LexPANDIT UKHA KOLHE versus THE STATE OF MAHARASHTRA
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926 SUPREME COURT REPORTS [1964] VOL. 1963 PANDIT UKHA KOLHE p,hfuary1 111 v. , THE STATE OF MAHARASHTRA (B. P. SINHA, c. ]., P. B. GAJENDRAGADKAR, I ' K. :N. WA:!)CHOO, K. c. DAS GUPTA and J.C. SHAH, JJ.) -- Griminbl--'f.'.rial-,-Offence under Prohibition Ad-Blood taken before start of inve.tiyation-Report •f Gliemical Examiner-Procedure prescribeil not- followed-Admissibility of report-R•-lrial, when can be orrlered:_Bombay Prohibition Act, 1940 (Bom. 25 of [9~11) '8. G6, 12:/A, 129B-God< of Criminal Procedure, 1891! (Act .5 of 1808), ss,_ ~8,_.510. On account of injuries received in a motor accident the appellant was taken to the hospital at 6 A. M. on April 3, 196!. 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 rn. vestigation Officer on April 13 and sent to the Chemical Exa.111incr on April 18. -On examination, it was found to ha\'e a concentration of alcohol in excess of that mentioned in s. 66 (2) of Bombay Prohibition Act. The trial Court con- victed the appellant relying upon the pr.,sumption arising on the report of the Chemical Examiner. On appeal, the Sessions Judge found that nc evidence hap been produced regarding ihe,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 antl regarding its delivery to the Chemical l~xan1iner, and ortlcred a retrial. This order was upheld by th" High Court, The appellant contended (i) that the report of the Chemical Examiner \Vas not admissible in -evidence at the trial of the appellant for an offeQce under the Bombay Prohibition Act as the blond had not be~n collected in the manner prescribed by .,' 129 A, and (ii) that the order for a fresh trial was illogal. Held, (per Sinh~, C. J., Gajendragadkar, · Wanchoo and Shah JJ., Das Gupta, J. contra) that the report of the Chemical Examinei ·was admissible in evidence. Section 12QA was intended· primarily for compelling a person to submit himself for medical examination and for collection of blood; this power could be exercised only in the course of investigation of an offence under t'be Act and only when 11 - .. • 1 S ;C.R. SUPREME COURT REPORTS 927 Prohibition Officer or a Police Officer had reasonable ground for believing that a person had consumed liquor. If tho examination of · blood is made otherwise than in accordance with s. 129 A the result may still be proved by virtue of sub- s. (8) to s. 129 A and there is nothing ins. 129A ors. 129B which precludes proof of that fact if it tends to establish that the person had consumed illicit Jiquor. By enacting ss. 129 A and l29B the law provided one method of collection of evidence in respect of an offence under s. 66 (2) but it d id 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 Pre.ident and had received his assent prevailed, in the State of Bombay, overs. 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 in- vestiration of an offence under the Act otherwise than in the manner set out in s. l 29A cannot be used in evidence, but a report in respect of blood collected at a time when no investiga- tion 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. Tf,e King Emperor, (1936) L. R. 63 I.A. 372,. Taylor v. Taylor, (1875) 1 Cb. D. 426, Deep Chand v. 8!11,te of Uttar Prade.h, [1959] Supp. 2 S. C.R. 8 and Oh, Tikaramji v. State of Uttar Prade.h, (1956] S. C.R. 393, referred to. Held, further, that the order for retrial was bad and that the Sossions 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 exposes 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 ·· .ppellate court is satisfied that the trial court had no jurisdic- tion to try the case. or that the trial was vitiated by serious illegalities or irregularities or on
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