Case Note & Summary
The Supreme Court considered an appeal by special leave against a Bombay High Court order dismissing a revision and upholding a Sessions Court order setting aside a conviction and directing a retrial. The appellant was tried for offences under the Indian Penal Code, the Motor Vehicles Act, and the Bombay Prohibition Act. The Trial Magistrate acquitted the appellant of rash and negligent driving and IPC offences but convicted him under Section 66(b) of the Bombay Prohibition Act based on a Chemical Examiner report showing blood alcohol of 0.069% w/v, above the limit in Section 66(2). On appeal, the Sessions Judge found that the prosecution failed to prove safe custody of the blood phial from April 3 to April 18 and storage conditions, and ordered a retrial. The High Court summarily dismissed the revision. On April 3, 1961 at about 2:30 AM, a motor vehicle fell into a ditch near Edlabad, Jalgaon, injuring occupants and causing the death of Mohmad Yusuf. At 6 AM, the appellant was taken to Civil Hospital, Jalgaon, where he fainted upon learning of the death and was found smelling of alcohol. Dr. Kulkarni directed Dr. Rote to collect a venous blood specimen in a phial, which was sealed. The appellant was discharged before treatment. Police received information about the accident at 8 AM and registered a case for IPC and Motor Vehicles Act offences, later adding Section 66(b) of the Bombay Prohibition Act based on information of intoxication. Investigating officer sent the appellant for medical examination; a second blood sample was collected at 11 AM and sent to the Chemical Analyser. On April 12, the investigating officer learned of the first blood sample taken by hospital authorities, obtained the phial and Dr. Rote's certificate, affixed an additional seal, and sent it to the Chemical Examiner on April 18. The report showed alcohol concentration of 0.069% w/v, leading to a complaint under the Prohibition Act. The legal issues were whether the Chemical Examiner's report for blood collected before investigation and not under Section 129A was admissible; whether the Sessions Judge was justified in ordering a retrial; and whether the Bombay Prohibition Act provisions prevailed over Section 510 CrPC due to Presidential assent. The appellant argued that the report was inadmissible because blood was not collected in the manner prescribed by Section 129A and that the retrial order was illegal. The respondent argued that the report was admissible under Section 510 CrPC because blood was collected before investigation by hospital authorities, and that retrial was appropriate to fill gaps in prosecution evidence. The majority held that Sections 129A and 129B of the Bombay Prohibition Act provide one method of collecting evidence of blood alcohol content but do not exclude other methods. If blood was collected before investigation, not during investigation under Section 129A, the report was admissible under Section 510 CrPC. The Bombay Act, having been reserved for the President's consideration and assented, prevailed over Section 510 CrPC to the extent of inconsistency. On retrial, the court held that retrial should be ordered only in exceptional circumstances, and the Sessions Judge should have taken additional evidence himself under Section 428(1) CrPC instead of directing a retrial. The appeal was allowed to the extent of setting aside the retrial order, and the Sessions Judge was directed to proceed in accordance with law. The decision was mixed, favoring neither party entirely.
Headnote
A) Criminal Trial - Evidence - Admissibility of Chemical Examiner Report - Bombay Prohibition Act, 1949 Sections 66(2), 129A, 129B; Code of Criminal Procedure, 1898 Section 510 - Majority held that report of Chemical Examiner regarding blood specimen collected before investigation by hospital authorities and not under Section 129A was admissible under Section 510 CrPC; Sections 129A and 129B provide one method but do not exclude other methods of proving blood alcohol content; if blood was collected during investigation otherwise than prescribed by Section 129A, report cannot be used in evidence; Bombay Act No. 12 of 1959 prevailed over Section 510 CrPC to extent of inconsistency due to reservation and Presidential assent. (Paras not mentioned) B) Criminal Procedure - Retrial - Code of Criminal Procedure, 1898 Section 428 - Court held order for retrial was bad; appellate court should take additional evidence itself under Section 428(1) rather than direct retrial; retrial should be ordered only in exceptional cases such as lack of jurisdiction, serious illegality, misconception of proceedings, or parties prevented from producing evidence; prosecution should not be given opportunity to rectify infirmities disclosed at first trial. (Paras not mentioned) C) Constitutional Law - Repugnancy - Bombay Prohibition Act, 1949 Sections 129A, 129B; Code of Criminal Procedure, 1898 Section 510 - State Act reserved for President's consideration and assented prevailed over central law to extent of inconsistency; Section 510 not applicable to reports of chemical examiner in respect of blood collected in course of investigation under Act otherwise than under Section 129A; but reports of blood collected before investigation or at instance of police/prohibition officer admissible under Section 510. (Paras not mentioned) D) Dissenting Opinion - Evidence - Presumption under Section 66(2) - Bombay Prohibition Act, 1949 Sections 66(2), 129A - Per Das Gupta J, report of Chemical Examiner for blood not taken in accordance with Section 129A was not admissible; Section 66(2) presumption intended to be drawn only when procedure under Section 129A followed; dissent relied on Nazir Ahmad v. King Emperor. (Paras not mentioned)
Issue of Consideration
Whether report of Chemical Examiner for blood specimen collected before investigation and not under Section 129A Bombay Prohibition Act was admissible; whether Sessions Judge was justified in ordering retrial; whether Bombay Prohibition Act provisions prevailed over Section 510 CrPC due to Presidential assent
Final Decision
The Supreme Court held that the report of the Chemical Examiner was admissible in evidence because Sections 129A and 129B of the Bombay Prohibition Act did not exclude other methods of proving blood alcohol content, and the blood specimen was collected before investigation; however, the order for retrial was bad. The Sessions Judge should have taken additional evidence under Section 428(1) of the Code of Criminal Procedure, 1898 instead of directing a retrial. The appeal was allowed to the extent of setting aside the retrial order, and the Sessions Judge was directed to proceed in accordance with law.
Law Points
- Chemical Examiner report admissible when blood collected before investigation under Section 510 CrPC
- Sections 129A and 129B provide one method but do not exclude other evidence
- Bombay Prohibition Act prevails over Section 510 CrPC to extent of inconsistency
- retrial should be ordered only in exceptional circumstances
- appellate court should take additional evidence under Section 428 CrPC instead of retrial
