Gujarat High Court
Prakashbhai Ramjibhai Sutariya vs State Of Gujarat on 2 May, 2025
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION)
NO. 9 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
==================================================
Approved for Reporting Yes No
✔
==================================================
PRAKASHBHAI RAMJIBHAI SUTARIYA
Versus
STATE OF GUJARAT
==================================================
Appearance:
MR. DHAVAL G BAROT(6546) for the Applicant(s) No. 1
SANKET K PANDYA(9451) for the Applicant(s) No. 1
MR. HARDIK SONI, APP for the Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVED
Date : 02/05/2025
ORAL JUDGMENT
[1] The present revision application is filed under Section 397
read with Section 401 of the Criminal Procedure Code, 1973
(hereinafter referred to as "the Code") assailing the order dated
15.12.2017 passed by the learned District and Sessions Judge,
Sabarkantha (hereinafter referred to as "the learned Appellate
Court") in Criminal Appeal No.47 of 2016, inter alia, rejecting
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
the appeal preferred by the applicant and confirming the order
dated 25.11.2016 passed by the learned 4 th Additional Civil
Judge, Himmatnagar (hereinafter referred to as "the learned
Trial Court") in Criminal Case No.2141 of 2013 for offence
punishable under Section 66(1)(b) of the Bombay Prohibition
Act, 1949.
[2] The brief facts leading to the filing of the present revision
application are that on 08.01.2013, at about 15:00 hours, it was
alleged that the revisionist went to the office of Gujarat State
Road Transport Corporation, Divisional Office, Himmatnagar in
an intoxicated condition without permit or pass for the
possession or consumption of an intoxicant substance. It was
also alleged that the revisionist started abusing in public place
and was found to be in an intoxicated and aberrant condition on
08.01.2013 at 15:00. This resulted into the lodgement of the
First Information Report being III-C.R.No.5009/2013 before the
Himmatnagar Town Police Station under Sections 66(1)(b) and
85(1)(C) of the Bombay Prohibition Act, 1949 and Section 110 of
the Gujarat Prohibition Act. The revisionist was arrested by the
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
police from the public place, and thereafter, he was taken to
General Hospital Himmatnagar for medical examination.
[2.1] Pursuant to the examination, investigation was carried out
and charge-sheet papers came to be filed by the prosecution.
The case was registered as Criminal Case No.2141 of 2013
before the learned Trial Court. The charges were framed and
witnesses were examined by the learned Trial Court.
Subsequent to the examination of the witnesses, filing of closing
pursis and recording of statement under Section 313 of the
Code, the learned Trial Court found the revisionist guilty of
offence punishable under Section 66(1)(b) of the Bombay
Prohibition Act. Accordingly, the revisionist was convicted and
sentenced to one month simple imprisonment along with a fine
of Rs.500/-.
[2.2] Being aggrieved with the order dated 25.11.2016 passed
by the learned Trial Court, the revisionist challenged the said
order by way preferring an appeal, being Criminal Appeal No.47
of 2016 before the learned Appellate Court. The learned
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
Appellate Court confirmed the conviction passed by the learned
Trial Court. However, the learned Appellate Court had modified
the sentence to the extent that the revisionist - applicant had to
render community service for one month at the General
Hospital, Himmatnagar instead of simple imprisonment of one
month. Further, a fine of Rs.500/- was enhanced to Rs.1000/-.
This order passed by the learned Appellate Court is assailed in
the present revision application.
[3] Heard Mr. Sanket K. Pandya, learned advocate appearing
for the applicant and Mr. Hardik Soni, learned Additional Public
Prosecutor appearing for the respondent - State.
[4] The main crux and submission of Mr. Sanket K. Pandya,
learned advocate appearing for the applicant is that there is a
breach of procedure prescribed under Rule 4 of the Bombay
Prohibition (Medical Examination and Blood Test) Rules, 1959
(hereinafter referred to as "the Rule"), which has to be followed
by the registered medical practitioner in a manner as
prescribed in the Rule. It was submitted by Mr. Pandya, learned
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
advocate appearing for the applicant that Rule 4 of the Rule was
not categorically followed. The syringe which was required to
be sterilized before taking the medical test was not done as
required under Rule 4. It was further submitted that while
submitting Form-C, forwarding letter was not attached and,
therefore, there was a breach of Rule 4. It was further
submitted by Mr. Pandya that the panch witness had turned
hostile and there were procedural lacuna by the investigating
agency. In wake of such submission, Mr. Pandya, learned
advocate appearing for the applicant has prayed that the orders
passed by the learned Trial Court as well as learned Appellate
Court suffer from anomalies and infirmities, and therefore, are
required to be quashed and set aside.
[5] Per contra, Mr. Hardik Soni, learned Additional Public
Prosecutor has submitted that the incident occurred in a public
place and the revisionist - applicant had created a ruckus at a
public place. He was in an aberrated and intoxicated condition.
The procedure has been properly followed and the medical test
has been done as per the provisions of law. Witnesses and
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
medical practitioners are examined and Form- A, B & C are on
record. All the procedure as required by the investigating
agency and by the prosecution is produced on record. Mr. Soni,
learned Additional Public Prosecutor has also submitted that
there is a concurrent finding, therefore, in the limited scope of
revisional jurisdiction, there cannot be any perversity in the
judgment and order passed by the learned Trial Court and the
learned Appellate Court. On the basis of such submissions, Mr.
Hardik Soni, learned Additional Public Prosecutor has requested
to dismiss the present revision application.
[6] Having heard learned advocates appearing for the
respective parties and perused the document on record, it can
be observed that the incident took place in a public place and
there are witnesses to the incident. The main thrust of the
argument canvassed by the learned advocate for the applicant is
with regard to breach of Rule 4. For ready reference, Rule 4 of
the Rule is reproduced hereinafter:-
"4 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
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
produced before him under rule 3 the syringe shall be
sterilised by purring in boiling water before it is used for
the aforesaid purpose. He shall clean with sterilized water
and swab the skin surface of the part of such person's
body from which he intends to withdraw the blood. No
alcohol shall be touched at any stage while withdrawing
blood from the body of the person. He shall withdraw not
less than 5 c. c. 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 anti-coagulant
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.
(2) The sample blood collected in the phial in the
manner stated in sub-rule (1) shall be forward for test to
the Testing Officer either by post or with a special
messenger so as to reach him within seven days from the
date of its collection. It shall be accompanied by a
forwarding letter in form 'B' which shall bear a fascimile of
the seal or monogram used for sealing the phial of the
sample blood."
[7] As far as submission with regard to the forms are
concerned, it has come on record that Form- A, B & C were
having proper seal and signatures as required by law. These
forms have also been duly exhibited and produced on record.
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
Therefore, there cannot be any infirmity for the procedure of
requisite forms. Further, it can be observed that the incident
happened on 08.01.2013. The sample was taken immediately,
thereafter sent for analysis on 11.01.2013 and the report was
made on 12.01.2013. Hence, all the parameters laid down
under Rule 4 were followed. As far as compliance of Rule 4 of
the Rule, there is categorical finding given by the learned Trial
Court as well as the learned Appellate Court. The finding
rendered is as below:
"13. Considering the contention raised by the learned
advocate for appellant - accused, in the light of oral as
well as documentary evidence of Medical Officer Dr.
Darshanaben Kantilal Tabiyad (Exh. 13) and documentary
evidence produced by her, it can be said that on
08/01/2013, at about 3:55 p.m., the appellant - accused
was brought before her by Head Constable Taljabhai
Odharbhai Desai along with the Police Yadi and while
examining him clinically by the said Medical Officer, she
also found that the breathing of appellant - accused
was also with smell of alcohol. His pupils of eyes
were diluted. His speech was incoherent and he was
also unstable. So clinically the Medical Officer also
found that he had consumed alcohol. Therefore, a
blood sample was taken by her and the said blood
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
sample, after sealing and labelling, was sent to the
Forensic Science Laboratory, Gandhinagar. The
Medical Officer has specifically deposed the
procedure adopted by her for taking the blood
sample from the body of the appellant - accused and
has also produced Form A and B prescribed as per
the Prohibition Act and Rules. While going through
the oral as well as documentary evidence of said
Medical Officer, in the light of the cross-
examination, it can be said that the Rule 4 of
Bombay Prohibition (Medical Examination and Blood
Test) Rules, 1959 has been substantially complied
with by her while taking the blood sample from the
body of the appellant - accused. She has stated in
her deposition that before taking the sample of
blood from the body of appellant - accused, she had
used disposable syringe and needle and for taking
the said blood sample, the part of his hand from
where she had taken blood sample was cleaned by
1% Gentian Violet and she had taken 5-cc blood
sample from his body which was transferred in a
sterilized phial contained with preservative of
Mercury Chloride and anticoagulant and after
sealing the phial with seal of hospital, she had
prepared Form A and thereafter, with Form B, the
said sample was sent to Forensic Science Laboratory
on 08/01/2013 and she has also produced Form A, B,
C vide Exh. 15, 16 and 17 and also specifically
deposed that while taking the sample from the body
of the accused, she had taken all precautions not to
touch to the spirit or alcoholic substance. Thus, the
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
Medical Officer has deposed about the procedure
adopted by her while taking the blood sample from
the body of the appellant - accused.
14. The witness has been cross-examined on
behalf of the appellant - accused, but nothing has
been brought on record to disbelieve the evidence
led by the witness, the Medical Officer. In cross-
examination, she has admitted that she is MBBS and
in hospital, there is also MD Pathologist. For
sterilizing a syringe and needle, 50 to 60 minutes'
time is required. Before sending the phial to
Forensic Science Laboratory, it is kept in personal
custody. She also admitted that in medicine of
cough, normally alcohol presented and in Form C,
there is no mentioning of the letter number and
date. So on the basis of the additional facts brought
on record through the cross-examination, it can be
said that nothing has been brought on record to
disbelieve the evidence of Medical Officer.
15. It is true that there is some contradiction in
oral as well as documentary evidence Form B and C,
but that contradiction is not material and it is
happened due to the change of the address of the
Forensic Science Laboratory as well as new practice
of adopting disposal syringe and needle for taking
blood sample. The Medical Officer had used disposable
syringe and needle for taking blood sample from the body
of the appellant - accused, while in the Form B which is
prescribed by the Rules, it is mentioned that the syringe
used for the collection of blood was sterilized by putting it
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
into boiling water before its use. The Rules framed under
the Bombay Prohibition Act for taking the blood sample
are of 1959. At that time, the disposal syringe and
needles were not available, but since several years,
the disposable syringe and needle are available and
normally in all hospitals and clinics, the disposable
syringe and needles are used for taking blood
sample and also for injecting medicines. The said
disposable syringe and needles are sterilized by the
manufacturing company itself and it is kept in
sealed plastic bag. The said syringe and needles are
normally brought out just before taking blood
sample. Therefore, there is no possibility of being
tampered the said syringe and needles by any substance
including alcoholic alcoholic substance. substance. The
The main object behind making the Rule of using
sterilized syringe and needle is to protect the right of the
accused and when the disposable syringe and needle are
used, the right of the accused is protected. Therefore, it
can be said that though the syringe and needle were not
sterilized as per the provision of the Rule before taking
the blood sample from the body of the appellant - accused,
it cannot be said that there is a breach of the said Rule,
but it can be said that the substantial compliance of the
said Rule has been made by the Medical Officer while
taking the blood sample from the body of the appellant -
accused. Therefore, the contention of the learned
advocate for appellant - accused that because the syringe
and needle used for taking the blood sample from the
body of the accused were not sterilized before using them,
there is a breach of Rule 4, cannot be accepted.
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
16. It is true that in Form B, which is prescribed and
printed, the name of Forensic Science Laboratory has
been mentioned as the Director, Regional Forensic
Science Laboratory, New Mental Hospital Corner, Asarwa,
Ahmedabad, while in Form C, it is mentioned that the
report is of Directorate of Forensic Science, Gujarat State,
Sector 18-A, Gandhinagar and it is also signed by
Scientific Officer, Directorate of Forensic Science-cum-
Assistant Chemical Examiner to Government of Gujarat,
Gandhinagar. So it can be said that there is some
contradiction regarding the Forensic Science Laboratory.
As per the Form B, blood sample was sent to Forensic
Science Laboratory, Ahmedabad, while the report is given
by Forensic Science Laboratory, Gandhinagar, but that is
not a material contradiction and it is happened due to the
change of the address and location of the Forensic
Science Laboratory subsequently. In printed Form C, the
address of the Forensic Science Laboratory remained
unchanged and of old location and address. But in fact the
blood sample was sent to the Forensic Science
Laboratory, Gandhinagar and the report is also sent by
Chemical Examiner of Forensic Science Laboratory,
Gandhinagar. While going through the Form B and C,
it can be said that the bood sample was sent to the
Forensic Science Laboratory immediately on the next
day of taking of the blood sample and it was received
by the Forensic Science Laboratory, Gandhinagar on
11/01/2013 through Registered Post AD and the
analysis was made on very next day i.e. on
12/01/2013. In Form C, it is mentioned that the
blood sample contained 0.0964 gram percent W/V of
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
Ethyl Alcohol. Therefore, it can be said that the
percentage found in the blood sample of the
appellant accused was more than prescribed in the
Rules. It is undisputed fact that the appellant - accused
was not holding any licence to consume the alcohole or
liquor. Therefore, on the basis of the oral as well as
documentary evidence, it can be said that the Rules
including the Rule 4 of Bombay Prohibition (Medical
Examination and Blood Test) Rules, 1959 has been
substantially complied by the Medical Officer as well as
prosecution and there is no breach of mandatory
provisions of said Rules including Rule 4. Therefore, the
contention of the learned advocate for the appellant -
accused cannot be accepted. The learned Magistrate has
also considered the whole evidence brought on record by
the prosecution. His order and judgment is quite detailed,
though the case is required to be tried summarily and the
learned Magistrate has not committed any error in
holding that the Rules of Bombay Prohibition (Medical
Examination and Blood Test) Rules, 1959 are duly
complied with including the Rule 4 of the said Rules and
the prosecution has proved charge of the offence
punishable under Section 66 (1)(b) of Prohibition Act
beyond reasonable doubt. Therefore, the contention raised
by the appellant through appeal memo as well as oral
submission cannot be accepted."
[8] Therefore, the findings itself are sufficient enough for
showing the proper compliance as envisaged in the Rule.
Accordingly, the submissions made by Mr. Sanket K. Pandya,
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
learned advocate appearing for the applicant cannot be
accepted.
[9] The revisional jurisdiction under Section 397 of the Code
is a limited jurisdiction exercisable if the court below has
committed a manifest illegality or the findings are perverse and
based on misreading of evidence resulting into miscarriage of
justice. The principles for exercise of revisional jurisdiction
under Section 397, Cr.P.C. were highlighted in D. Stnbens Vs
Nosibolla [1951 SCR 284] as also in K.C. Reddy Vs State of
Andhra Pradesh [1963 SCR 412]. In State of Maharashtra
Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004)
7 SCC 659], the Apex Court reiterated that the revisional
power of the High Court under Sections 397 and 401, Cr.P.C.
cannot be exercised as a second appellate power and that the
High Court cannot, while exercising the revisonal power,
undertake in-depth and minute re-examination of entire
evidence and upset concurrent findings of the trial court and
first appellate court.
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
[10] Keeping in view the parameters for exercise of revisional
jurisdiction, it could not be said that the orders passed by the
courts below and the concurrent findings arrived at, were
proper. They were factual in nature. The courts below could not
be said to have committed any error in holding that the offence
was committed. There was no material error in the concurrent
finding recorded by the courts below. The learned advocate for
the applicant has not been able to demonstrate any ground that
would persuade this Court to interfere with the impugned
judgment and order.
[11] Further, it can be observed that the learned Appellate
Court has rightly sentenced the revisionist - applicant for a
community service. Therefore, even though there is a
conviction, the revisionist - applicant is only sentenced for
community service. This itself reflects the reformative theory
approach by the learned Appellate Court. Therefore, there
remains no doubt in the mind of this Court that the order passed
by the learned Appellate Court is just and proper.
NEUTRAL CITATION
R/CR.RA/9/2018 JUDGMENT DATED: 02/05/2025
undefined
[12] In view of the observations made bereinbelow, the present
revision application is meritless and is hereby dismissed with no
order as to costs. Rule is discharged.
[13] The revisionist - applicant is required to follow the
directions as given by the learned Appellate Court by way of
order dated 15.12.2017. The revisionist - applicant shall execute
bond for rendering community service of Rs.10,000/- (Rupees
Ten Thousand Only) with personal and surety bond for due
compliance of the order of community service as per the Rule 5
the Gujarat Rendering of Community Service in lieu of sentence
of imprisonment (prescribing the form of bond, nature of the
community service and the terms and conditions) Rules, 2005.
[14] Record and proceedings along with a certified copy of this
judgment be sent back to the learned Trial Court.
Sd/-
(PRANAV TRIVEDI, J.)
DHARMENDRA KUMAR
