Prohibition Judgment

BOMBAY PROHIBITION ACT JUDGMENTS
USEFUL JUDGMENTS
ON
BOMBAY PROHIBITION
ACT
WITH
BLOOD TEST RULES
BY A P RANDHIR
A P RANDHIR Page 1
(1) 1962 G.L.R. 1 (FB) State v. Ukai Devaji
The expression "is found drunk" in Section 85 (1) clause (3) of the
Bombay Prohibition Act, 1949 measn is found overcome or
intoxicated by liquor or any intoxicating drug. Reading the Section 85
as a Whole, it seems that the object or the legislature in using the
words "is found drunk" was to describe the condition of a person who
was overcome or intoxicated by liquor or an intoxicating drug.
When he is so overcome to intoxicated that he is incapable of
taking care of himself he would also be committing an offence under
clause (1). When he is so overcome intoxicated as to behave n a
disorderly manner he would also be committing an offence under
clause (2). Even if he is capable of taking care of himself and does not
behave in a disorderly manner he would be covered by clause (3) if he
is overcome or intoxicated by liquor or an intoxicating drug. Clause
(3) is wide enough to cover the case of a person who is overcome or
intoxicated by liquor or an intoxicating drug whether he is capable
of taking care of himself or not and whether he behaves in disorderly
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manner or not.
(2) 1977 G.L.R 360(SC) Jethabhai Chatur v. State
Even if a person is found at a drinking party and he had a glass
with him liquor in it at the time when the raid is carried out would it
not be correct to say that he was at the relevant time in possession of
liquor? The liquor in his glass would not be correct to say that merely
because a participant in a drinking party can stretch his hand and
take liquor for his use and consumption , he can be held to be in
possession of liquor by stretching his hand and taking it but whether
he is actually in possession of it. Possession again must de
distinguished from custody and it must be conscious possession. It
cannot therefore be laid down as an absolute proposition that
whoever is present at a drinking party must necessarily be guilty of
the offence of possession of liquor and must be charged for such
offence. Whether an accused is in possession of liquor or not must
depend on the facts and circumstances of each case.
(3) 1982 (I) G.L.R. 508 State vs Walter Paul Master
The requirement of rule 4 of the Bombay prohibition (Medical
Examination and Blood Test) Rules, 1959, is that there should be an
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official seal or monogram of the registered medical practitioner So
far as the word "seal" is concerned, it requires to be the "official seal"
of the registered medical practitioner, and if the official seal is not
there, then there should be a monogram of the registered medical
practitioner used, which would be the personal monogram of the
medical officer concerned.
The provision of having a seal mentioned in Form 'B' is necessary in
order to safeguard the interest of the person whose blood is collected
and also to assure the authenticity by comparing the two seals.
Intention of the rule is that the seal affixed on the phial must be
identical to the seal mentioned by the medical officer in Form 'B'
wherein facsimile of the seal is required to be mentioned, If both
tally, the chemical analyzer can be confident about the authenticity
of the sample sent for analysis. so, If from the seal of the medical
officer it can be said that, the seal on the bottle and the seal which
he had a affixed on form 'B'. are the same, then the requirement of
rule 4 can certainly be said to have been compiled with, because it is
a safeguard to vouchsafe the authenticity of the blood sent. In order
to have a safeguard rule 4 provides that either an medical seal be
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used by the registered medical practitioner, or if there is no official
seal, then he shall have to use this monogram.
(4) 1983 (I) G.L.R. 364 Sureshbhai K. Desai Vs State of Gujarat
While under section 473 of the criminal procedure code, what is
required for the court to take cognizance of an offence after the expiry
of the period of limitation is, that it should be satisfied on the facts
and in the circumstances of the case that the delay has been properly
explained . So the satisfaction whether delay is properly explained or
not is to be found out from the record and argument advanced. So far
as extension of the period of limitation under section 473 of the code
is concerned , it is not necessary to give application the grounds in
advance so that the accused should prepare his defence, but there
should be facts and circumstances on which the court is satisfied to
Condon the delay before excising the provision of the section 473 of
the code.
It is necessary for the prosecution , before filling the charge sheet
under section 66(1)(b) of the Prohibition Act to get the report of the
chemical analyzer satisfy itself about the contents of alcohol in blood
and then submit the charge sheet. This may or may not be necessary.
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However, it can not be said to be in anyway wrong on the part of the
prosecuting agency if it was wait for the report of the chemical
analyzer before filling the charge sheet.
At the time the magistrate takes cognizance of the offence the
accused can not be heard nor can he raise any grievance of his not
being given an opportunity of being heard at that time. After the
process is issued and the accused appears before the Magistrate, it is
open to him to raise the question regarding the bar of limitation and
it is for the Magistrate to consider at the proper stage of the
proceeding whether the accused can avail of the bar limitation as
imposed upon the Court.
(5) 1984 (2) G.L.R 964 Jethalal Girdharlal V. State of Gujarat
The very language of the proviso to Section 66 which provides for a
minimum sentence, opportunity of hearing should be given to the
accused so that he can point out if there are any special and adequate
reasons to impose upon him sentence less than the minimum
prescribed under the section. Once when the section provides for the
same it is not necessary to see which procedure is to be followed.
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(6) 1984 (2) G.L.R. 964 Jethalal Girdharlal V. State of Gujarat
In the case of Krishna V. State of Maharashtra reported in AIR 1979
Sc 1824, their Lordships have in terms held as under:
"The Provision of Rule 4 are merely directory and not mandatory if
the Public Analyst opined that the quantity below c.c. was sufficient
for the purpose of analyzing the result, then the rules must be
deemed to have been substantially coupled with."
In view of this clear pronouncement of the Supreme Court, there
cannot be any controversy about the directory nature of Rule 4.
In the present case there are other circumstances which clear
prove that the same phial No. 550 with perfect seals was received by
the office, it could be compared with Form 'B'. It cannot be said in
the present case that is no substantial compliance of Rule , 4 merely
because the seal so affixed was not a legible one.
(7) 1984 G.L.H.(FB) 438 Chamanbhai Gangaram Vankar Vs.
State of Gujarat
Requirements of Rule 4 (1), it would be sufficient if , a medical officer
who has drawn the blood sample utilizes his official seal or instead
his own monogram for sealing the phial if he is in charge of the
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hospital or dispensary where blood is collected. If the medical officer
is not in charge of such hospital or dispensary he may either use his
personal seal which would be his official seal or he can use his own
Monogram for the purpose of sealing.
(8) 1985(1) G.L.R 303 State of Gujarat Vs. Chandu Kachara @
Kesra
The court can take into consideration the statement of the accused
and hold him guilty of the offence punishable under section 66(1)(e) of
the Bombay Prohibition Act when no such case has been put up by
the prosecution . It is true that the prosecution could ordinarily not
have some direct evidence to show that the accused had consumed
alcohol at a particular place, but the prosecution could have very well
put up an alternative case against the accused that the he had
entered the territory of the State of Gujarat after consuming alcohol
outside the State of Gujarat and entered the territory of Gujarat and
thereby committed an offence punishable under section 66(1)(e) of the
Act. The prosecution having not put such an alternative case against
the accused , the accused can not be convicted of the offence
punishable under section 66(1)(e) of the Act.
A P RANDHIR Page 8
(9) 1985 (2) G.L.R.1071 Narchesinh Vs. State of Gujarat
A magistrate is bound to try a prohibition offence in a summary
manner, and he has no option. Limitation as to awarding the
maximum sentence as laid down in section 262 Criminal Procedure
do not apply where the trial takes place under section 116 Bombay
Prohibition Act.
(10) 1990 (2) G.L.R.451 State of Gujarat Vs. Bapuji Savail
The sample blood shall reach the Testing Officer within 7 days or its
collection and that it shall be accompanied by a forwarding letter in
Form B which shall bear a facsimile of the seal of the seal or
monogram used for sealing the phial Lapses on these count held to be
fatal to the prosecution.
The alleged offence took place on 27th October , 1978 at 21.15 Hours
and there after the P.S.I. had taken the accused to the medical officer
P.W. 2 who examined him on the very day at 23.00 hours and took his
sample of the blood in the manner as provided by R.4(1) of the said
Rules, of the purpose of sending it to the Chemical Analyzer. It is to
be noted that though the sample of the blood came to be collected on
27th October , 1978, the same was sent to the Chemical Analyzer on
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288th October 1978, which was received by the Chemical Analyzer on
10th November 1978 by Regd. Post. This clearly shows that the
sample of the blood has not been reached the Chemical Analyzer
within 7 days of its collection as provided in R.4(2) of th rules. From
the evidence of the said sample was accomplished by a forwarding
letter in Form B bearing a facsimile of the seal or monogram used for
sealing the phial of the sample blood of the accused. under the
circumstances, provisions of R.4(1) &(2) of the said Rules, which are
mandatory, are violated. These two patent infirmities are fatal to the
prosecution.
(11) 1991 (1) G.L.R. 433 Dhirajlal Gandabhai & Ors Vs. State of
Gujarat
Panchas have not supported the prosecuting case. P.S.I. Complainant
himself has admitted in his crossexamination that the seal bearing
signatures of the panchas were not affixed on the bottles and that he
had not made inquiry regarding the companies whose labels were
found on the bottles. P.S.I. has further admitted that he had not
made any enquiry whether the seals of the bottles were original or
not. Further, there is no independent cogent evidence connecting the
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petitioners has failed to prove that the car belonged to accused
persons and that they were in possession of that car. On the contrary,
panchas have disposed that the accused persons were also lying in
the Police Chowky. Neither the signatures of the panchas were
obtained, nor the seal was affixed on the bottles. Under the
circumstances, the learned Magistrate has erred in raising
presumption under Section 116B of the Bombay Prohibition Act.
(12) 1992 (2) G.L.H.(UJ11) 20 Gulabbhai Ranchhodbhai Vs.
State of Gujarat
In absence of examination of any manufacture of the product as
appeared from the labels on the bottle, it cannot be presumed that
the labels appearing on the bottles are the original one. Neither the
complainant not the witnesses of the seizure memo has stated that
labels appearing on the bottle are original one. To draw presumption
under Section 116B of the Act, the prosecution has to establish that
labels found on the sealed bottles indicating the names of the known
brand and the name of the manufacturer, are the original one. In
absence of this evidence as to the label being original, requirements
of Section 116B are not satisfied,. As the requirements of Section
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116B are not satisfied, prosecution there under cannot be drawn and
as there is no evidence to prove by evidence of the Chemical Analyzer
that the accused were in possession of prohibitory liquor the
conviction under Section 65 (A) and 66 (1)(b) can not be sustained.
(13) 1996 (2) G.L.R. 372 Kalidas Dhulabhai Vaghela Vs. State
of Gujarat
It is clear on plain reading of the rule 4 that the blood is to be
collected on the syringe and to be transferred into phial containing
anticoagulant and preservative and it has to be done by the doctor.
It is not clear from the material on record as to at what point of time
the anti coagulant and preservative were added in the prepared
phial which was given to P.W. 3 for the purpose of collection of blood
of the accused. This is grave infirmity in the process of collecting the
blood of the accused. It is , therefore in clear breach of the Rule 4 The
doctor has also admitted that the syringe was made clear and
sterilized by the Hospital peon Rule 4 of the said Rules of 1959, inter
alia, requires that the blood collected in the syringe shall be
transferred into phial containing anticoagulant and preservative .
Admittedly, this was not done by the doctor. This is on violation of
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the mandatory provision contained in the said Rule 4. This is
infirmity is of fatal nature and vitiates the order of conviction.
(14) 1996(3)G.L.R. 574 Chandbhai Mohmadbhai Sepai Vs.
State of Gujarat
(i) if the doctor is duty, he can use his official seal;(ii) if he is not on
duty, he can use his personal seal ; and (iii) if he is on duty, over and
above official seal and he actually used it. The fact that some other
doctor were also on duty, in Court's opinion , does not prohibit PW 1
from using his official seal.
As held by this court in State of Guajrat vs. Amarsinh Chhotabhai,
1976 GLR 96, the procedural requirement mentioned in Rules 3 and 4
are mandatory in nature and they must be complied with. It is ,
however , not necessary that every word stated in the Rules should
be enumerated by a medical officer before the Court. in the instant
case, the doctor has asserted that he has followed the procedural
requirements of the Rules. Nothing fruitful was taken out in cross
examination of the witness.
(15) 1996 (2) G.C.D. 707 State of Gujarat Vs. LAkshmansinh
Khumanji Barot
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It appears from the e provision of Rule 4 that in order to ensure
proper dispatch and idenfication of blood sample drawn from the
person of the accused , it should be sent ot the public analyst in
prescribed manner so as to avoid any scope of manipulation or
tampering with the sample of blood. Thus, there is healthy and
wholesome object for making such provision of Rule 4. Dr. Kamlesh
was the concerned medical officer who had drawn blood sample from
the person of the accused. He has clearly admitted in his evidence
the phial before the sample blood was put in he phial. The person
who had done the required process under Rule 4 is not examined.
Therefore, in the light of the facts and circumstances of the case, the
procedural safeguards prescribed in the Rule 4 so as to ensure
better dispatch and analysis of the incriminating sample taken from
the accused , are not satisfactory established.
(16) 1999 (1) GLR 626 Dinesh khemchand Patel Vs. State of
Gujarat
Gujarat Minor forest Produce Trade Nationalization Act is enacted to
provide for the nationalization of trade in certain minor forest
produce in the State of Gujarat . That under Sec.9 , Mhowra flower is
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declared as minor produce. As such , the object of the Act is to
regulate and control the trade of Mhowra flowers within the specified
area of minor forest produce is imposed and penalty is prescribed vide
Sec. 15 for violation of the provision of Sec. 3 of the Act. (para 7)
Above stated notification is issued under the provisions of the
Prohibition Act , 1949 and as such, possession of Mhowra flowers may
not be an offense under the provisions of the Prohibition Act, but per
se, it cannot exempt the said possessed quantity of Mhowra the
period of vacation declared under Sec. 60 of the Prohibition Act,
1949 , any person who desires to purchase, sale of transport Mhowra
flowers, which is a minor forest produce under the Nationalization
Act, could purchase , sale or transport under the provisions of the
said Act which required obtaining a permission from an authority
and purchase or sale could be made only through authorized persons.
(17) 2000 (3) G.L.R 2386 Avadh Bihari Amrutlal Vs. State of
Gujarat
Though some of the provision of rule is 4 are mandatory, is not as if
every aspect covered by the Rules is mandatory.
For instance, the rule enjoins that " the phial then shall be shaken
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vigorously". This cannot be said be a mandatory requirement. It
would not be necessary for the prosecution to show that the phial was
shaken vigorously. It is also not necessary that the doctor who is
examined, shall keep before him the text of the rule should depose to
having complied with every small requirement enjoined by the rule
and having performed every part of the act in accordance with the
procedure prescribed.
When Doctor has deposed clearly that he did not use spirit and
instead of using the suggest either solution in Rule 4 , he cleaned the
surface of skin with pad of hot water , the it cannot be said that the
requirement was mandatory and it is not complied with. By using
hot water pad for cleaning the surface of skin, no alcohol would go
inside the vein . The purpose of using the suggested solution under
Rule 4 for cleaning surface of skin is to clean the surface of skin so
that the pure blood of sample can be taken from the vein of the
accused, and therefore , to the Court's mind, the said requirement in
not of mandatory nature and by mere using hot water pad to clean
the surface of the skin , it cannot be said that Rule 4 is not complied
with.
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It is not necessary for the Doctor to depose that he himself added
anticoagulant and preservative in phial and had sterilized the the
syringe before use, and therefore , the contention of the learned
Advocate for the revision petitioner is devoid of merits in view of
aforesaid Full Bench Decision.
If a Registered Medical Practitioner who is authorized to collect the
blood sample of a person, then he has to put his own seal or
monogram. Here in this case, Dr. Joshi was a Doctor serving in Irivin
Hospital and the hospital had its own seal of "Medico Legal Gujarat
" , and therefore , there is nothing wrong to use that seal of " Medico
Legal Gujarat " on the phial as well as its facsimile in From B. When
Dr. Joshi was serving as a Medical Officer in the hospital, he can use
official seal of Hospital i.e. " Medico Legal Gujarat "
Requirement to put facsimile of seal forwarding letter in From B
Report of Chemical Examiner indicated that facsimile of seal was
affixed on forwarding latter In such a situation , fact that facsimile
was not visible when forwarding latter was shown to High Court
after 18 years would not make any difference.
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(18) 2005 ( 1 ) GLR 709 State of Gujarat Vs. Natwar Harchandji
Thakor.
The state Legislature has circumscribed the discretion , requiring the
Court to impose minimum sentence and left it open to award less
than the minimum sentence, statutorily prescribed , for special and
adequate reasons to be recorded in writing in the judgment. It leaves
no any manner of doubt that it is always open for the competent
Court to impose lesser than minimum, for in (sic.) presence of special
and adequate reasons , to the contrary to be mentioned in the
judgment of the court which are attributable and relatable to the
accused in a given factual profile of the case of each accused.
Normally, the Court has no discretion even to award a sentence less
than the said minimum. Nonetheless, the legislature was not
oblivious of certain very special and adequate situational realities
obtainable in a given case and peculiar to the each accused in the
given case and the profile of facts and circumstances of case in which
the sentence is being awarded The word "special" has to be
understood in contradiction to word " general " or " ordinary " . It
becomes apparent and unquestionable from the language employed
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in the provision that the reasons to be recorded in writing in
judgment for less than the minimum sentence, on the ground of
presence of special and adequate reasons in the light of sentencing
process must be special and adequate to the circumstances in a given
case and peculiar to the accused in each case. It is therefore , very
clear that the discretionary jurisdiction empowered in the trial
Magistrate must be based on and in presence of special and adequate
reasons to the country to be mentioned in the judgment of the court of
each case and each accused.
No Court can rewrite or reference the provisions contained in the
enactment made by the competent legislatures. The enthusiasm with
which the direction to record the " plea of guilty " and prayer for
mercy by prescribing specimen proforma for pleading guilty and
praying for mercy in sentence and the manner and mode in which the
specimen from is required to be filled up and signed by not only the
accused , but also the complainant , as well as, the prosecutor
concerned in the case before the trial Magistrate ,is nothing but re
writing and adding in the provisions of an enactment , and therefore,
such a direction or judicial prescription of a form against the specific
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statutory provision, obviously , would be impermissible unsustainable
and not legal.
19. KHIMJIBHAI KURJIBHAI V/s. THE STATE OF GUJARAT,
reported in 1982 Cr.L.R. (Guj), P. 381,
It has been held that " Suggestion in crossexamination are no
evidence. This proposition of law is good both in the case of the
prosecution and the defence. Mere hurling of some such suggestions
which are denied, can hardly take the place of proof or evidence. The
Law of Evidence is alike both for the prosecution and for the defence.
If the accused wants to establish a certain fact, he has to lead
evidence on that score. Such suspicion cannot have any place in the
realm of appreciation of evidence. We reiterate that a suggestion
denied by a witness remains only a suggestion and has no evidentiary
value at all".
20 State Of Gujarat Versus Amarsingh Chothabhai, reported
in 1976 G.L.R 96 wherein it is held that:
"Para9 :........ There is no reason to disbelieve the doctor who his
otherwise given satisfactory proof that she has substantially complied
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with the requirements of rule 4. Speaking of this case the doctor has
given certain details as to the precautions which she took at the time
of collecting blood It matters not if she had not repeated every word
prescribed by rule 4. The doctor has said that she has added
anticoagulant potassium anxelate to the sample taken by her and she
has further stated that she extracted blood as per Rules. The
deposition shows that she has referred to form B with reference to the
prescribed Rules. Form No. B does not prescribe any Rules and
therefore Shri Patel contended that when the doctor says that she
has extracted blood as per the Rules prescribed in Form B she does
not know what she was required to do. Here again I find that on
account of the summary trial the evidence given by the doctor is not
recorded exactly in the words she has uttered in box. What the doctor
means is that she had extracted blood according to the prescribed
Rules Reference to Form B seems to have been made with a view to
prove her signature under that Form. Reference to the cross
examination of this doctor shows that not a single question is put to
her to show that she has not taken necessary precautions at the time
of extracting blood from the body of the accused. In fact this part of
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the evidence of the doctor has gone totally unchallenged. Under these
circumstances the evidence given by the doctor cannot be thrown
away simply because she has not uttered certain words giving details
about what precautions she took at the time of extracting blood.
Para10 The learned Magistrate seems to have given undue
importance to the misstatement of the name of the father of the
accused when the sample of the blood was sent to the Chemical
Analyser. It is difficult to comprehend how this mistake could have
assumed any importance because it is purely a typographical
mistake. So far as the identity of the accused is concerned there is
clear and positive evidence to show that it was this accused who was
taken to the doctor by two constables named Bismillabhai
Ajamatkhan ex. 4 and constable Virsingh Chhaganbhai ex.6. It is
very satisfactorily proved that it was this accused who was
apprehended at the police station by the P.S I. Balkrishna S.
Deshmukh ex. 15 and constable Hemabhai Chhaganbhai ex. 11
Rajkam found at ex. 12 also corroborates this fact. Under the
circumstances the mistake in spelling of the name of the father of the
accused committed while sending the sample to the Chemical
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Analyser is of no consequence at all.
21. State Of Gujarat V/s Chandrasing Prabhatsing Solanki
,reported in 1971 G.L.R 663 , wherein it is held that:
"In the instant case, the accused had not shown by leading any other
evidence that the medicinal preparation containing alcohol which he
is alleged to have taken was unfit for use as an intoxicating liquor.
On the contrary, in crossexamination by the accused, the medical
officer, Padra stated that 8 or 9 ounces of the contents of winopal
would show concentration of alcohol containing 0.1081% w/v of ethyl
alcohol. The testimony of the medical officer, Padra shows that when
he examinated the accused, he was under the influence of drink. It
cannot, therefore, be said that the alleged drink was unfit for use as
intoxicating liquor. In Vijay Singh’s case, the case of State of
Maharashtra v. Laxman Jairam, reported in A.I.R. 1962, Supreme
Court, 1204 was referred to and distinguished by the Supreme Court.
Evidently, the Supreme Court did not go to the extent of holding that
a bare statement of the accused would be sufficient to discharge the
presumption that he had consumed liquor. In my opinion, therefore,
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the learned Magistrate was clearly in error in holding that the
accused had discharged the burden merely because in his statement
recorded under sec. 342 of the Code of Criminal Procedure he came
out with the story that he had consumed medicinal preparation viz.,
winopal B 12. In my opinion, the decision of the Supreme Court
reported in A.I.R. 1962, S.C. referred to above did not warrant this
conclusion. As observed earlier, that decision is merely an authority
on the point that a statement of the accused recorded under sec. 342
of the Code of Criminal Procedure can be taken into consideration
and if the explanation given by the accused is plausible it may be
considered sufficient to rebut the presumption raised under sec. 66(2)
of the Act. But it does not lay down in particular that in every case, a
bare statement of the accused would be sufficient to rebut the
presumption under sec. 66(2) of the Act. In my opinion, the accused
has failed to rebut the presumption that he had consumed liquor in
view of the fact that concentration of alcohol, in his blood was found
to be 0.1081 w/v as stated in the report ex. 16 of the chemical
analyser. It is presumed that the accused had consumed liquor in the
absence of any evidence showing that the accused had consumed
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medicinal preparation. The order for acquittal passed by the learned
Magistrate, therefore, could not be sustained."
22. State Of Gujarat V/s Mulji Hansraj & Ors, reported in 1976
G.L.R 625 , wherein it is held that:
"Para 16: ......Bearing in mind the aforesaid narration of the
prosecution case and being conscious of the powers of this court when
it deals with an appeal against the order of acquittal, i, prima facie,
fail to see as to why there was no charge or accusation against
Accused Nos. 2 to 8 inasmuch as they possessed liquor in
contravention of the provisions contained in Sec. 66 of the Bombay
Prohibition Act, 1949. It is significant to note that when the accused
persons were apprehended, all of them were found at one spot in the
farm house situated 15 Kilometers away from Kodinar. It is equally
significant to note that the police constable had to jump over the wall
in order to enable the officers to reach the spot in question namely,
the scene of offence. It is equally significant to note that when the
search was carried out, 5 glasses smelling of liquor, two empty bottles
smelling of liquor, 12 empty soda water bottles and one full bottle
containing alcohol were found on the spot. It may be mentioned that
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when the accused persons were apprehended at such a spot, they
might have made an effort to run away, but, they failed in doing so,
and ultimately, they were apprehended by the concerned authorities
and sent to civil hospital, Amreli at about 400 a. M. It is significant
to note that on these same facts. Accused No. 1 was charged for
possessing liquor, whereas other accused persons were not charged
for possessing liquor. This type of glaring and patent inequality, to
my mind, must necessarily be corrected at the very initial stage of the
hearing of the matter. The alleged facts are common and same
against all the accused persons. There is no striking distinguishing
feature in the case of Accused No. 1, and the case against Accused
Nos. 2 to 8. I am conscious of the fact that Accused No. 1 is the owner
of the farm (wadi) and the others had gone to the farm. But in such
cases, such a distinction has no significance or importance. Such a
thin thread of distinction, if noticed, i am sure, would defeat the very
purpose and object of the Bombay Prohibition Act, 1949. If it was
alleged by the prosecution that Accused No. 1 was guilty of
possessing liquor on the aforesaid facts, and the circumstances of the
case, but i fail to see as to why there was no accusation or charge
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against Accused Nos. 2 to 8 for possessing liquor in contravention of
the provisions, of Sec. 66(1)(b) of the Bombay Prohibition Act, 1949.
Whenever “drinking parties” are detected by the police, it is the
imperative duty of the prosecution to allege that all the participants
of the same are charged with the “possession” of liquor in
contravention of the provisions of law contained in sec. 66(1)(b) of the
Bombay Prohibition Act, 1949. It may be emphasized that in such
cases, “possession” of liquor does not only necessarily mean Actual
physical conscious possession of the owner or the occupant of the
premises”. In such case of “drinking parties”. It is always open to a
participant to stretch his hand and to take the liquor in question for
his own use and consumption. But, in all such cases of “drinking
parties”, the court must be satisfied that the attendant circumstances
should clearly indicate that the accused persons are the participants
in a “drinking party”. In the case before me, why should the accused
persons, during the night hours, having gathered together go to a
distant farm house? Why should they be found with the aforesaid
articles? Why should they create a situation as a result of which a
constable had to jump over a wall ? Why should they try to run away
A P RANDHIR Page 27
when they were apprehended by the responsible officers from
Amreli?.
Para 17.: In such circumstances, it is the duty of the prosecution to
see that all the participants are charged with the commission of the
offence viz: of possessing liquor in contravention of the provisions
contained in sec. 66 (1)(b) of the Bombay Prohibition Act, 1949.
Unless the prosecution is careful in this behalf, the menace of
“drinking parties” cannot be stopped, and no deterrent effect would
be caused in the minds of those who exploit the dark hours of a night
in a distant farm for arranging or participating in “drinking parties”.
It is significant to note that all the accused persons were very much
near the articles namely, one full bottle containing liquor and other
articles as stated above, and these circumstances to my mind, are
sufficiently eloquent facts, which, prima facie, are sufficient to frame
the necessary charge for the commission of an offence punishable
under sec. 66(1)(b) “for possession” of liquor in contravention of the
provisions of sec. 66 of the Bombay Prohibition Act, 1949,
particularly, when on the “same facts” Accused No. 1 was charged for
having the possession of liquor in contravention of the aforesaid
A P RANDHIR Page 28
provisions of sec. 66(1)(b) of the Act.
23. Apex Court In case of Patel Jethabhai Chatur V/s State Of
Gujarat ,repoprted in 1977 G.L.R 360, wherein it is held that:
"Para6 :...............It is true that there are certain observations made
by the High Court which are a little too wide but it cannot be
gainsaid that even a person who participates in a drinking party can
in conceivable cases be guilty of the offence of possession of liquor.
Suppose a person is found at a drinking party and he has a glass with
him with liquor in it at the time when the raid is carried out, would it
not be correct to say that he was at the relevant time in possession of
liquor ? The liquor in his glass would be liquor in his possession. But
at the same time it would not be correct to say that merely because a
participant in a drinking party can stretch his hand and take liquor
for his use and consumption, he can be held to be in possession of
liquor. The question is not whether a participant in a drinking party
can place himself in possession of liquor by stretching his hand and
taking it but whether he is actually in possession of it. Possession
again must be distinguished from custody and it must be conscious
possession. If, for example, a bottle of liquor is kept by some one in
A P RANDHIR Page 29
the car or house of a person without his knowledge, he cannot be said
to be in possession of the bottle of liquor. It cannot, therefore, be laid
down as an absolute proposition that whoever is present at a
drinking party must necessarily be guilty of the offence* of possession
of liquor and must be charged for such offence. Whether an accused is
in possession of liquor or not must depend on the facts and
circumstances of each case. Here in the present case, the prosecution
will have to establish at the trial by leading satisfactory evidence that
the appellant and the other accused were in possession of liquor or
also the prosecution on the charge of possession of liquor will fail. The
order directing trial of the appellant and the other accused for the
offence of possessionof liquor must, therefore, be maintained,
24 In case of State Of Gujarat V/s Bhimabhai Kalidas Patel,
reported in 1985 (2) G.L.R 745 , wherein it is held that:
"Para 4. In a case such as the present, what should be the proper
approach has been aptly set out in Shanwar Manu Koli v. Emperor,
AIR 1950 Bombay 267 by the Division Bench. The Division Bench
speaking through Chagla, C. J. has observed as under :
“Where the law makes it obligatory for a search to take place in
A P RANDHIR Page 30
presence of panchas and a search has not taken place in presence of
panchas and the only evidence on which the prosecution ask for a
conviction of the accused is police evidence, then certainly the Court
should not ordinarily act on that evidence. Because the law has
provided a certain safeguard by way of a panchanamas being made
and a search taking place in presence of panchas, and, in the absence
of that safeguard, it would generally not be safe to convict an accused
person. The absence of that safeguard would be prejudicial to the
accused, and in most cases that prejudice is apparent in the very fact
of doing away with the safeguard provided by the law.”
Para5. The Division Bench has then referred to another class of
cases and has observed as under :
“There is a second class of cases where it is impossible to seize an
article or to arrest a person in presence of panchas. Police officers
may suddenly come across a working still or they may come across a
person on whose person there are incriminating articles and they
may have to seize the still or they may have to arrest the person. It is
impossible to contend in these cases that the police should not do
their duty till they had found some panchas in whose presence they
A P RANDHIR Page 31
should seize the still or arrest the suspected person. In cases like
these, it would be open to the trial Court to accept the police evidence
and convict the accused if the Court was satisfied that the evidence
was of a satisfactory character and the guilt of the accused was
proved.”
Para6. The Division Bench has then proceeded to consider a third
class of cases where although the law does not make it obligatory for
a search to take place in presence of panchas still in the view of the
information already received there is sufficient time for panchas to be
called and a seizure to be made in presence of panchas. In this
connection, it has been observed that although the law does not make
it obligatory, it would be advisable on the part of the police in such
cases to raid a place or seize incriminating articles accompanied by
panchas. The police should as far as possible avoid any suggestion
being made that they have not taken all the precautions which are
necessary in order to safeguard the liberty of the subject. If the police
do not avail themselves of panchas in the last category of cases, the
result would not be that the police evidence must necessarily be
discarded and no conviction can be based on that evidence.
A P RANDHIR Page 32
Para7. The present is a case which in our opinion falls in the
aforesaid second category as the raiding party had come across a
person who was suspected to be carrying articles which might
ultimately establish that an offence was committed. In the present
case, there is nothing to show that any information regarding the
accused had been received by the members of the task force. In a case
such as the present, therefore, it was open to seize the articles and
arrest the person without the aid of panchas. In such a case, on
principle, the evidence of a sole police witness without corroboration
can be accepted, but such evidence should stand scrutiny and inspire
confidence and the same cannot be discarded only on the ground that
it is not corroborated by other evidence. In this connection, it is
necessary to mention that the learned Sessions Judge has taken a
view that in the present case it was not possible to have panchas in
the beginning but then he has proceeded to observe as
under :“However, the accused was intercepted on the road and before
the search of the bag could be taken, there was the scope for the
complainant to call panchas to witness the finding out of the bottles
A P RANDHIR Page 33
from the said bag. But no attempt was made in that direction and,
therefore, lacuna in the prosecution case has not been fulfilled by the
prosecution”.
In a case falling under the second category, we do not think that it
was either necessary under law to have panchas in the beginning or
at some later stage before the goods were searched or the person was
arrested. The approach of the learned Sessions Judge, therefore, is
clearly erroneous in this connection.
25. Pandit Ukha Kolhe Vs. The State of Maharashtra 1963 AIR
1531 1964 SCR (1) 926 (11 February 1963)
Held : 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 antiseptic 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
A P RANDHIR Page 34
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 Courteither by
examining the expert himself or if the law permits by producing his
960 report even without such examination. A special provision has
A P RANDHIR Page 35
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 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
A P RANDHIR Page 36
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 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 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 subsection (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 practitioner under subsection (1) or on his
production before such medical practitioner to the examination of his
A P RANDHIR Page 37
body or to the collection of his blood, it shall be lawful to use all
means reasonably necessary to secure the production of such person
or the examination of his body or the collection of blood necessary for
the test.
(4) If the person produced is a female, such examination shall be
carried out by, and the blood shall be collected by or under the
supervision of a female registered medical practitioner authorised by
general or special order, by the State Government in this behalf, and
any examination of the body, or collection of blood, of such female
shall be carried out or made with strict regard to decency.
(5) Resistance to production before a registered medical practitioner
as aforesaid or to the examination of the body under this section, or to
the collection of blood as aforesaid, shall be deemed to be an offence
under section 186 of the Indian Penal Code.
(6) Any expenditure incurred for the purpose of enforcing the
provision of this section including any fees payable to a 962
registered medical practitioner or the officer appointed under sub
section (1), be defrayed out of the money provided by the State
A P RANDHIR Page 38
Legislature.
(7) If any Prohibition Officer or Police Officer vexatiously and
unreasonably proceeds under subsection (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.
26. STATE OF GUJARAT APPELLANT V. SOMABHI
PUNABHAI BHANGI CRIMINAL APPEAL No : 262 Year : 2005
Decided on : 7/9/2011
It is to be noted that the learned trial Court has not given any cogent
reasons for acquitting the accused but only held that Savitabenwife
A P RANDHIR Page 39
of the accused who gave application was not examined and the
panchas have also turned hostile and therefore acquitted the accused.
But as discussed above, when the doctor who has examined the
accused and collected the blood from the body of the accused did not
disclose regarding how the phial was prepared and which
preservative was used for preserving the blood, in opinion of this
Court, the prosecution has failed to prove beyond reasonable doubt
the charges levelled by the prosecution against the accused.
27. STATE OF GUJARAT V. BABUBHAI BHIKHABHAI SIPAI
CRIMINAL APPEAL No : 912 Year : 2002 Decided on : 17/2/2010
In any event the High Court entertained an appeal treating to be an
appeal against acquittal, it was in fact exercising the revisional
jurisdiction. Even while exercising an appellate power against a
judgment of acquittal, the High Court should have borne in mind the
wellsettled principles of law that where two view are possible, the
appellate court should not interfere with the finding of acquittal
recorded by the court below."
If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
A P RANDHIR Page 40
of acquittal recorded by the trial court."
The trial court while considering the oral as well as documentary
evidence has clearly observed that the panchas of the panchnama of
physical condition of the respondent accused turned hostile. The
Medical Officer who has taken the thumb impression of the accused
has failed to prove the same before the trial court and the procedure
which was adopted by the Medical Officer was not as per the
provisions of law. The prosecution has miserably failed to prove the
case against the accused beyond any reasonable doubt. Even in the
present appeal, nothing is produced or pointed out to rebut the
conclusion of the trial Court. Thus, from the evidence itself it is
established that the prosecution has not proved its case beyond
reasonable doubt.
28. STATE OF GUJARAT V. MAKWANA CHEHUJI BHAVANJI
CRIMINAL APPEAL No : 1596 Year : 2003 Decided on :
16/2/2010
The entire prosecution case rests on prosecution witnesses and oral
as well as documentary evidences. It appears from the oral evidences
of witnesses and ocumentary evidence produced before the Court that
A P RANDHIR Page 41
the prosecution has failed to prove the case against the respondent
accused. Even certificate of doctor and oral evidence of doctor are
contrary to each other and therefore from the medical evidences also
the prosecution has failed to prove the case against the accused.
Hence it appears that there is serious lacuna in the prosecution case
and the prosecution has failed to establish the case against the
respondentaccused. Therefore the Trial Court has rightly passed the
order of acquittal in favour of the accused and I do not find any
reason to interfere with the said finding of the Trial Court.
29. STATE OF GUJARAT vs. LAKSHMANSINH KHUMANJI
BAROT CRIMINAL APPEAL No : 591 Year : 1988 Decided on :
2/2/1995
(A) BOMBAY PROHIBITION ACT, 1949 (XXV OF 1949) Secs 66(1)
(b) and 85(1)(3) Bombay Prohibition (Medical Examination and
Blood Test) Rules, 1959 Rule 4 Blood sample not properly
Dispatched and analysed Noncompliance of mandatory
requirement Held, that the acquittal order was proper.
CHANDBHAI MOHMADBHAI SEPAI vs. STATE OF GUJARAT
A P RANDHIR Page 42
CRIMINAL REVISION APPLICATION No : 6 Year : 1993 Decided
on : 9/12/1994
(A) BOMBAY PROHIBITION ACT, 1949 (XXV OF 1949) Sec. 66(1)
(b) Bombay Prohibition (Medical Examination and Blood Testing)
Rules, 1959 Rules 3 and 4 Using of official seal of the hospital on
the blood sample Medical Officer who was on duty alongwith other
Medical Officers, used official seal on blood sample Contention that
Rules were violated since the Doctor did not use his personal seal
Contention negatived.
The accused a Police Constable was convicted for offence under Sec.
66(1)(b) of the Bombay Prohibition Act. (Para 2)
It was submitted that the doctor has not followed the procedure
before collection of blood of the petitioner. He had not used his
personal seal as required by the Rules and as per the decision of the
Gujarat High Court. (Para 4)
After quoting the principles laid down in the Full Bench decision of
the Gujarat High Court in Chamanbhai Gangaram v. State of
Gujarat, 1984 GLH 438 (FB), the Court observed :
A P RANDHIR Page 43
From the above decision of the Full Bench, it is clear that (i) if the
doctor is on duty, he can use official seal; (ii) if he is not on duty, he
can use his personal seal; and (iii) if he is on duty, over and above
official seal, he can also use his own monogram for affixing it on the
sealed phial. Since PW 1 was on duty on that day, he could have used
his official seal and he actually used it. The fact that some other
doctors were also on duty, in Court's opinion, does not prohibit PW 1
from using his official seal. The contention, therefore, cannot be
upheld. (Para 8)
As held by this Court in State of Gujarat v. Amarsinh Chhotabhai,
1976 GLR 96, the procedural requirement mentioned in Rules 3 and 4
are mandatory in nature and they must be complied with. It is,
however, not necessary that every word stated in the Rules should be
enumerated by a medical officer before the Court. In the instant case,
the doctor has asserted that he has followed the procedural
requirements of the Rules. Nothing fruitful was taken out in cross
examination of the witness. Though bald assertion was made that he
had not followed the Rules and FormB was filled in without
A P RANDHIR Page 44
following proper procedure, no material whatsoever was produced
from which it can be said there was noncompliance with the Rules.
Averments and allegations were denied and it was held by both the
Courts that the doctor had followed the provisions of Rules 3 and 4.
Court does not see any reason to interfere with the said finding of fact
and hence, that finding is required to be affirmed and is accordingly
affirmed. (Para 6)
(B) BOMBAY GENERAL CLAUSES ACT, 1904 (I OF 1904) Sec. 10
Bombay Prohibition Act, 1949 (XXV of 1949) Sec. 66(1)(b)
Bombay Prohibition (Medical Examination and Blood Testing) Rules,
1959 Rule 4(2) Requirement to send blood sample for testing
"within 7 days" Blood collected on 26th February and reached the
office of the Chemical Analyser on 5th March Having regard to Sec.
10 of General Clauses Act, the first in a series of days has to be
excluded So computed, sample reached on the 7th day
Requirement of the Rule, held, was complied with.
Regarding collection of blood and sending it to Chemical Analyser, it
was contended that as per the evidence of PW 1 the blood of the
petitioner was collected by him on February 26, 1990 and it reached
A P RANDHIR Page 45
the office of the Chemical Analyser on March 5, 1990. According to
Mr. Dagli, the prescribed period of seven days was over by then
inasmuch as the sample reached the office of the Chemical Analyser
on the eighth day. At the first blush, the argument appears to be
attractive, but on close scrutiny, Court does not find any substance in
it. Section 10 of the Bombay General Clauses Act, 1904 enacts that
whenever any action is required to be taken within a particular
period, the first in a series of days should be excluded. (Para 9)
Sample blood must be held to be received by the Chemical Analyser
on the seventh day and, therefore, it was in accordance with law.
(Para 9)
30. BHAVARLAL FUGLUJI VISHNOI AND ANR. V. STATE OF
GUJARAT CRIMINAL REVISION APPLICATION No : 215 Year
: 2008 Decided on : 3/5/2013
(A) Bombay Prohibition Act, 1949 (25 of 1949) Secs. 65(a), (e), 66(1)
(b), 116 & 81 Sentence Jeep car carrying 59 boxes/2004 bottles of
foreign liquor intercepted by police while coming from Rajasthan
Considering that this was first offence of convicts etc., the Court
reducing sentence from 3 years' R.I. to seven months' imprisonment
A P RANDHIR Page 46
for offence under Sec. 65(e).
In view of above, sentence imposed by the learned trial Court cannot
be said to be proper. The facts and circumstances of the case, viz., it is
a first offence of the petitioners, mismatch between the say of the
prosecution as to the volume of intoxicants and capacity of muddamal
jeep to contain that quantity, absence of evidence as to buying, selling
and import etc. not at all considered by the Court. Imposition of
maximum sentence in the circumstances of the case is erroneous and
it requires interference in Revision. (Para 21)
In the facts and circumstances of the case, in my opinion, sentence of
seven months imprisonment for the offence under Sec. 65(e) and six
months imprisonment for the offence under Sec. 66(1)(b) imposed on
the appellants would meet the ends of justice. It is clarified that the
order of imposition of fine and sentence in default of fine, is not
interfered. The sentence of imprisonment awarded herein would run
concurrently. Imprisonment suffered by the petitioners shall be
adjusted against the sentence awarded. The appeal is allowed to the
aforesaid extent. Rule is made absolute to the aforesaid extent. R. &
P. be sent back to the trial Court concerned. (Para 22)
A P RANDHIR Page 47
STATE OF GUJARAT V. JABBIRSING RATANSING INDRA
RAJPUT CRIMINAL APPEAL No : 108 Year : 1991 Decided on :
4/2/2013
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of
1985) Sec. 21 Seizure of opium (502 grams) Contraband article
not sealed immediately on seizure but sealed after 5 hrs. Further,
same not kept in safe custody and in a sealed condition so as to rule
out possibility of tampering Acquittal, confirmed.
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of
1985) Secs. 52A(2), 55 & 21 Noncompliance of provisions of Secs.
52A(2) & 55, held, would cause prejudice to accused and would entitle
him to acquittal.
(C) Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of
1985) Sec. 21 No evidence as to how and from where muddamal
articles transmitted to F.S.L. Further, evidence of witness who said
"he received muddamal articles from F.S.L. and deposited it with the
Court" doubtful etc. Held, said lapses in investigation serious
Therefore, conviction cannot be recorded on basis of F.S.L. report.
(D) Bombay Prohibition Act, 1949 (25 of 1949) Sec. 66 Seizure of
A P RANDHIR Page 48
bottle of foreign liquor Sample of contents of bottle not sent to
Chemical Analyser for his opinion No evidence that seal of bottle is
original/affixed by company Further, bottle not kept in safe custody
Held, accused cannot be held guilty for offence of Sec. 66.
(E) Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of
1985) Secs. 50 & 21 Held, Sec. 50 applies only in case of search of a
person Section does not apply to vehicle, container, bag, premises
etc. Further, investigation by same police officer who is complainant
not vitiated unless it is shown that I.O. was biased against accused.
::THANK YOU::
A P RANDHIR Page 49

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BOMBAY PROHIBITION ACT JUDGMENTS

Bombay Prohibition Act, 1949 measn is found overcome or

clause (1). When he is so overcome intoxicated as to behave n a

disorderly manner he would also be committing an offence under

take liquor for his use and consumption , he can be held to be in

he is actually in possession of it. Possession again must de

cannot therefore be laid down as an absolute proposition that

the offence of possession of liquor and must be charged for such

The requirement of rule 4 of the Bombay prohibition (Medical

there, then there should be a monogram of the registered medical

practitioner used, which would be the personal monogram of the

and also to assure the authenticity by comparing the two seals.

Intention of the rule is that the seal affixed on the phial must be

identical to the seal mentioned by the medical officer in Form 'B'

wherein facsimile of the seal is required to be mentioned, If both

While under section 473 of the criminal procedure code, what is

advance so that the accused should prepare his defence, but there

It is necessary for the prosecution , before filling the charge sheet

prosecuting agency if it was wait for the report of the chemical

At the time the magistrate takes cognizance of the offence the

being given an opportunity of being heard at that time. After the

it is for the Magistrate to consider at the proper stage of the

proceeding whether the accused can avail of the bar limitation as

minimum sentence, opportunity of hearing should be given to the

reasons to impose upon him sentence less than the minimum

In view of this clear pronouncement of the Supreme Court, there

(7) 1984 G.L.H.(FB) 438 Chamanbhai Gangaram Vankar Vs.

his own monogram for sealing the phial if he is in charge of the

put up an alternative case against the accused that the he had

the accused , the accused can not be convicted of the offence

A magistrate is bound to try a prohibition offence in a summary

manner, and he has no option. Limitation as to awarding the

Form ­ B which shall bear a facsimile of the seal of the seal or

petitioners has failed to prove that the car belonged to accused

the Police Chowky. Neither the signatures of the panchas were

circumstances, the learned Magistrate has erred in raising

(12) 1992 (2) G.L.H.(UJ­11) 20 Gulabbhai Ranchhodbhai Vs.

In absence of examination of any manufacture of the product as

brand and the name of the manufacturer, are the original one. In

of Section 116B are not satisfied,. As the requirements of Section

that the accused were in possession of prohibitory liquor the

It is clear on plain reading of the rule 4 that the blood is to be

the anti­ coagulant and preservative were added in the prepared

alia, requires that the blood collected in the syringe shall be

transferred into phial containing anti­coagulant and preservative .

the mandatory provision contained in the said Rule 4. This is

(14) 1996(3)G.L.R. 574 Chandbhai Mohmadbhai Sepai Vs.

are mandatory in nature and they must be complied with. It is ,

proper dispatch and idenfication of blood sample drawn from the

person of the accused , it should be sent ot the public analyst in

prescribed manner so as to avoid any scope of manipulation or

tampering with the sample of blood. Thus, there is healthy and

procedural safeguards prescribed in the Rule ­ 4 so as to ensure

provide for the nationalization of trade in certain minor forest

declared as minor produce. As such , the object of the Act is to

Above stated notification is issued under the provisions of the

se, it cannot exempt the said possessed quantity of Mhowra the

period of vacation declared under Sec. 60 of the Prohibition Act,

said Act which required obtaining a permission from an authority

vigorously". This cannot be said be a mandatory requirement. It

shaken vigorously. It is also not necessary that the doctor who is

syringe before use, and therefore , the contention of the learned

Advocate for the revision petitioner is devoid of merits in view of

blood sample of a person, then he has to put his own seal or

Form B which shall bear a facsimile of the seal of the seal or

(12) 1992 (2) G.L.H.(UJ11) 20 Gulabbhai Ranchhodbhai Vs.

the anti coagulant and preservative were added in the prepared

transferred into phial containing anticoagulant and preservative .

procedural safeguards prescribed in the Rule 4 so as to ensure

Requirement to put facsimile of seal forwarding letter in From B

It has been held that " Suggestion in crossexamination are no

"Para9 :........ There is no reason to disbelieve the doctor who his

prove her signature under that Form. Reference to the cross

Para10 The learned Magistrate seems to have given undue

importance to the misstatement of the name of the father of the

On the contrary, in crossexamination by the accused, the medical

"Para 16: ......Bearing in mind the aforesaid narration of the

Para5. The Division Bench has then referred to another class of

Para7. The present is a case which in our opinion falls in the