In Re: S. Chandrasekharan and Another

Somasundaram, J.—Thiru Chandrasekaran, the Petitioner in C. R. C. No. 1043 of 1971 was the Traffic Manager in the State Transport

Department at Nagercoil during the year 1970. Thiru Purushothaman, the Petitioner in C. R. C. No. 1110 of 1971 was the Traffic Superintendent.

Both these persons were seen by P. W. 2. the Sub-Inspector attached to the Kanyakumari Police Station, consuming arrack sitting in the Fiat Car

MSY 3628, at the junction of Kanyakumari Kovalam Road at 6.30 p.m. on the 5th August, 1970. Chandrasekaran had with him an aluminium

mug. Purushothaman was holding a glass-tumbler. P. W. 2 questioned them. There was a smell of arrack in their breath. The eyes were rad. One

white bottle with two ounces of arrack was found in the seat in between them. They has also two bottles kept in a plastic bag, in the back seat of

the car. Each bottle contained about 24 ounces of arrack P. W. 2 arrested them and seized these items. He then sent them to P, W. 1, the Civil

Assistant Surgeon attached to the Government Dispensary at Nagercoil for examination. The latter examined Chandrasekaran at 7.45 p. m. and

found the following symptoms:

There was smell of arrack in the breath.

His pupils were dilated,

His speech and gait were quite normal.

Similar symptoms were found on Purushothaman also. P.W. 1 opined that they had consumed liquor and stated that they were not under its

influence. Blood and urine of Chandrasekaran was sent for Chemical Analysis. 100 ml. of blood contained 92.0 Mgs. of alcohol, 100 ml. of urine

contained 107,0 mgs. of alcohol. For Purushothaman blood alone was sent. 100 ml. of blood contained 115 Mgs. of alcohol. P.W. 2 filed charge

sheets separately against them for offences under Ss. 4(1)(a) and 4(1)(j) of the Madras Prohibition Act. The Sub-Magistrate, Nagercoil convicted

the under both the Sections. On appeal, the District Magistrate set aside the conviction u/s 4(1)(a) but retained sentence of imprisonment till the

rising of the Court imposed u/s 4(1)(j) and reduced the fine to Rs. 50/- from Rs. 100.

The Petitioners now contend that they have been wrongly convicted.

The positive case put forward by the prosecution is that these two Petitioners consumed arrack on that day, sitting in the car. There is no proof

that what was consumed by them was arrack. The lower appellate Court has acquitted them of the charge under Ss. 4(1)(a) relating to the

possession of bottles of arrack. What all P. W. 1, the Medical Officer has stated is that these persons had consumed liquor. He does not assert

that what was consumed by them was arrack. He had sent the blood for chemical examination. In 100 ml. of blood, there was 115 mgs. of

alcohol. Ex. P. 2 is the report of the Chemical Examiner. P.W. 1 further admits that there are many medicinal preparations containing alcohol like

Sheri Cornis, which contains 15% of alcohol and glycere compound, which contains 18% of alcohol. He also admits that consumption of such

tonics also may cause symptoms similar to those that are caused in one consuming arrack. His further evidence is that in the blood there are

substances like acetone, ether, paraldehyde, etc., which are likely to be determined as alcohol so as to vitiate the test. He also states that he

applied spirit and extracted blood. Modi in his Medical Jurisprudence 15th Edition page 654, observes as below:

Certain substances such as acetone, ether, paraldehyde, etc., are at times present in the blood, and are likely to be determined as alcohol, and thus

vitiate the test. Besides, it is much easier to obtain a sample of urine than that of blood for examination. However, it is essential that the urine should

be collected in a sterile, chemically clean screw on pet bottle with a preservative, as in a warm weather bacteria can cause fermentation when kept

at room temperature for some days and give false high alcohol content.

P. W. 1 does not say that he adopted all these precautions in taking the blood and urine. There is a rule in the Bombay Prohibition Act, 1949

indicating the manner in which blood should be collected for the purpose of testing. It is as below:

Manner of collection and forwarding of Blood- (1)The registered medical practitioner shall use a syringe for the collection of the blood of the

person produced before him under R. 3. The syringe shall be sterilized by putting it in boiling water before it is used for the aforesaid purpose. He

shall clean with sterilized water and swab the skin surface of that part of such person''s body from which he intends to withdraw the blood. No

alcohol shall be touched at any stage while withdrawing Hood from the body of the person. He shall withdraw not less than 5 cc. of venous blood

in the syringe from the body of the person. The blood collected in the syringe shall then be transferred into a phial containing anticoagulant and

preservative and the phial shall then be shaken vigorously to dissolve the anti-coagulant and preservative in the blood. The phial shall be labelled

and its cap sealed by means of sealing wax with the official seal or the monogram of the registered medical practitioner.

The sample blood collected in the phial in the manner stated in sub-R. (1) shall be forwarded for test to the Testing Officer either by post or with

a special messenger so as to reach him with seven days from the date of its collection. It shall be accompanied by a forwarding letter in Form ''B''

which shall bear a facsimile of the seal or monogram used for sealing the phial of the sample blood.

There is no such rule in the Madras Prohibition Act. The rule shows the precaution that should be taken by the Medical Practitioner when taking

blood for purposes of testing and analysis. P. W. 1 does not say that he adopted any of these precautions. He admits that he had used spirit for

extracting blood. The blood was taken on 5th August, 1970 and the report is dated 10th February, 1971. There is nothing to indicate the exact

date when this blood and urine were examined and as to whether any preservative was put into by P. W. 1. The result revealed in the blood test in

this case cannot be very much relied upon for holding that these Petitioner have consumed arrack.

P. W. 2 claims to have seized the bottle which contained the arrack, which according to him was consumed by these two persons on that date

sitting in the car. Two other bottles which contained arrack also were seized by him. The contents of these bottles where not examined chemically

to find out as to whether they contained arrack. On the other hand, the lower appellate court has acquitted the Petitioners of the charge u/s 4(1)(a)

or the Prohibition Act.

""For proper conviction of a person u/s 4(1)(j) for consumption of illicit liquor, the prosecution has to discharge the burden of proof that the

liquor consumed by him was prohibited and it was not of some unprohibited variety. The evidence of the Doctor, that he was unable to state

categorically whether the offender had consumed prohibited liquor or otherwise, particularly when he examined an alleged drunkard sometime

afterwards, would only prove that the accused had consumed alcohol, but would not exclude some other mode of proof by the prosecution that

the alcohol consumed was of prohibited variety. .... Palaniswamy In re. AIR 1965 Mad. 414 and also 1960 M.W.N. Crl. 88. ""The symptoms of

dilation of pupils, sluggish reaction of pupils to light, smell of alcohol in the breath, congestion of eyes etc., were not at all conclusive on the point

that the liquor consumed was of the prohibited variety."" Vide Palaniswamy, In re. AIR 1965 Mad. 414 and also 1960 M.W.N. Crl. 88.

What all the prosecution has proved in this case is that when examined by P. W. 1, the Medical Officer, there was smell of alcohol in the breath of

these Petitioners, whose pupils were also dilated. This is not sufficient.

The prosecution has not discharged the burden of showing that these Petitioners had consumed prohibited liquor. The convictions and sentences

imposed on the Petitioners are set aside and they are acquitted of the offences of which they stand convicted. The fine, if any collected, shall be

refunded.

The revisions are allowed.