tikaramji v. The State Uttar Pradesh (2).  It  is, difficult to regard s. 129B of the Act as so repugnant to s. 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 s.129A: (1) [19591 Supp. 2 S.C.R. 8. (2) [1956] S.C.R. 393. 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  s. 129A  cannot therefore be used as evidence in the case.   To that  extent  S. 510 of the Code is superseded by  s.  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 s. 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 s. 162  of  the  Code  of Criminal  Procedure  inadmissible,  except  to  the   extent permitted  within  the  strict  limits  prescribed  by  that section,  But s. 510 makes provision with regard - to  proof of  documents by production thereof, and the application  of s. 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

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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 s. 162 alone but applies to the body of the Code;  to  hold  otherwise would be to  introduce  a  patent inconsistency between s. 207 A and s. 162 of the Code,  955 for   by  the  former  section  in   committal   proceeding, statements  recorded  under  s. 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 s. 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-s. (1) of s. 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- s. (1) of s. 129A.  To an examination to which s. 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 s. 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 s. 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.

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 DAS GUPTA, J.-I think this appeal should be allowed.   The appellant  was convicted under s. 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 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.    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 -As admissible in law for the purpose of s. 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 s. 66 (2) of the Prohibition Act.    To  understand, the nature of the right conferred on  the prosecution  by  s. 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  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:               (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."

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   As  section 13 is in Chapter III the position in law  is that the prohibition in s. 13 against consumption of  liquor does not apply to any of the substances 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 Mangilal  Aggarual (1), 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 in s. 24-A,  is  on  the prosecution.   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 (1)  [1962] Supp.  1 S.C.R. 15.  959 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  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 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 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  s. 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

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             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.

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             (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 s. 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 s.  129 A-were made by the same amending Act which created this special right in favour  of the prosecution by enacting s. 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

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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 s. 129A  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  legislature’s intention to prescribe such a detailed procedure in s.  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 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 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  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

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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.   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 (2), that doubt is, in my  opinion, completely  set at rest by the 8th sub-section of  s.  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 s.  66     (2) together with s. 129A 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  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  (s. 129A)" it did not leave it open  to  the

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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  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  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 s. 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  v.  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 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    (1)    (1936) L.R.63 I.A. 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 s.  164 and  s.  364  of the Code.  The High Court  held  that  this evidence  was  admissible.  In support of that view  it  was

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urged  before  the  Privy  Council  that  the  evidence  was admissible just because it has nothing to do with 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               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 ss. 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 s. 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  s.  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 s. 129A.     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. 66(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  examination  of the blood taken at 6 a.m. 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.  971

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