HARSUKHBHAI MOHANBHAI TERAIYA vs STATE OF GUJARAT
- Court
- Gujarat High Court
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 93
of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
Approved for Reporting Yes No
==========================================================
HARSUKHBHAI MOHANBHAI TERAIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VIRAL J VYAS(6233) for the Applicant(s) No. 1
MR. ZALAK B PIPALIA(6161) for the Applicant(s) No. 1
MR. YUVRAJ BRAHMBHATT ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/07/2026
ORAL JUDGMENT
1. Heard Mr. Zalak B. Pipalia, learned advocate on record
for the applicant-original accused. Mr. Yuvraj Brahmbhatt,
learned APP has appeared on behalf of the respondent
State.
2. The present Revision Application is filed at the instance of
the original accused under Section 397 read with Section
401 of the Code of Criminal Procedure, 1973, against the
judgment and order dated 18.01.2019 passed by the
Page 1 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
learned 4 th Addl. Sessions Judge, Junagadh, in Criminal
Appeal No. 56 of 2018 and the judgment and order dated
13.07.2018 passed by the learned Judicial Magistrate, First
Class in Mendarda in Criminal Case No. 158 of 2017.
3. The learned Sessions judge by the aforesaid impugned
judgment and order has dismissed the appeal preferred by
the present applicant under Section 374 of the Code
thereby upholding the order of conviction passed by the
learned Magistrate, convicting the present applicant for the
offence punishable under Section 66(1)(b) of the Gujarat
Prohibition Act, 1949. The learned Sessions Judge has also
upheld the sentence imposed by the learned Magistrate for a
period of 10 days simple imprisonment with a fine of Rs.
500 failing which the applicant-original accused was
directed to undergo further period of simple imprisonment
of 3 days. Hence, the present Revision Application at the
instance of the accused challenging the aforesaid orders of
conviction and imposition of sentence.
4. Considering the grounds raised in the Revision
Application, the learned Single Judge of this Court vide oral
order dated 31.01.2019 has admitted the Revision
Page 2 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
Application, prima facie considering the issue of compliance
of Rule 3 and 4 framed under the provisions of Prohibition
Act under consideration. Pending the hearing and final
disposal of the present application, the learned Single Judge
had also granted interim relief in terms of 8(c) thereby
suspending the sentence imposed by the Courts below and
had also enlarged the applicant on bail.
5. The matter was notified for final hearing under special
assignment of old matters. With the able assistance of
learned advocates appearing on record for the respective
parties, the matter was heard finally.
6. Learned advocate Mr. Zalak Pipalia appearing on behalf of
the applicant has assailed the impugned judgment and
order of conviction, passed by the respective Courts by
submitting that the Courts have miserably failed to
appreciate the evidence of the Medical Officer in its right
perspective. The attention of this Court was invited to cross-
examination of the Medical Officer ( Exh. 11). From the
cross-examination of the said witness, learned advocate has
pointed out that it has been successfully brought on record
that the said Medical Officer had himself not drawn the
Page 3 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
blood sample from the applicant. He has admitted to the
suggestion of the defence that in the present case the blood
sample of the accused was drawn by the nursing staff under
his instructions and supervision. Learned advocate had
further pointed out that he has denied the fact that in the
present case the syringe was placed in the boiling water for
sterilisation before it was used. Referring to the aforesaid
evidence of the doctor, learned advocate had further drawn
my attention to Section 129A of the Prohibition Act, 1949 to
point out that in order to find that as to whether a person
has consumed an intoxicant, the police officer or the
prohibition officer is empowered to produce such person
before a registered medical practitioner for the purpose of
medical examination or for collection of drug and can also
seek a certificate on his finding as to whether such person
has consumed any intoxicant.
7. The attention of this Court was invited to the definition of
the term ‘registered medical practitioner’ as defined under
Section 2(38) of the Act. In view of the aforesaid provisions,
learned advocate has further referred to Rule 3 of the
Bombay Prohibition (Medical Examination and Blood Test)
Rules, 1959. According to the learned advocate, section
Page 4 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
129(A)(2) of the Act mandates a registered medical
practitioner to medically examine such a person as well as
for collection of his blood samples and to forward it in a
manner as prescribed under Rule 4. Referring to Rule 4,
learned advocate had submitted that considering the
language of the said provision, it is mandatory for the
registered medical practitioner to use the syringe for
collection of the blood of the person produced before him
under Rule 3. However, the syringe should be sterilised by
putting in the boiling water before it is used for the
aforesaid purpose. It was also mandatory for the registered
medical practitioner to himself withdraw the blood from the
body of the person being medically examined.
8. In order to substantiate his arguments, the learned
advocate has further placed reliance upon the decision of
the learned Single Judge in the case of Madahavarao
Bhagwandas Kharade Vs. The State of Gujarat reported
in 1971 (12) GLR 956. The observations made by this
Court as recorded in para 4 to 6 has been referred to and
relied upon. It was therefore emphasised that the aforesaid
rule being mandatory in nature, any breach in the
procedure with regard to collection of blood samples would
Page 5 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
make the Chemical Analyser report inadmissible in
evidence. In this regard, learned advocate had also placed
reliance upon Section 129B of the Prohibition Act. Learned
advocate has therefore, submitted that a palpable error has
been committed by the Courts below which calls for
interference of this Court in the revisional jurisdiction. He
has therefore urged this Court to record the acquittal by
quashing and setting the impugned judgment and order of
conviction.
9. Learned Addl. Public Prosecutor Mr. Yuvraj Brahmbhatt,
appearing for the respondent State has objected to the
aforesaid submissions made by learned advocate for the
applicant-original accused. Learned APP has invited my
attention to the findings and reasons recorded by the Courts
below. According to him, the Court has rightly appreciated
the evidence of the Medical Officer. The attention of this
Court was invited to the findings and reasons assigned by
the Courts below in this regard. He has further submitted
that there being concurrent findings on the aspect of the
offence being committed by the present applicant, and
considering the fact that a lenient view has already been
taken by the Courts below while imposing sentence confined
Page 6 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
to 10 days with fine of Rs. 500/-, this Court may not
interfere with the impugned judgment and order of
conviction or sentence. He has, therefore, urged to dismiss
the present Revision application.
10. I have heard the learned advocates appearing for the
respective parties. I have carefully considered their
arguments in light of the findings and reasons assigned by
both the Courts. I have also gone through the relevant
evidence on record, more particularly the evidence of the
Medical Officer (Exh. 11) and the report of the Chemical
Analyser produced on record. Considering the arguments
made by learned advocates for the respective parties, the
short question which falls for consideration of this Court in
the present revision application is as to whether any error
has been committed by the Courts below while convicting
the present applicant for the offence punishable under
Section 66(1)(b) of the Gujarat Prohibition Act, 1949?.
11. The core contention which has been raised for the
consideration of this Court is as to whether the mandatory
procedure prescribed under Rule 4 of the Bombay
Prohibition (Medical Examination and Blood Test) Rules,
Page 7 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
1959, has been scrupulously followed while collecting the
blood sample of the applicant by the Medical Officer. It
would be appropriate to revisit the relevant provisions.
11.1 As rightly submitted by learned advocate for the
applicant, Section 129A of the Gujarat Prohibition Act,
1949, empowers the prohibition officer or any police officer
who has reason to believe that a person has consumed an
intoxicant to get him medically examined in order to
establish that he has consumed an intoxicant. Thus, for the
purpose of procuring evidence, he may subject the person
for medical examination or for collection of blood samples in
order to determine the percentage of alcohol therein. The
prohibition officer or the police officer can also request the
registered medical practitioner to furnish a certificate on his
finding as to whether such person has consumed an
intoxicant and to forward the blood collected by him for
analysis purpose to a chemical examiner or Assistant
Chemical Examiner of the State. The said provision further
mandates the registered medical practitioner before whom
such person is produced to be examined as well as to collect
and forward the blood sample as well as to furnish the
certificate in this regard.
Page 8 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
11. 2 On the other hand, the chemical examiner is also
required to certify the result of the test of the blood
forwarded to him precisely stating the percentage of alcohol
and such other particulars as may necessary. It is required
to be noted that the State Government in exercise of power
conferred by clause W of sub section (2) of Section 143 of
the Bombay Prohibition Act, 1949 has framed rules called
the Bombay Prohibition (Medical Examination and Blood
Test) Rules, 1959. The term ‘registered medical practitioner’
has been defined under Rule 2 which means any registered
medical practitioner authorized by general or special order
by the State Government under sub section 1 or 4 of
Section 129 A of the Act. Rule 3 provides medical
examination of a person produced under sub section (1) of
Section 129 of the Act by registered medical practitioner for
the purpose of medical examination of the person so
produced before him as well as for the collection of his
blood. The said rule has to be read in sync with Rule 4
which deals with the prescribed procedure with regard to
the manner of collection and forwarding of blood samples.
Rule 4 thus reads as under:
4. Manner of collection and forwarding of blood .-(1) The
Page 9 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
registered medical practitioner shall use a syringe for the
collection of the blood of the person produced before him under
rule 3. The syringe shall be sterilized by putting in the boiling
water before it is used for the aforesaid purpose. He shall
clean with 1% aqueous solution of mercurochrome or genitor
violet, not containing alcohol or its solution 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 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 anticoagulant
and preservative and the phial shall then be shaken vigorously
to dissolve the anticoagulant 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 (11) shall be forwarded 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 facsimile of the seal or monogram used for sealing
the phial of the sample blood.
3
11. In the case of Vrajlal Damodar v. State (1971) 12 Guj
Page 10 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
LR 68 had an occasion to consider provisions of Rule 4(1) of
the Rules. Considering Rule 4, the learned Judge observed
at page 69 as under:
“ That the requirement of the rule is mandatory is obvious.
The discernible purpose of the rule is to ensure that the blood
sample collected by the medical practitioner is collected in
such a manner that no alcohol is introduced in the blood
sample in the process of collecting the blood. If alcohol is
allowed to be introduced in the blood sample from extraneous
sources at the time of collecting the sample the very purpose
of subjecting the blood sample to chemical examination would
be rendered nugatory. So also the legislature wanted to
ensure that anticoagulant and preservatives were added to
the blood sample and the sample was properly sealed so that
there was guarantee that the chemical analysis made and
the identity of the Mood sample could be ensured. It may be
observed that not every direction incorporated in Rule 4(1)
can be characterized as mandatory. However, the
requirement regarding taking precautions to secure that no
alcohol shall be touched at any stage while withdrawing the
blood from the body of the person and the requirement
regarding dissolving the anticoagulant and preservative in
Page 11 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
the blood is mandatory in its character. It may not be
understood that a literal compliance with every part of the
rule should be considered as a mandatory requirement For
instance, the rule enjoins that "the phial then shall be shaken
vigorously". This cannot be said to be a mandatory
requirement. It would not be necessary for the prosecution to
show that the phial was shaken vigorously. It is also not
necessary that the doctor who is examined shall keep before
him the text of the rule and should depose to having complied
with every small requirement enjoined by the rule and having
performed every part of the act in accordance with the
procedure prescribed .”
Considering the provisions and the legal principles, it
is apparent that the registered medical practitioner has to
scrupulously follow the procedure prescribed thereunder
and any breach in the procedure may prove fatal to the
prosecution to bring home the charge of offence under
Section 66(1)(b) of the Prohibition Act. In other words there
is no window of any leverage and the medical officer was
expected to follow the procedure prescribed for collecting the
blood samples.
Page 12 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
12. It is apparent from the cross-examination of the Medical
Officer that the syringe which was used in drawing the
blood samples has not been placed in the boiling water.
Secondly, the Medical Officer has fairly conceded to the
suggestion put by learned counsel for the defence that he
himself had not withdrawn the blood samples but the
nursing staff around had drawn the blood samples under
his supervision. With such evidence on record, it cannot be
said that the mandatory procedure prescribed under Rule 4
has been followed by the Medical Officer. In such
circumstances, there are chances of the sample being
tampered. As this mandatory requirement is not found to
have been complied with in the present case, it must be
held that it has introduced a very serious infirmity in the
process of collection and despatch of the sample blood for
analysis to the Chemical Analyser, Junagadh.
Consequently, the contents of the report of the chemical
analyser Ex. 14 based on the sample sent to him by the
medical officer, Kheralu in sofa as it mentions alcohol
content at Order 1426% in the sample blood cannot be of
any evidentiary value and cannot be relied upon. It is
required to be noted that once such a conclusion is reached,
Page 13 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
the presumption under Section 66(1)(b) would not be
available to the prosecution. Consequently, once that
presumption goes out, in absence of any other evidence
being brought on record by the prosecution to bring home
the guilt to the accused, the acquittal is bound to follow.
The prosecution has indisputably led no other evidence to
show how independent of such presumption, the accused is
shown to have consumed alcohol or other intoxicant as
alleged against him. Even evidence of the Medical Officer
about medically examined accused states that the accused
was smelling of alcohol is neither here nor there when in
cross examination he has admitted that the accused was
speaking clearly and his speech was not slurring and his
physical posture was composed. With such evidence on
record, in my view though the chemical analyser report has
been brought on record, confirming the presence of alcohol
in the blood sample however, with such lacunas found in
the procedure being followed by the Medical Officer while
withdrawing the blood sample, considering overall
circumstances on record, the benefit of doubt is required to
be extended to the applicant.
13. For the foregoing reasons, the Revision Application is
Page 14 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026
R/CR.RA/93/2019 JUDGMENT DATED: 09/07/2026
allowed. The impugned judgment and order dated
13.07.2018, passed by the Judicial Magistrate First Class,
Mendarda in Criminal Case 158 of 2017 convicting the
applicant for the offence punishable under Section 66(1)(b)
of the Gujarat Prohibition Act and the judgment and order
passed by the learned Sessions Judge, Junagadh dated
18.01.2019 in Criminal Appeal 56 of 2018 are therefore
quashed and set aside
14. With these observations, the Revision Application stands
disposed of. Record and proceedings to be sent back
forthwith to the concerned Court.
(NISHA M. THAKORE,J)
MARY VADAKKAN
Page 15 of 15
Uploaded by MARY VADAKKAN(HC00204) on Mon Jul 13 2026 Downloaded on : Mon Jul 13 14:06:51 IST 2026