Criminal Appeal No.148 of 2000

25th July, 2001

Petitioner Counsel: S/Shri. M. R. DAGA, R. M. DAGA
Respondent Counsel: Shri. S. S. DOIFODE

Cases Cited:
Nilkanth Mahadeo Chandekar Vs. State of Maharashtra, 2000 ALL MR (Cri) 79 [Para 6]
Sou. Subhadra Baban Shinde Vs. State of Maharashtra, 1993 Bom.Cr.Cases 566 [Para 15]
Ahmad Usman Bhattiwala Vs. State of Maharashtra, 1993 Cri.L.J. 3264 [Para 16]
Ashok Asumal Bajaj Vs. State of Maharashtra, 1993 Bom.Cr.Cases 579 [Para 17]
Mohd. Hanif Sk. Ibrahim Vs. State of Gujarat, 1995 (1) Crimes 274 [Para 19]
Channa Vs. State of Punjab, 1996 (1) Crimes 165 [Para 20]

JUDGMENT

JUDGMENT :- By this appeal, accused Noorkhan @ Nuru S/o. Rahimkhan Khan has challenged the order of conviction and sentence passed against him by the learned Special Judge, N.D.P.S. Court, Nagpur in Special Criminal Case No.31/1998. He was convicted of the offence under Section 21 of the N.D.P.S. Act for the contravention of the provision under Section 8 of the said Act and was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh or in default to suffer Rigorous Imprisonment for one year more.

2. The case of the prosecution is as follows :-

(A) At the relevant time, Head Constable Pali was attached to Crime Branch, Narcotic Cell, Nagpur. On 18-5-1998, around 9.40 A.M. after taking the station diary entry, Head Constable Pali, P.S.I. Tidke and other police staff made a departure from the office of Crime Branch for collection of the information about the Narcotic Drugs and effecting the raids. At about 11.30 A.M., while the aforesaid police officials were in the grounds near R.S.S. Building, Head Constable Pali received an information that near Shahi Masjid in Mahal Castle area, a person by name Nuru was selling brown sugar to the customers. Head Constable Pali reduced the information in writing on a paper. Then he prepared the F.I.R. and submitted the same to the police Inspector, Narcotic Cell, Crime Branch, Nagpur, through Police Constable Prem Chand. Head Constable Pali then called two persons from the passersby to act as Panch witnesses. When Head Constable Pali was informing the above panch witnesses in respect of the information received by him about the brown sugar, P.I. Madavi arrived there. P.I. Madavi, P.S.I. Tidke, Head Constable Pali and other police staff alongwith panchas proceeded towards Mahal Castle area.

(B) The Jeep was stopped and the above police officials and panchas went towards Shahi Masjid in east-west lane. The accused/appellant was noticed at that place. Head Constable Pali apprised him of the information received and told him that he wanted to take his search. Head Constable Pali informed the accused/appellant that if he desired, his search could be arranged in presence of a Gazetted Officer or a Magistrate. Head Constable Pali issued a written intimation to the accused/appellant in that respect as required under Section 50(1) of the N.D.P.S. Act. The accused told that he could not read or write, but he could put signature only, in Urdu. The accused stated that he did not require the presence of any Officer. An endorsement to that effect was therefore made by Head Constable Pali below which the accused put his signature.

(C) Head Constable Pali, other police officers and the staff as well as panchas offered their searches. The accused refused to take their search. Head Constable Pali then took the search of the person of the accused. In the watch pocket of the full pant of the accused, four small plastic bags were found. The packets were containing brown sugar (Heroin). Head Constable Pali collected the contents of all the four packets on a plain paper. The contents were weighed. They weighed one gram. Head Constable Pali then took two papers and obtained signatures of the accused and panch witnesses on them and also put his signature. The powder of Brown Sugar was packed in the plain paper. It was again packed in a packet which was prepared by using one of the aforesaid two papers. The said packet was sealed and marked as S1. Another paper out of the above two papers was used for packing the empty packets. This packet was also sealed and the same was marked as P1. In the personal search of the accused, H.C. Pali also found the amount of Rs.1,070/-. The same was taken by H.C. Pali in his custody. The search of the house of the accused was also taken but no contraband was found there. H.C. Pali informed the accused that he had committed the offence under the N.D.P.S. Act and he was, therefore, arresting him. H.C. Pali then drew the panchanama of all the above happenings.

(D) Head Constable Pali took the property and accused to Police Station Kotwali. P.S.I. Padvi was the Day Officer at P.S. Kotwali. Head Constable Pali lodged the complaint about the offence committed by the accused to P.S.I. Padvi. He also submitted another report to Police Station Officer, which was accompanied by a Seizure Memo, Chemical Analyzer's Form, two sealed parcels and cash of Rs. 1,070/-, requesting the Police Station Officer to take the above property and articles and also the accused in custody and to reseal the sealed parcels, to deposit the same in the Malkhana and send the parcel marked as S1 to the Chemical Analyzer. P.S.I. Padvi re-sealed the parcels S1 and P1. He also handed over the property and the documents to Malkhana Incharge for safe custody. On the next day, Head Constable Pali submitted the compliance report to his superior official - P.I. Crime Branch, Nagpur.

(E) P.C. Jagdish Tijare, who was the Malkhana Incharge, deposited the property in Malkhana after taking the entry in the property register. On the next day i.e. on 19-5-1998, P.C. Jagdish Tijare carried the sample to the Chemical Analyzer, Nagpur. The C.A.'s report was received to the effect that heroin (Diacetylmorphine) was detected in the sample with other opium alkaloids. As per the Chemical Analyzer, the exhibit falls under Section 2 (xvi)e of the N.D.P.S. Act, 1985. On receipt of the Chemical Analyzer's report, the accused was chargesheeted.

3. The learned Special Judge, N.D.P.S., Nagpur, framed the charges of the offence under Section 21 of the N.D.P.S. Act. It was read over and explained to the accused and he pleaded not guilty.

4. The Special Judge found that there was a compliance of the provisions under the N.D.P.S. Act. He held that the offence of possession of gard (Heroin) was proved. He accordingly convicted and sentenced the accused as detailed above.

5. The learned counsel for the accused/appellant assailed the judgment and order of conviction and sentence passed by the Special Judge on various counts. As per the learned counsel, there was a non-compliance of the provision of Section 42(1) of the N.D.P.S. Act. He canvassed that only the Officer, who is empowered by the Central or State Government by general or special order, can conduct the raid, search and seizure under Section 42(1) of the N.D.P.S. Act. He pointed out that it was not proved in this case that Head Constable Pali was authorised to conduct the raid. As per the learned counsel, in order to prove such authorisation, the prosecution ought to have produced the notification concerned, but no such notification was produced at the trial. These arguments would not stand. At the appellate stage, the learned A.P.P. pointed out the Notification No. BPA. 1085/1180/81-A(1)PRO-1, dated 14-11-1985, issued by the Government of Maharashtra in exercise of the powers conferred on it by sub-section (1) of Section 42 of the N.D.P.S. Act, which empowers all the Police Officers of and above the rank of Head Constable in the State of Maharashtra to conduct the raid, search and seizure. Head Constable Pali was thus authorised or empowered to conduct the raid, search and seizure in this case. Though the copy of the notification was not placed on record of the Trial Court, cognizance thereof can be taken at any stage.

6. The learned counsel for the accused/appellant contended that there was a non-compliance of the provision of Section 50(1) of the N.D.P.S. Act. The learned counsel submitted that Head Constable Pali had merely given a written notice or intimation to the accused/appellant under Section 50(1) of the N.D.P.S. Act, which is at Exhibit 30. According to him, only the giving of notice is not sufficient and it is incumbent upon the officials conducting the raid, to explain to the accused about his entitlement to be searched in presence of a Gazetted Officer or a Magistrate. In support of his contention, the learned Counsel cited the decision of Division Bench of this Court in Nilkanth Mahadeo Chandekar v. State of Maharashtra 2000 ALL MR (Cri) 79. The learned counsel canvassed that Head Constable Pali has not mentioned in the complaint Exhibit 23 that he had explained to the accused about his entitlement to be searched in presence of a Gazetted Officer or Magistrate, although he stated to that effect in his evidence.

7. The abovesaid case cited by the learned counsel for the accused/appellant lays down that the compliance of Section 50 is mandatory and where the accused has not been cautioned or forewarned of his right to be searched in presence of a Gazetted Officer or a Magistrate, the prosecution can be said to have failed to comply with the mandatory requirement of Section 50 and consequently, the search and seizure conducted by the raiding party stand vitiated and the seizure of contraband from the appellant/accused will have to be ignored for the purposes of establishing the guilt of the accused under Section 21 of the N.D.P.S Act. Relying on the Supreme Court judgment, it was held that mere giving of notice and recording the said fact in the panchanama can not be considered as substantive evidence before the Court on the basis of which the Court can arrive at a finding that there was a due compliance of the requirement of Section 50(1) of the Act. The search panchanama and notice can only be relied upon by the prosecution for the purposes of corroborating their case before the Court and it is not a substantive evidence and in absence of any substantive evidence, it can not be said that the notice and search panchanama is sufficient to establish that the prosecution has complied with the requirement of Section 50(1).

The case cited by the learned counsel for the appellant is not applicable to the present case. In the case cited above, the Investigating Officer did not depose in his evidence that the accused was made aware of his right to be searched in presence of a Gazetted Officer or Magistrate and his evidence was restricted to issuing notice in writing. In the present case, Head Constable Pali, has deposed categorically that he informed the accused that if he desired, his search could be arranged in presence of a Gazetted Officer or a Magistrate. Thus, the accused was cautioned or forewarned about his right to be searched in the presence of a Gazetted Officer or a Magistrate. The recitals in the search and seizure Panchanama Exhibit 31 also show that Head Constable Pali had apprised the accused of his right or entitlement of being searched in presence of a Gazetted Officer or a Magistrate. Thus, the version of Head Constable Pali that he informed the accused about his entitlement as above, is well corroborated by the search and seizure panchanama. Further, it may be seen that even if it is not specifically mentioned in the complaint Exhibit 23 that Head Constable Pali had informed the accused about his entitlement of the search in presence of a Gazetted Officer or a Magistrate, the wording in the said complaint that the contents of the notice issued to the accused under Section 50(1) of the N.D.P.S. Act were explained to him orally, clearly shows that the accused was apprised of his right or entitlement. It can thus be said that there is no omission in the real sense in the complaint about the caution given by the Head Constable Pali to the accused about his right or entitlement, as argued by the learned counsel for the accused/appellant. The mention to that effect is made in the complaint in the above words that the contents of the notice were explained to the accused orally, which show that the accused was cautioned or forewarned about his right. Thus, there is sufficient compliance of the provision under Section 50(1) of the N.D.P.S. Act.

8. The learned counsel for the accused/appellant further pointed out the wording in the complaint Exhibit 23 that the introduction of the Gazetted Officer Shri. Madavi was given to the accused and argued that explaining simply that P.I. Madavi was a Gazetted Officer, would not suffice, as P.I. Madavi was an interested witness and he was accompanying the raid only to show the compliance of Section 50(1) of the N.D.P.S. Act. It may be seen that the evidence of Head Constable Pali, the recitals in the search and seizure Panchanama and the aforesaid contents of the complaint show that the accused was apprised of his right or entitlement to be searched in presence of a Gazetted Officer or a Magistrate and the abovesaid wording in the complaint that the introduction of the Gazetted Officer Shri. Madavi was given to the accused, is merely by way of an addition.

9. The learned counsel for the accused/appellant submitted that after the gard or brown sugar was seized, two packets were prepared. One was labelled as S1 and the other was labelled as P1. He pointed out that the complaint Exhibit 23 shows that out of the aforesaid two packets, the packet labelled or market as S1 was only retained for being sent to the Chemical Analyzer for analysis. The requisition form sent to the C.A., Exhibit 13, also shows that only one sealed parcel containing one gram gard in polythene packet was forwarded to the C.A. for analysis. Again the invoice challan Exhibit 15 shows that one sealed paper packet, which contained one gram gard retained for chemical analysis and which was marked as S1, was sent to the C.A. for analysis. However, as per the learned counsel, if the C.A.'s report Exhibit 20 is seen, it will show that both the parcels, i.e. parcel labelled as S1 and the parcel labelled as P1, were received by the C.A. As per the learned counsel, this discrepancy is material. In this behalf, it will be seen that some confusion has occurred because of the wording typed in the paper book. In the paper book, in the column of description of parcels received by C.A., it is mentioned - "One sealed parcel, seals intact, as per copy sent - Pl N.D.P.S." Then in the description of articles contained in the parcel, below the above description, it is mentioned "Exhibit :- Brown coloured powder, wrapped in paper again wrapped in paper - labelled S1." This second description is the description of the contents after the parcel is opened. However, if the original report of the C.A., Exhibit 20 is seen from the Trial Court's record, one will find that in the description of parcel received by C.A. for analysis, the typed portion is only "one sealed parcel, seals intact, as per copy sent." The wording 'Pl N.D.P.S.', which appears in the paper-book resembling P1 in continuation of the aforesaid wording is not in typed form in the original. The exact wording in the original is Pl (Small letter L and not figure one) N.D.P.S. It is written in ink and below that wording, the Deputy Commissioner of Police, Crime Branch, has put his signature and affixed his stamp. Obviously, "Pl N.D.P.S." does not refer to the sealed packet marked as "P1" by Head Constable Pali, wherein the empty polythene packets were kept. "Pl N.D.P.S." in the written form in ink means parcel of N.D.P.S., wherein the sealed sample S1 was sent to C.A. for analysis. This parcel was received by the Deputy Commissioner of Police, Crime Branch, Nagpur, through his subordinate and in token of receipt of the same, he made the endorsement as "Pl N.D.P.S." and signed the same. Thus, it can be seen that whatever was sent to Chemical Analyzer for analysis was only one sample packet marked or labelled as "S1" in a parcel and on the receipt of the whole parcel back from the C.A., the Deputy Commissioner of police made the endorsement of receipt as "Pl N.D.P.S." (meaning thereby parcel of N.D.P.S.).

10. The learned counsel for the appellant contended that if the extract of the Muddemal Register, which is at Exhibit 16 is seen, one will find that both the packets deposited in the Malkhana were containing gard. In the concerned column, Item No.1 is shown as "One sealed packet containing packet of Gard which bears the seal PDP PSI." Further it is stated "it is marked as (S1) retained as a sample for chemical analysis." Then item no.2 is shown as "One sealed packet containing packet of Gard marked as (P1) and bearing the seal PDP PSI". The wording of item No.2 as "one sealed packet containing packet of Gard, marked as P1" is interpreted by the learned counsel contending that this packet P1 was also containing gard, and thus, as per the learned counsel, both the packets, which were sealed on the spot by Head Constable Pali and marked as S1 and P1, which were deposited in the Malkhana as per the Muddemal Register, were containing gard, whereas only one packet, which was marked as S1, was forwarded to the Chemical Analyzer for examination. I am unable to agree with the learned counsel for appellant in this respect. Though both the packets, i.e. the packet marked as S1 and the packet marked as P1, are referred to in the Muddemal Register as the packets containing gard, it is the defective language of the Malkhana Incharge, who received the property. The Marathi wording in the original register is "Gardachi Pudi". There is ample evidence on record to show that Head Constable Pali had collected the brown sugar from all the four packets on one paper; that paper was sealed separately and was marked as S1 and the empty polythene packets were sealed in a separate packet, which was marked as P1 and that P1 is the Item No.2. It may happen that since both the packets were sealed, the Malkhana Incharge could not know the contents of the packets. So, he might have failed to mention that Item No.2 was containing empty packets.

11. The learned counsel for the appellant pointed out that the evidence of P.S.I. Padvi shows that the sealed packets marked as S1 and P1, both were before the Court, but the list of articles Ex.9 shows that only the packet marked as P1 was received in the Court and there is no reference to packet marked as S1 in the description of articles received in the Court. In all three items are mentioned in the list of articles, which were received in the Court. Item No.1 was Khaki sealed envelope received from the C.A. Item No.2 was sealed envelope marked as P1 wherein the polythene packets were kept and the third item was cash of Rs. 1,070/-. The Khaki sealed envelope, which is Item No.1 in the list of articles Exhibit 9, which was received from C.A., was opened before the Court at the time of evidence of P.S.I. Padvi and it was containing the seal paper marked as S1. The sealed envelope marked as P1, which is item No.2, was not sent to C.A. That sealed envelope marked as P1 and the cash of Rs.1,070/- were retained in the Police Station. Then, on receipt of the Khaki sealed envelope from C.A., which was containing seal paper marked as S1, all the three items were forwarded to the Court vide list of articles Exhibit 9. Since the Item No.1 Khaki envelope received from C.A. containing the seal paper marked as S1 was in a sealed condition, the concerned person from Malkhana could not mention the packet S1 in the list of articles and he simply mentioned the item as Khaki sealed envelope. Thus, S1 and P1, both were received in the Court in the list of articles, but S1 could not be mentioned in the list of articles by the Malkhana Incharge because it was in Khaki envelope, which was in sealed condition.

12. The counsel for the accused/appellant pointed out that as per the remark in the extract of Muddemal Register, the property was sent to Chemical Analyzer for examination on 19-5-1998, whereas the acknowledgement in respect of the receipt of the property given by the concerned Clerk from the C.A.'s office (Shri. Shuddhalwar) on the copy of C.A. Form Exhibit 13, is dated 18-5-1998. To remove the ambiguity on the above point, the prosecution had examined Shri. Shuddhalwar, Clerk from C.A.'s office, as a witness. He deposed that he received the invoice challan on 19-5-1998. The invoice challan Exhibit 15 also shows that Shri. Shuddhalwar received the property on 19-5-1998. The date put by him acknowledging the receipt of the property on Exhibit 15 is 19-5-1998. However, on the copy of C.A. Form Exhibit 13, the date put by him acknowledging the receipt of the property is 18-5-1998. He was confronted with the aforesaid date recorded on C.A. Form Exhibit 13 and he clarified that he mentioned the date 18-5-1998 on the C.A. Form Ex.13, inadvertently. He admitted it to be his mistake and described it as an inadvertent mistake. The extract of Muddemal Register shows that the property was sent to the C.A. on 19-5-1998. The C.A.'s report Exhibit 20 also shows that the properly was received in the office of C.A. on 19.5.1998. Thus, I have no hesitation to hold that the property was forwarded by the Police Station to C.A. on 19-5-1998 and not on 18-5-1998, as acknowledged by Shri. Shuddhalwar on the copy of C.A. Form Exhibit 13, which is through mistake.

13. The learned counsel argued that as per Section 52-A(2) of the N.D.P.S. Act, an inventory of Narcotic drugs and Psychotropic Substances has to be prepared for being sent to the Magistrate for certifying the correctness. He submitted that no such inventory was prepared and was sent to the Magistrate. The learned Additional Public Prosecutor submitted that the inventory, which is to be prepared as per the above provision, is in respect of the property remaining after the drawing of sample. He pointed out that in the instant case, the whole property was sent to the Chemical Analyzer. The Chemical Analyzer used a small quantity, which was required for analysis and returned the rest of the property to the Police Station, which was produced before the Court.

14. The learned counsel for the accused/appellant submitted that the C.A's report does not show as to how much quantity was used for analysis and how much was remaining. As per the learned counsel, the data in above respect was a must in the C.A.'s report. He submitted that the benefit of the above ambiguity in absence of the required data should be extended to the accused.

15. The learned counsel for the accused/appellant cited some cases on the point of analysis by the Chemical Analyzer. The first one is Sou. Subhadra Baban Shinde v. State of Maharashtra, 1993 Bom.Cr.Cases 566. This case is on the point of identification of contraband before the Court. In this cited case, the report of the Chemical Analyzer indicated that the complete material was used in analysis. However, the Investigating Officer identified a sealed envelope before the Court as the material seized. There was nothing on record to show that after the analysis, the C.A. has resealed the envelope. So, a serious doubt arose as to what material was analyzed. It was held that once the powder had been completely used by the C.A., there was no question of property being produced before the Court. Thus, there was a discrepancy between the C.A.'s report, which indicated that the whole property was used in chemical analysis and the evidence of the Investigating Officer, who identified the property before the Court. In the instant case, there is no such discrepancy. The C.A.'s report Exhibit 20 does not show that the entire property was utilized in the analysis. So, the evidence of P.S.I. Padvi before the Court, who identified the remaining property, that was returned by the C.A. after using some quantity in analysis, cannot be said to be discrepant. Thus, on facts, the case cited by the learned counsel is not applicable.

16. The next case cited was on the point of extending the benefit of Section 27 of N.D.P.S. Act to the accused. It is Ahmad Usman Bhattiwala v. State of Maharashtra, 1993 Cri.L.J. 3264. In this cited case, the total contraband recovered from the accused was 5.100 grams of Charas pills. In respect of the contraband Charas, the small quantity intended for the personal consumption within the meaning of Section 27 of the N.D.P.S Act, specified by the Central Government by Notification, is 5 grams. In the cited case, 100 m.gram was in excess of the above quantity specified by the notification. It was held that it was so small a quantity that by making allowance for normal errors in weighing, etc., it would be reasonable to hold that the amount of Charas found with the appellant/accused could be rounded off to 5 grams. In this view of the matter, the benefit of Section 27 of the Act was given to the accused and the conviction was altered and the sentence was reduced accordingly. In the instant case, the contraband seized was heroin known as brown sugar or smack. The small quantity intended for personal consumption as is specified by the above notification is 250 m.gram. The quantity found with the accused was 1 gram. So, the excess was not marginal and even if the aspect of a possible error in weighing the contraband is considered, the benefit of Section 27 of the N.D.P.S. Act cannot be extended to the accused.

17. The next case cited is Ashok Asumal Bajaj v. State of Maharashtra, 1993 Bom.Cr.Cases 579. This case is on the point of duty of prosecution to establish the exact weight of the substance seized in the cases of seizure of small quantity of heroin. It is enunciated that in smaller quantities, the total weight of substance and wrapper should be ascertained and thereafter the weight of the wrapper should be ascertained so as to give the exact weight of the substance by working out the difference. It is further expressed that the Chemical Analyzer should also mention the exact weight of the material sent to him. In this cited case, the benefit of Section 27 was extended to the accused because of the doubt that arose about the weight of the contraband seized from the accused as it was in wrappers and the weight of the wrappers was not ascertained. The case cited above, has also no application to the present case on facts. Though the total weight of heroin or gard powder in this cited case was 1 gm.950 m.gram, the benefit was given to the accused because the abovesaid contraband was in eight pudis (wrappers). Each wrapper was containing a very small quantity and the contents of all the wrappers were not collected together. The Investigating Officer had weighed the paper packets alongwith the contraband and after weighing the same, the aggregate weight was recorded as 1 gram and 950 m.gram. The whole commodity was utilized for analysis. Money was also not found with the accused. In such circumstances, it was held that the contraband found with the accused was in a small quantity intended for personal use. Therefore, the benefit of Section 27 N.D.P.S. Act was given. In the present case, the commodity was taken out from four wrappers and was collected in one paper and then the weight was taken. So, the weight of contraband seized from the accused in the present case, recorded as 1 gram, did not include the weight of four wrappers.

18. The learned counsel for the appellant pointed out the following recitals in the complaint Exhibit 23 :

" On taking the said 4 packets into custody, they were opened and gard from all the 4 packets was mixed in the polythene packet carried by us and on weighing it with the help of balance, it weighed 1 gram."

The learned counsel submitted that the above wording in the complaint shows that the weight of polythene packet carried by the Investigating Officer with him was included in the weight recorded as one gram. It is not specified in the complaint that the weight of the contraband taken was the weight minus that of polythene wrapper carried by the Investigating Officer with him. However, the evidence of Investigating Officer - Head Constable Pali shows that after collecting the contents of all the four wrappers on a plain paper, the contents were weighed and they were weighing one gram. The learned A.P.P. submitted that the above piece of evidence suggests that the weight of contraband only was taken and the weight of one gram did not include the weight of even one polythene paper, which was carried by the investigating Officer with him. To my mind, even if the weight of the plain polythene paper carried by the Investigating Officer with him on which the contraband from four packets was collected, is deducted, the total weight of the commodity would not go below 250 m.gram, which is the quantity specified by the aforesaid Notification as a small quantity intended for personal consumption under Section 27 of the N.D.P.S. Act. Thus, the benefit of Section 27, cannot be extended to the accused. In the present case, in addition, the cash of Rs.1,070/- was also found with the accused.

19. The learned counsel for the appellant submitted that in the C.A.'s report Ex.20, he has not given any data as to what tests or experiments were performed by him while arriving at the conclusion that the commodity sent to him for examination or analysis was heroin. As per the learned counsel, in the absence of any such data, it cannot be assessed whether the aforesaid opinion recorded by the Chemical Analyzer is correct. In support of his contention, he cited Mohd. Hanif Sk. Ibrahim v. State of Gujarat, 1995(1) Crimes 274. The ratio of this case is that the report of the public analyst containing bare opinion, without there being any full and complete data disclosing the tests and experiments performed by him, cannot be attached any probative evidentiary value to be used against the accused for recording the order of conviction and sentence against him. It was held that merely because by virtue of section 293 of the Cr.P.C., the report of public analyst could be admitted in evidence and exhibited without giving evidence before the Court, that by itself does not mean that the same is to be accepted straightaway as a conclusive proof of evidence against the accused, more particularly when it does not contain even a grain of material indicating on what scientific tests his opinion was arrived at. It was observed that before the evidence of public analyst can be safely accepted and relied upon to base the order of conviction and sentence, the Court must have an opportunity of its own to independently assess and appreciate the same on the basis of scientific tests, etc.

20. No doubt, the C.A's report Ex.20 does not disclose as to what scientific tests were held by the C.A. while recording the opinion that the heroin (Diacetyl Morphine) was detected in the Exhibit alongwith other opium alkaloids. However, at the time when the C.A.'s report was marked as Exhibit, no objection was raised and no request was made to procure the presence of the Chemical Analyzer for the purpose of cross examination. It was open for the accused to cause the Chemical Analyzer to be summoned for the cross-examination on the point of subject matter of his report. The said option was not exercised by the accused. In my opinion, the above question cannot now be agitated by the accused/appellant at the appellate stage, when he failed to exercise the above option. In this connection, the learned A.P.P. also cited Channa vs. State of Punjab, 1996(1) Crimes 165. In this cited case also, when the report of the Chemical Examiner was tendered in evidence, no objection was advanced and no prayer was made that the Chemical Examiner should be examined in the Court. In that view of the matter, it was held that the report of Chemical Examiner had evidentiary value and the conviction could be based on it.

21. The learned counsel for the appellant further contended that in the present case, the chemical analysis was performed by the Assistant Chemical Analyzer, Regional Forensic Science Laboratory, Nagpur, and the report was drawn by him. He pointed out the definition of "Chemical Analyzer" in the Maharashtra Narcotic Drugs and Psychotropic Substances Rules, 1985 framed by the Home Department, Bombay, dated 14.11.1985. The definition is as below :

" Chemical Analyser" means the Director, Forensic Science Laboratory and Chemical Analyser to Government of Maharashtra or the Director, Haffkine Institute, Bombay or the Assistant Director, Drugs Control Laboratory of Food and Drug Administration, Grih Nirman Bhavan, Kalanagar, Bandra, Bombay and includes any officer authorised respectively by them in this behalf."

22. The learned counsel submitted that the Assistant Chemical Analyzer is not included in the above list given in the definition of "Chemical Analyzer" and he was not, therefore, authorized or empowered to analyze the sample and to issue the report. The definition of "Chemical Analyzer" as above is only for the purpose of the aforesaid rules framed by the Home Department. The rules are framed for the particular purpose. There is no reference to the chemical analysis in the matters of offences. For the purpose of collecting the evidence in the offences, any Officer, who is an expert in the matter of chemical analysis, can analyze the sample. The Assistant Chemical Analyzer is the expert in the field. So, the Investigating Authority can take the help of Assistant Chemical Analyzer while collecting the evidence in the offences. By virtue of Section 293(4) of Cr.P.C., the report of Assistant Chemical Analyzer also can be used as evidence in any enquiry, trial or other proceedings under the Cr.P.C., without his being called for evidence, of course, subject to the further condition that he can be summoned and examined as to the subject matter of his report, under orders of the Court. Even otherwise, the aforesaid definition shows that the Chemical Analyzer includes any Officer authorized by the Director, Forensic Science Laboratory and Chemical Analyzer to the Government or the other authorities mentioned in that definition and the copy of authorization produced by the learned A.P.P., shows that the Director, Forensic Science Laboratory, Maharashtra, who is also a Chemical Analyzer to the Government, has authorized the Assistant Chemical Analyzer to the Government to analyze the materials submitted by the Investigating Officer under the N.D.P.S. Act, 1985 and to issue the report.

23. During the course of arguments, the counsel for the appellants brought it to the notice of this Court that the question as regards the result of the analysis in the C.A.'s report was not put to the accused during his examination under Section 313 Cr.P.C. Hence, the accused was caused to be produced before this Court and the question in that regard was put to the accused. The learned counsel for appellant/accused, contended that in view of the additional examination of the accused on the above point, the accused would now be entitled to cause summoned the Chemical Analyzer for the purpose of examination. It is not possible for me to accept this submission. The C.A.'s report was already on record and it was marked as Exhibit 20 during the evidence. The accused ought to have exercised the option of summoning the C.A. for examination at the trial. He failed to exercise that option during trial. Merely because the accused is examined on that point at the appellate stage, he would not be entitled to cause summoned the Chemical Analyzer for the purpose of examination because he was already aware of the C.A.'s report.

24. The counsel for the appellant has also raised the point of non-compliance of Section 57 of N.D.P.S. Act. According to him, the compliance report submitted by Head Constable Pali to his superior official does not give full particulars. However, the perusal of the compliance report Exhibit 33 would show that all the necessary details as regards the arrest and seizure of contraband were given in the said report. So, there is a compliance of Section 57 of the N.D.P.S. Act.

25. The learned counsel for the appellant submitted that the search and seizure of contraband from the accused cannot be taken to be proved to the satisfaction of the Court because the panch witnesses did not support the case of the prosecution and they were declared hostile. However, on going through the evidence of other witnesses examined by the prosecution, I find that the witnesses have deposed to the satisfaction of the Court in every respect. The evidence of Head Constable Pali, P.C. Premchand, P.S.I. Padvi and P.C. Jagdish Tijare shows that all the requirements under the N.D.P.S. Act were fulfilled and the mandatory provisions were scrupulously followed. The raid, search and seizure of contraband from the accused are duly proved. The C.A.'s report shows that the sample of the seized articles forwarded to him for analysis contained heroin with other opium alkaloids and the said commodity falls under Section 2(xvi)(e) of N.D.P.S. Act. The offence under Section 21 of the N.D.P.S Act is, therefore, made out against the accused. The Special Judge N.D.P.S. Court, Nagpur, therefore, did not commit any error in convicting the accused and passing the sentence upon him according to law.

26. The appeal deserves to be dismissed and the same is dismissed.

Appeal dismissed.