* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 893 OF 2009 Lalit Timothy D'souza ....Applicant/(Accused) v/s. State of Maharashtra (Cuffe Parade Police Stn. C.R.No.181 of 2007 .....Respondents ======= Mr.Harshad Ponda with Mr.Junaid Shubhwany, adv.for applicant. Mrs.M.M.Deshmukh, APP for State-respondent. CORAM: SMT.R.P.SONDURBALDOTA,J. DATED: 20TH MARCH, 2009. P.C. : 1. Heard counsel for both sides. 2. This application is filed to challenge correctness of the order dated 21st January, 2009 passed by the Additional Sessions Judge, Bombay City Civil Court in Sessions Case No.140 of 2008 (Exhibit-5) refusing to give directions to the learned public prosecutor to supply photographs and rough notes which form the basis of the Ballistic Report. In the application, the stand taken by the prosecution which stand is continued even before this court is that during the evidence of Chemical Analyzer if the prosecution decides to tender the rough notes taken by the Chemical Analyzer in evidence, then at that stage, * 2 * a copy thereof would be furnished to the defence. The prosecution is certain to examine the Chemical Analyzer as one of the witnesses in the case. The learned APP is not willing to make a statement that the notes prepared by the Chemical Analyzer i.e. the expert would be used by the expert only for the purpose of refreshing his memory and not tender the same in evidence. In the circumstances, in all probability, the notes and the photographs taken by the Ballistic Expert would be tendered in evidence. In that case, the applicant would be entitled to a copy thereof in compliance with Section 173 Cr.P.C. Without receiving the copies, the applicant is likely to be prejudiced in preparing his defence. The learned Sessions Judge has rejected the application on the ground that the report of the Forensic Science Labrotary consists of the details of the analysis done by the expert and whatever notes the said expert has prepared for giving this report, must not be inconsistent with the details in his report. Therefore, the learned Judge held that, at this stage it cannot be maintained that without supplying the photographs and notes prepared during examination of the articles of the above case, the prosecution did not comply with Section 173 Cr.P.C. and the accused in unable to know the exact accusation. That the notes prepared would be consistent with the details in the report, is * 3 * a conjecture drawn on the part of the learned Judge. Unless, the prosecution makes a statement that the notes will be used by the witness only for the purpose of refreshing his memory and not tender the same in evidence, the accused will be entitled to receive the copies of the notes and the photographs, so as to prepare his defence properly. 3. Mrs.Deshmukh, the learned APP, states that if the notes and photographs are tendered in evidence during the deposition of the Chemical Analyzer, the prosecution is willing to hand over copies thereof and also agree for an adjournment, if need be at the relevant time. If that is so, one fails to understand as to why the copies cannot be called for and given to the applicant now. 4. In these circumstances, the order dated 21st January, 2009 passed by the Additional Sessions Judge, Bombay City Civil Court in Sessions Case No.140 of 2008 (Exhibit-5) is set aside. The application dated 10th November 2008 is allowed. The prosecution is directed to furnish to the applicant well in advance i.e. before framing of the charge, copies of the rough notes and the photographs taken. 5. All concerned to act on authenticated copy of this order. [SMT.R.P.SONDURBALDOTA, J]