Blood-alcohol proof and retrial limits clarified: admissible chemical reports can support presumption, and appeals should take further evidence instead of retrial.

A chemical examination report of blood collected outside the procedure under section 129A of the Bombay Prohibition Act, 1949 was held admissible for invoking the presumption under section 66(2), because section 129A was not treated as the exclusive mode of proof and relevant reports remained admissible under the general law of evidence. The Court also held that retrial is an exceptional remedy and should not be ordered merely to cure evidentiary deficiencies; where further evidence is needed, the appellate court should ordinarily permit additional evidence and then decide the appeal. A dissenting opinion considered section 129A to be the only permissible method of proof and favoured acquittal.

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Issues: (i) Whether the report of chemical examination of blood collected outside the procedure prescribed by section 129A of the Bombay Prohibition Act, 1949 could be relied upon to invoke the presumption under section 66(2); (ii) whether the Sessions Court was justified in ordering a retrial instead of permitting additional evidence in appeal.

Issue (i): Whether the report of chemical examination of blood collected outside the procedure prescribed by section 129A of the Bombay Prohibition Act, 1949 could be relied upon to invoke the presumption under section 66(2).

Analysis: The majority held that section 66(2) creates a presumption once concentration of alcohol in blood above the prescribed limit is proved, but section 129A is not the only mode of proving that fact. Section 129A is primarily designed to compel medical examination and blood collection in the course of investigation, while section 129B and the general evidentiary provision of the Criminal Procedure Code preserve admissibility of relevant reports where blood was collected before investigation began and not under the statutory procedure. The exclusionary argument based on the special procedure was therefore rejected.

Conclusion: The report was admissible and the prosecution was not confined exclusively to the procedure under section 129A.

Issue (ii): Whether the Sessions Court was justified in ordering a retrial instead of permitting additional evidence in appeal.

Analysis: The majority held that retrial is an exceptional course and is not to be ordered merely because the prosecution failed to adduce or properly appreciate available evidence. Where the appellate court finds that further evidence is necessary for a just decision, the proper course is to take or permit additional evidence in appeal rather than wipe out the earlier trial altogether.

Conclusion: The order for retrial was set aside and the matter was directed to be heard afresh in appeal with opportunity for additional evidence.

Final Conclusion: The conviction was not finally set aside on merits, but the retrial direction was displaced and the appellate court was required to dispose of the criminal appeal in accordance with law after taking such further evidence as necessary.

Ratio Decidendi: A statutory presumption based on blood-alcohol concentration may be supported by relevant admissible evidence even when blood was not collected under the special investigative procedure, and retrial should not be ordered merely to fill evidentiary gaps when additional evidence in appeal can meet the ends of justice.

Dissenting Opinion: DAS GUPTA, J. held that section 129A prescribed the only mode by which the alcoholic content of blood could be proved for the purpose of section 66(2), so the prosecution could not rely on the chemical report obtained outside that procedure and the accused was entitled to acquittal.

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