1991 ALLMR ONLINE 597
BOMBAY HIGH COURT

M.F. SALDHANHA, J.

The State of Maharashtra Vs. Jagdish B. Shah

43 of 1984

5th September, 1991

Petitioner Counsel: P, M. Vyas, A.P.P.,
Respondent Counsel: V. B. Ganatra with C, S. Gosalia, .

Dangerous Drugs Act (1930),S. 10, Criminal P.C. (1973),,S. 293

Cases Cited:
1976 UCR (Bom) 474 [Para 9]
AIR 1973 Bom 14 : (1912) 74 Bom LR 505 [Para 9]
(1966) 68 Bom LR 228 [Para 9]
AIR 1954 Bom 305 : (1954) 56 Bom LR 147 [Para 9]


JUDGMENT

JUDGMENT:-An issue of considerable importance has been canvassed on behalf of the original accused in this and the companion appeal which I am summarizing below.

(1) Whether in a criminal trial, the consequences of which could result in a heavy jail sentence to an accused the proof of the principal piece of evidence, namely, the Chemical Analyser's Report can be dispensed with by the prosecution which attempts to tender the document through the Investigating Officer without examining the Analysing Authority, and whether in the absence of the Chemical Analyst being presented as a witness the document itself can either be looked at or relied upon by the Court?

2. This and the companion appeal have been presented by the State of Maharashtra and challenge the judgments and orders dated 21-10-1983 of the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Bombay, whereunder the original accused in those cases came to be acquitted. It was alleged that on the morning of 16-1-1981 certain Police Officers attached to the Narcotics Section of the Delhi Police Establishment apprehended the two accused/ respondents at the Taj Mahal Hotel at Bombay and that they were alleged to have been in possession of small quantities of certain powder, of which samples were drawn and which, on analysis, was found to be heroin. The prosecution alleged that the accused had come to that place for purposes of handing over the heroin to a certain foreigner. The samples were forwarded for chemical analysis which indicated that it contained heroin. I shall have occasion to deal in some detail with the Chemical Analyser's Report which is vital in this case.

3. The accused were charge-sheeted for having committed offences punishable under the Dangerous Drugs Act, 1930, which was the statute at that time in force, and were accordingly put on trial. For some strange reason, the prosecution dispensed with its primary duty of examining the person who had signed the Chemical Analyser's Report and who ought to have proved its contents. Apparently, the prosecutions ought to take shelter under the provisions of S. 293 of the Code of Criminal Procedure, 1973 and to tender this document through the Investigating Officer. It has been pointed out to me that the learned Defence Counsel objected to the admissibility of the report which objection has been noted by the learned Magistrate. Why a ruling was not given on the objection is not known, and I need to record that this is a highly unsatisfactory state of affairs whereby the validity of that document was kept in suspended animation. This is important, to my mind, because after noting the objection, the learned Magistrate took the document on record and it has, in fact, been marked as an Exhibit. If one were to assume that the objection was overruled, the learned Magistrate ought to have indicated it at that point of time because the future course of the trial could have been very different. It would have been open to the accused to challenge that order if they were so advised, or it could have been open to them to insist on the production of the witnesses, but the type of noting made by the learned Magistrate could have reasonably created an impression in the mind of the learned Defence Counsel that the matter was still very much open and that, consequently, there was no reason for the Defence to take any further steps.

4. I have referred to this aspect of the matter because Mr. Ganatra, learned counsel appearing on behalf of the respondent-accused, has very seriously attacked the admissibility of this document and on reliance being placed on it by the Court, and to my mind, with considerable justification. The learned A.P.P. has sought to overcome the hurdle by contending that in so far as the Defence did not take any steps after merely having recorded the objection, the Court must conclude that virtually the document has come on record by consent. If that is so, then the objection, if any, or the rights which are now being canvassed are deemed to have been waived. Unfortunately, this argument has been fuly replied to by Mr. Ganatra, who has very rightly pointed out that where the law specifically prohibits a particular procedure in the course of a trial even in cases where no objection is raised or consent is wrongly

recorded that procedure cannot take on the garb of legality. This, in fact, is the correct position in law and, therefore, the defence of the learned A.P.P. to my mind is of no avail.

5. The basic ground on which the State has challenged the order of acquittal is that the learned trial Magistrate has unnecessarily gone into multifacious aspects of the case obviously because all of them were canvassed before him. The learned A.P.P. contended that most of these grounds which are upheld in favour of the accused are either incorrect or frivolous and that the judgment is assailable on those aspects. I do not propose to examine any or all of the submissions because there is one fundamental ground on which the acquittal order can not be disturbed and it is this ground alone that has been canvassed by learned Counsel appearing on behalf of the respondent. I shall, therefore, straightway deal with that aspect of the case.

6. Mr. Ganatra submitted by referring to the provisions of the Act and pointed out that, assuming without admitting that the samples which came to be analysed by the Chemical Analyser and in respect of which the report has been submitted were, in fact, as alleged by the prosecution, herein, that it is a requirement of law that the quantum of opium derivative must be higher than 0.2 percent. Mr. Ganatra has relied on S. 2(f)(v) of the Dangerous Drugs Act, which incorporates this provision, and he has further submitted that the reason for prescribing this limit is because opium derivatives, such as morphine, are contained in several medicinal preparations. The Legislature, therefore, deliberately excluded all such preparations from the ambit of the Act as otherwise several practical difficulties would have been encountered by medical professionals and patients. Mr. Ganatra further submitted that it was, therefore, basic for the prosecution to have established not that the sample merely contained an opium derivative but that it contained the derivative in excess of 0.2. per cent Admittedly, the Chemical Analyser's Report, even assuming it were to be perfectly valid and admissible, does not indicate that the sample contained more than 0.2 per cent. On this ground alone, according to Mr. Ganatra, the accused before the trial Court could never have been convicted. However, his submission does not stop there, but proceeds into an area of some importance which, being relevant, requires to be gone into.

7. I have already indicated that the entire prosecution case rests entirely and exclusively on the Chemical Analyser's Report because unless it is established that the powder which is alleged to have been seized from the accused comes within the definition of "a dangerous drug", it would not be possible to sustain the conviction. The accused in such circumstances is entitled not only to question but to challenge the evidence that is rendered against him and for so doing he will require the authority concerned, namely, the Chemical Analyser to be produced as a witness so that he can assail the correctness of the Chemical Analyser's Report. An attempt has been made in this case to produce that report through the Investigating Officer and I have already held that such a procedure is impermissible. The additional ground of attack canvassed by Mr. Ganatra was that the accused would have most certainly been in a position to question the person who has issued that document about the following:

(a) The correctness of the report with regard to all important question as to whether the sample that was forwarded for analysis was, in fact, the one which was seized from the accused. (There is some dispute about the description of the sample that ultimately came to be analysed).

(b) The considerable timelag of five months that has occurred between the date when the sample was forwarded for analysis, namely, on 20-1-1981 and the date of the report which is 11-6-1981. (This may assume some importance because the item in question is a chemical and it was pointed out that the storage conditions and passage of time could result in certain changes).

(c) The manner in which the analysis was carried out and for that matter the details of the persons who, in fact, carried out the

analysis, the contemporaneous record maintained by him and the all important question as to whether at all such an analysis was, in fact, carried out.

(d) The qualifications of the authority who had carried out the analysis and the grounds on which he has arrived at his findings.

8. All these issues have, in fact, been agitated very seriously before the trial Court as is evident from the judgment of the learned Magistrate. The accused was totally precluded from effectively embarking on his defence by virtue of the Chemical Analyst not having been produced as a witness. This circumstance, to my mind, therefore, was fatal to the prosecution case because it is quite elementary and basic to any criminal trial that if the prosecution desires to rely on evidence against an accused that a fair reasonable and complete opportunity be presented to the accused to meet that evidence.

9. On the question of proof of the Chemical Analyser's Report, Mr. Ganatra advanced certain submissions which I do consider very essential to record. Mr. Ganatra has relied on three decisions of this Court in the cases of Madholal Sindhu v. Asian Assu. Co. Ltd. (1954) 56 Bom LR 147 : (AIR 1954 Bom 305); In the matter of Mr. D. and Mr. S. Advocates, (1966) 68 Bom LR 228; and C.H. Shah v. Malpathak, (1972) 74 Bom LR 505 : (AIR 1973 Bom 14). In all of these decisions, this Court has very clearly upheld the principle that the documents sought to be tendered in evidence are required to be proved strictly in accordance with the principles as enunciated in the Evidence Act. This proposition does not have to be re-stated because it is quite elementary. This Court, in the decision reported in the case of K.T. Rajkotwala v. State of Maharashtra, 1976 UCR (Bom) 474, has even gone to the extent of elaborating upon the mode of proof and has very clearly specified that the documents must be proved through primary evidence. That the prosecution in the present case has failed to do this is evident and, consequently, the order of acquittal recorded by the trial Court in these circumstances does not deserve to be interfered with.

10. As indicated by me earlier, since these are issues that virtually go to the very root of the matter, I have not dealt with several other aspects of the case as were argued by the learned A.P.P. I have also indicated to learned Counsel for the respondent that it was unnecessary for him to argue the remaining points.

11. In view of the matter, the appeal fails and is accordingly dismissed. The bail bonds of the respondent to stand cancelled.

Appeal Dismissed