1 (Cri.Appeal 545) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 545 OF 2006 Shridhar Laxman Chennuri ) Hindu, aged about 55 years ) permanently residing at 02, ) Bharath Bldg., Ayodhya Nagari ) Manpada Road, Dombivali (East)) Dist. Thane and presently ) undergoing sentence at ) Kolhapur Central Prison, ) Kolhapur )...Appellant Versus 1. The Union of India ) (At the instance of The ) Intelligence Officer, ) Narcotics Control Bureau, ) 3rd floor, Exchange Building, ) Sprott Road, Ballard Estate, ) Mumbai – 400 038 ) 2. The State of Maharashtra )...Respondents 2 (Cri.Appeal 545) ----- Mr.Anil Lalla i/b Lalla & Lalla for Appellant Mr. S.K. Shinde for Union of India. Mr.A.S. Shitole -APP for State ----- CORAM: V.M. KANADE J. DATED: 6TH JULY, 2010 JUDGMENT: 1. The Appellant has filed this appeal, challenging the judgment and order passed by the learned Special Judge dated 7th April, 2006 whereby he was pleased to convict the Appellant herein for the offences punishable under section 8(c) r/w. Section 25 and under section 8(c) r/w. 22 of the N.D.P.S. Act and the Special Judge was pleased to sentence him to suffer R.I. for 10 years and to pay fine of Rs.1,00,000/- and in default of payment of fine, to suffer further R.I. for a period of three months on both the counts. 2. The Appellant was arrested on 8.2.2001 and he is in custody since then. The Appellant, therefore, has already undergone almost 9 years and 6 months of sentence out of the 10 years which was awarded by the Sessions Court. 3 (Cri.Appeal 545) 3. Brief facts are as under: The officers of the NCB received specific information which was recorded in writing and pursuant to the said information, they proceeded to carry out the raid at a factory premises situated in MIDC Area of Taloja, Dist. Thane. The officers of the NCB were supposed to take search of mini truck bearing No.MH-04-S-8235 which was parked in the compound of the said factory premises. This information was reduced into writing on 8.2.2001 by the Intelligence Officers Shri P.S. Namboodri and Shri A.K. Thakkar. Copy of this information was forwarded to the Superior Officer Shri S.M. Dange, who directed the said officers to carry out the raid. 4. When the raiding party found that the truck which was parked in the said compound, had conducted search. In the said truck, they found 51 HDPE sacks and when the bags were opened, they found to contain Mandrax tablets weighing 1423.690 kgs. Thereafter samples were drawn, they were sealed and the labels were affixed on the said samples. The bulk muddemal property was also closed, packed, sealed and labeled. Personal search of the Appellant was taken and 4 (Cri.Appeal 545) panchnama was, accordingly, drawn. The Appellant was arrested and during the course of investigation, the Investigating Officer also arrested the Accused Nos.2 and 3 and Accused No.4. The samples which were drawn during the panchnama, were sent for the purpose of analysis to the Dy. Chief Chemist, New Customs House, Mumbai. Tests reports were received and the chargesheet was finally filed by the prosecution. The Special Judge was pleased to frame charges against the Appellant, who pleaded not guilty to the said charges. The prosecution examined 31 witnesses. The defence examined only one witness viz. DW-1 – Sanjay Pandurang Kolhe. During the trial, the defence of the accused was that a mini-truck was not found parked in the factory premises of the Accused-Appellant herein, and secondly, that he was not in conscious possession of the contraband, allegedly recovered from the said truck. Thereafter, on the basis of the evidence on record, the Appellant was convicted. 5. The learned Counsel for the Appellant, inter alia, urged that the Trial Court had acquitted the other accused viz. Accused Nos.2 to 4. It was urged by Shri Lalla , the learned Counsel appearing on behalf of the Appellant – Accused that the prosecution has not examined the Chemical Analyzer, who had conducted the 5 (Cri.Appeal 545) tests on the samples drawn by the NCB. It was, therefore, submitted that the report of the Chemical Analyzer, was not proved, as required under the law. It was further submitted that PW-31,who was examined by the prosecution was not an expert since he was not analyzer in this case. It is submitted that non examination of the expert was fatal to the prosecution case as held by the Apex Court and this Court in catena of cases. 6. The learned Counsel appearing on behalf of the prosecution, on the other hand, submitted that the C.A. Report received from the Deputy Chemical Analyzer was taken on record as Exhibit -34 (colly) since it was not disputed by the accused. 7. The Learned Counsel appearing on behalf of the Appellant has relied on the judgment of the Division Bench of this Court in the case of Nicklaus Peter Heel vs. State of Goa, reported in 1998 (2) Mh.L.J. 884. It was submitted that the ratio of the said judgment would squarely apply to the facts of the present case. 8. I have heard both the Learned Counsel for the Appellant and the learned Counsel for the Respondent 6 (Cri.Appeal 545) at length. In my view, there is much substance in the submission made by the learned Counsel for the Appellant. In the present case, it is an admitted position that PW-31, who has been examined by the prosecution has not analyzed the samples though the C.A. report was brought on record at Exhibit-34 (colly). In fact, the contents of the C.A report have not been proved at all. In my view, the Special Judge has clearly erred in relying on the said C.A. report as the accused had not taken objection to the said C.A report and since it was taken on record, the same was held to be proved. The law on this point is quite well settled. The Apex Court in the case of Murarilal vs. State of Madhya Prades reported in AIR 1980 SC page 531, in paragraph 4 has discussed how an expert's evidence could be appreciated and has observed thus:- “True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because 7 (Cri.Appeal 545) experts, in general, are unreliable witnesses- the equality of credibility or incredibility being one which an expert shares with all other witnesses, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non- existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, however the opinion may be backed by the soundest of reasons. It is hardly fair to an expert 8 (Cri.Appeal 545) to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his showing that the ingredients which according to the Chemical Analyser are not medicinal do in fact bear medicinal properties. To permit the prosecution to rely upon a mere negative opinion without making available to the accused the grounds on which that opinion is based, seems to us to be unwarranted procedure, a procedure which runs counter to the well-established restrictions subject to which alone opinion evidence can be accepted. We may seem to repeat, but it is necessary to emphasize that Courts are not bound to accept evidence merely for the reasons that the Legislature has made that evidence admissible.” 9 (Cri.Appeal 545) Similarly, in the case of Suleman Usman Menon vs. The State of Gujarat reported in 1961(2)Cri. L .J. 78, the Apex Court in paragraph 5 observed thus:- “It is not enough for the Chemical Examiner merely to state his opinion as to what was the concentration of alcohol in the sample of the blood analysed by him. The report of the Chemical Examiner must show the tests or experiments performed by him, the factual data revealed by such tests or experiments and the reasons leading to the formation of the opinion from such factual data. Otherwise the report would have no value as a piece of evidence. This legal proposition emerges clearly and unmistakably if one bears in mind the true nature of the evidence furnished by the report. …... It must, however, be remembered that the opinion of the Chemical Examiner is merely a piece of evidence on the point regarding concentration of alcohol in the blood of 10 (Cri.Appeal 545) the accused and it is the Court which has to form its opinion on the entire evidence as to whether the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. The report of the Chemical Examiner containing his opinion must, therefore, disclose the factual data on which the opinion is based and the reasons in support of the opinion. Opinion is no evidence unless reasons in support of the opinion are given, for it is then only that the Court can scrutinize the reasons and decide for itself as to what weight should be attached to the opinion.” 9. In the present case, the admitted position is that the contents of the C.A. report have not been proved by the PW-31, who has not conducted the chemical analysis of the samples and as such, the Trial Court could not have relied on the C.A. report merely because the accused had not objected to bring the said report on record. 11 (Cri.Appeal 545) 10. In the present case, therefore, the prosecution has failed to establish that the contraband which was seized by the raiding party was Mandrax tablets. In my view, therefore, non-examination of the C.A. in the present case is fatal to the prosecution case. The Apex Court and this Court in the the case of Nicklaus Peter Heel (supra) and other cases have held that non-examination of the Chemical Analyzer is fatal to the prosecution case and on that ground alone the Appellant deserves to be acquitted of charges which are levelled against him. In any case, the Appellant has practically undergone the entire sentence. 10. The Appellant, therefore, under these circumstances, is acquitted of the offence of which he had been charged. The judgment and order passed by the learned Special Judge is, therefore, set aside. The Appellant is acquitted and is directed to be released forthwith unless he is required in any other case. (V.M. KANADE J.)