- (1.)THE facts giving rise to this appeal briefly are that on the evening of 8th December 1960 the accused was arrested as he was suspected to have consumed alcohol. He was sent to the hospital for examination. The medical officer, who examined him, issued a certificate Exh. 3, in which he has stated that the breath of the accused smelt of liquor, that his pupils were dilated, that his eyes were congested and that he had consumed liquor. The medical officer also collected some blood from the body of the accused and sent it to the Chemical Analyser for examina tion. On 1-4-1961 the Chemical Analyser issued a certi ficate, that the blood contained 0. 292 per cent. W/v of ethyl alcohol. The accused was then prosecuted on the charge of consuming liquor and thereby committing an offence punishable under Section 66 of the Bombay Prohibition Act. In order to prove that the accused had consumed prohibited liquor, the prosecution relied on Sub-section (2) ot Section 66 of the Act, which states that, where in any trial of an offence for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved 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 pre paration, or an antiseptic preparation or solution, or a flavouring extract essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary. The presumption referred to can be drawn under this sub-sec tion, only if it is proved that the concentration of alcohol in the blood was not less than 0. 05 per cent, by weight in volume. For the purpose of showing that the concentration of alcohol in the blood of the respondent accused exceeded the quantity mentioned in Sub-section (2) of Section 66, the prosecution relied on the certificate of the Chemical Analyser. Such a certificate is admissible in evidence under Section 129-B of the Act, The Chemical Analyser had in his certificate not given the data or the reasons for coming to the conclusion that the accused's blood contained 0. 292% ethyl alcohol. The learned Magis trate was of the opinion that, in the absence of this in formation, he could not decide what weight should be attached to the opinion of the Chemical Analyser. He, therefore held that the prosecution had failed to establish that the concentration of alcohol in the blood of the ac cused was not less than 0. 55% and that, consequently, they could not rely upon the presumption under Section 66 (2) of the Act, that the substance, which the accused had consumed, was prohibited liquor. He, therefore, acquitted the accused. Against the order of acquittal the State has filed this appeal.
(2.)SUB-SECTION (1) of Section 129-A of the Act, provides that when 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 consumea 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 Police Officer may produce such person before a registered medical practitioner 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. Subsection (2) provides that 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; and that the Chemical Examiner or Assistant Chemical Examiner to Government, shall certify the result of the test of the blood forwarded to him, stating therein the percentage of alcohol and such other particulars as may be necessary or relevant. Section 129-B states that any document purporting to be a certificate under the hand of a registered medical practitioner, or the Chemical Examiner or Assistant Chemical Examiner to Government, under Section 129-A, may be used as evidence of the facts stated in such certificate in any proceedings under this Act, but that 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. This section, therefore, makes a certificate issued by a Chemical Examiner admissible in evidence. Ordinarily no certificate issued by a person can be admitted in evidence, unless that person is examined as a witness. Section 129-B, however, permits the certificate issued by a Chemical Analyser being used as evidence in support of the facts stated therein, even though the Chemical Analyser has not been examined and has not given evidence. Consequently, if such a certificate is produced by the prosecution, it must be admitted in evidence and must be treated as part of the evidence in the case even though the Chemical Analyser has not teen examined.
(3.)THE next question to be considered is what weight should be attached to such a certificate, if the Chemical Analyser has not in his certificate disclosed the factual data, on which his conclusion is based, or the reasons in support of his conclusion. This would depend on the facts of each case. The question, whether the concentration of alcohol in the blood of the accused person exceeded the limit specified in Sub-section (2) of Section 66, is for the Court to decide. In order to decide this question, the Court will take into consideration such evidence as may be produced before it. Section 129-B only authorises the facts mentioned in the certificate issued by the Chemical Examiner being proved by the production of that certificate. It does not say that the certificate shall be conclusive proof of the facts stated therein. If the only evidence before the Court is the certificate of the Chemical Analyser, and if that certificate is not challenged, it would be open to the Court to accept that evidence and draw the presumption referred to in Sub-section (2) of Section 66. It cannot, however, refuse to consider the evidence furnished by the certificate, merely because it does not mention the data, on the basis of which the Chemical Analyser arrived at the percentage of alcohol mentioned in his certificate, or because he has not given (he reasons for his conclusion. If the Court feels that it should have more information in order to satisfy itself about the correctness or otherwise of the certificate, the Court should summon the Chemical Analyser or ash the prosecution to summon and examine him. But without examining the Chemical Analyser, the Court would not be justified in holding that the charge against the accused has not been proved, merely because the certificate issued by the Chemical Analyser only mentions the percentage of alcohol found in the blood of the accused and does not give any other particulars.