IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.337 OF 2000 Pradeep Ramniklal Bhat, at present confined in Nasik Road, Central Jail, Nasik Road, residing at Flat No.6, Building No.S-A, Navjivan Housing Society, ...Appellant Lamington Road, Bombay - 400 008. (Ori.Accused) Versus The State of Maharashtra, at the instance of Narcotics Cell, Ghatkopar Unit, ...Respondents under C.R.No.38/92. (Ori.Complainant) ...... Mr.S.B.Keshwani with Mr.K.M.Sangani for Appellant. Mr.V.B.Konde-Deshmukh, A.P.P. for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 12, 2006. SEPTEMBER 12, 2006. SEPTEMBER 12, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Appeal takes exception to the Judgment and Order passed by the Special Judge under the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) : 2 : for Greater Mumbai dated March 3, 2000 in N.D.P.S. Special Case No.248 of 1992. The Appellant was charge-sheeted and tried for offence under Section 22 r/w Section 8(c) of the Act and has been found guilty of that offence. 2. In short, the prosecution case is that on 12th August 1992 Police Inspector Suresh Ramchandra Pawar (PW 1) of Narcotic Cell of Ghatkopar received information about the description of the person who was suspected to deal in Mandrax tablets and in furtherance of his design, was expected to arrive near Alfa Medical Store in the evening between 6.00 p.m. and 6.30 p.m. The information so received was reduced into writing and communicated to Deputy Commissioner of Police and arrangement for trap was made at the office. Two independent persons were called to act as panchas. After pre-trap formalities were completed, the raiding party reached near bus stop at Alpha Medical Store when person resembling the description of Appellant/accused was spotted. He was moving in suspicious manner. After observing the conduct of the Appellant for a while, the police party : 3 : approached the Appellant and informed their intention to take his search for suspected possession of Narcotics, i.e. Mandrax. He was also informed that he had right to be searched before Gazetted Officer or Magistrate. After necessary formalities were completed, search was taken. It was found that the accused was carrying plastic bag, which contained eight plastic packets consisting of tablets. Some tablets were removed from the said packets and test was conducted on the spot with the help of Kit, which was taken by the police party. The tablet tested positive for Mandrax (Methaqualone). The packets recovered from the plastic bag possessed by the Appellant weighed about 4 kgs. Necessary formality of preparing samples to be forwarded to the Chemical Analyser was also complied with. The Appellant was arrested in connection with possession of contraband item. During the interrogation, on 14th August 1992, Appellant/accused desired to make statement which was recorded in the presence of two independent persons. The Appellant/accused volunteered to point out place of concealment of substantive quantity of Methaqualone tablets. After the : 4 : statement was recorded at the instance of the Appellant/accused, police party along with the panchas proceeded to the place as per the instructions of the Appellant/accused being Room No.73, Parmanand Wadi, 25/B Thakurdwar road, Mumbai. The room was found locked. It was opened by the Appellant/accused with the available keys. On entering the room the Appellant pointed out six cardboard boxes containing Mandrax tablets, one icon concealed in wooden box, which were taken charge of. The tablets found were tested on the spot with the help of Kit taken by the Police Officer. The tablets tested positive for Mandrax (Methaqualone). The total weight of the tablets recovered from the said spot at the instance of the Appellant was 99 kgs. Sample from the said bulk was taken for being forwarded to the Chemical Analyser for his opinion. The Chemical Analyser’s report was received which indicated the result of analysis as Methaqualone Diphenhydramine Hydrochloride. The Chemical Analyser also indicated the percentage of Methaqualone present in the said samples. After investigation was complete, charge-sheet was filed. The Appellant : 5 : was tried by the Special Judge under the Act. Following charge was framed against the Appellant: "C H A R G E I, K.O.Chandiwal, Esqr. Spl. Judge under NDPS Act 1985 for Greater Mumbai do hereby charge you - Pradeep Ramniklal Bhat as under :- FIRSTLY : That you accused abovenamed on 12.8.92 at about 18.15 hours near Bus stop at ALFA Medical Store, V.P.Road, C.P. Tank, Mumbai were found in possession of 4 kgs. of mandrax tablets a psychotropic substance valued at Rs.40,000/- and cash of Rs.225/- in contravention of the provisions of Sec.8(c) of NDPS Act and thereby you have committed an offence punishable u/s.22 r/w 8(c) of NDPS Act 1985 and within my cognizance. SECONDLY : You accused abovenamed on 14.8.92 led the police at room No.73, 25/B Thakurdwar Road, Bombay and in said room you were found in possession of 99 kg. of mandrax tablets a psychotropic substance valued at Rs.9,90,000/- and one Antiq of Lord Parswhanatha, in contravention of the provision of Sec.8(c) of NDPS Act, 1985, and thereby committed an offence punishable u/s. 22 r/w 8(c) of NDPS Act, 1985, and within my cognizance. AND I DO HEREBY DIRECT YOU to be tried by me for the aforesaid charges." 3. The prosecution examined seven witnesses. : 6 : The prosecution also relied on the documentary evidence such as Chemical Analyser’s reports and panchanamas to prove the charges against the Appellant. The Trial Court on analysing the evidence on record found that the prosecution has proved beyond doubt the involvement of Appellant in the commission of the alleged offence and proceeded to convict the Appellant for offence punishable under Section 8(c) r/w Section 22 of the Act and directed the Appellant to undergo sentence of rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- (Rupees One Lakh), in default of payment of fine, to suffer further rigorous imprisonment for a period of three months. 4. The Trial Court has considered the argument canvassed on behalf of the Appellant about non-compliance of Section 42 and 50 respectively of the Act and rejected the same. However, no argument has been canvassed before this Court on the said issues, as the Counsel for the Appellant fairly accepts that the legal position is now well established and it will not be possible to overturn the opinion recorded by the Trial Court on those : 7 : aspects. 5. While questioning the correctness of the impugned decision of the Trial Court, broadly three submissions have been made before me. It was contended that the Chemical Analyser’s reports pressed into service by the prosecution will be of no avail. This is so because the prosecution has failed to examine the Chemical Analyser who issued the said reports. It may be mentioned that this contention was canvassed before the Trial Court but the same has been rejected. The second contention canvassed before this Court is that the reports issued by the Chemical Analyser are devoid of material details as to the basis on which the Chemical Analyser came to the conclusion that the articles sent to him for chemical analysis was narcotic drug. In absence of the basic details, the probative value of the reports would be questionable. Even this contention was raised before the Trial Court and has been answered against the Appellant. The third contention raised before me is that, what was seized by the Police was not what was sent to the Chemical Analyser and : 8 : for that matter, the reports issued by the Chemical Analyser are not in respect of the samples of items seized by the police from the Appellant and in turn, sent for chemical analysis. These are the only questions which are argued before me and with regard to which both the Counsel have taken me through the relevant record. 6. I shall straightaway consider the first contention raised by the Appellant that non-examination of Chemical Analyser was fatal to the prosecution case. To buttress this submission, reliance was placed on the decision of the Single Judge of our High Court reported in 1992 (1) 1992 (1) 1992 (1) Bom.C.R. 405 in the case of The State of Bom.C.R. 405 in the case of The State of Bom.C.R. 405 in the case of The State of Maharashtra vs. Jagdish B.Shah Maharashtra vs. Jagdish B.Shah Maharashtra vs. Jagdish B.Shah. Emphasis was placed on the exposition made in Paragraph 9 of this decision which reads thus : "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.), 56 Bom.L.R. 147; (In the matter of : 9 : Mr.D.v.Mr.S.,Advocates), 68 Bom.L.R. 228; and (C.H.Shah v. Malpathak), 74 Bom.L.R. 505. 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 U.C.R. (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 in evidence and, consequently, the order of acquittal recorded by the trial Court in these circumstances does not deserve to be interfered with." 7. I am conscious of the fact that it would appear that I am taking inconsistent view with the view expressed in the abovesaid decision. However, there are atleast two good reasons to answer the issue against the Appellant in this case. Firstly, because neither the abovesaid decision nor the three decisions referred to therein have had occasion to consider the efficacy of Section 293 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). Secondly, my task has been made easier because of the decisions of the : 10 : Supreme Court directly on point in issue. I shall deal with those decisions a little later. 8. There is no doubt that provisions of Section 293 of the Code are attracted even in respect of proceedings before the Special Court under the provisions of the Act, by virtue of mandate of Section 36-C of the Act. Section 36-C of the Act stipulates that save as otherwise provided in the Act, the provisions of the Code of Criminal Procedure, 1973 shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor. Thus understood, the regime of Section 293 of the Code will have to be kept in mind while answering the contention raised before this Court about the inadmissibility of the Chemical Analyser’s report in evidence. Before I advert to the decision of the Apex Court, I shall advert to the decision of the Division Bench of the Punjab and Haryana High Court in the case of Bhagwan Dass vs. State of Bhagwan Dass vs. State of Bhagwan Dass vs. State of : 11 : Punjab reported in 1982 Cri.L.J.2138 Punjab reported in 1982 Cri.L.J.2138 Punjab reported in 1982 Cri.L.J.2138. In Paragraph 5 of this decision, it is observed that since the enactment of Section 510 of the old Code, it was clearly settled law that barring cases where there was positive evidence of the tampering of sample, it was not incumbent for the prosecution to examine only or every person in the Office of the Chemical Examiner, who may have had the occasion to handle the sample. In Paragraph 7 of the same decision, it is observed that the statutory provisions seem to attach some sanctity to the report of the Government Scientific Experts including the Chemical Examiner and Assistant Chemical Examiner whose reports are made admissible even without the requirement of their stepping into the witness box unless expressly summoned by the Court. In Paragraph 13, the said High Court has observed thus: "13. Learned Counsel for the petitioners then made a vain attempt to fall back on S.45 of the Indian Evidence Act for contending that the report of the Chemical Examiner, as a whole, would not be admissible thereunder. It seems to be obvious that recourse to S.45 of the Indian Evidence Act, in this context, is : 12 : hardly permissible. It was not disputed before us that S.293 of the Code was a special provision which in particular terms made admissible the reports of those Scientific Experts which have been enumerated expressly in sub-sec.(4) of S.293 of the Code. It is obvious that special provisions of S.293 of the Code herein must prevail over the general provisions of the Evidence Act, on the hallowed rule of construction that the special overrides the general. Consequently, the particular provisions regarding the admissibility of the reports of the Chemical Examiner or Assistant Chemical Examiner to Government, provided under S.293 (4) (a) of the Code, are plainly applicable and any document purporting to be the report of such an expert can as a while be used as evidence at the trial. Now once such a report is made admissible by law, it seems to me as wholly hyper-technical to dissect it into different parts and hold certain parts thereof as being out of the ambit of such admissibility." 9. Reference was also made to the decision of the Single Judge of the Andhra Pradesh High Court reported in 1997 (2) Crimes 648 in the case of 1997 (2) Crimes 648 in the case of 1997 (2) Crimes 648 in the case of M/s.Visakha Agro Chemicals (P) Ltd. & Ors. vs. M/s.Visakha Agro Chemicals (P) Ltd. & Ors. vs. M/s.Visakha Agro Chemicals (P) Ltd. & Ors. vs. Fertiliser Inspector-cum-Assistant Director of Fertiliser Inspector-cum-Assistant Director of Fertiliser Inspector-cum-Assistant Director of Agriculture (Regular) Visakhapatnam & Anr. Agriculture (Regular) Visakhapatnam & Anr. Agriculture (Regular) Visakhapatnam & Anr. More or less similar contention was considered in the said case with reference to document Exhibit P4 issued by the Fertiliser Quality Control Laboratory, : 13 : Hyderabad. In Paragraph 10, it is observed that Certificates issued by the specified Officers in Section 293 of the Code, have to be accepted by the Court as valid evidence without examining the author of those documents. In that case, however, the Court observed that the principle underlying Section 293 of the Code will be of no avail to the prosecution under the Essential Commodities Act, 1955. As is mentioned earlier, there can be no manner of doubt that the argument of the Appellant that non-examination of Chemical Analyser is fatal to the prosecution case and for which reason, the Chemical Analyser’s reports though produced on record before the Trial Court, are inadmissible in evidence, will have to be stated to be rejected. For this purpose, it would be apposite to advert to the decision of the Constitution Bench of the Apex Court in the case of T.Mangaldas Raghavji Ruparel T.Mangaldas Raghavji Ruparel T.Mangaldas Raghavji Ruparel vs. Maharashtra State reported in AIR 1966 SC 128 vs. Maharashtra State reported in AIR 1966 SC 128 vs. Maharashtra State reported in AIR 1966 SC 128. In that case, the Court was considering whether the conviction under the provisions of Prevention of Food Adulteration Act could be based solely upon the report of the Public Analyst that the turmeric powder was adulterated. While considering this : 14 : point, the Apex Court in Paragraph 9 of its decision made reference to the decision of this Court in the case of State vs. Bhausa Hanmantsa reported in AIR 1962 Bom. 229 and to another decision of Kerala High Court in the case of City Corporation Trivandrum vs. Antony reported in ILR (1962) 1 Kerala 430. After analysing the decision of our High Court, the Apex Court proceeded to observe as follows: "It will thus be clear that the High Court did not hold that the certificate was by itself insufficient in law to sustain the conviction and indeed it could not well have said so in view of the provisions of S.510, Cr.P.C. What the High Court seems to have felt was that in circumstances like those present in the case before it, a Court may be justified in not acting upon a certificate of the Chemical Analyser unless that person was examined as a witness in the case. Sub-section (1) of S.510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code and sub-s.(2) thereof empowers the Court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard. It would, therefore, not be correct to say that where the provisions of sub-s.(2) of S.510 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as : 15 : having no weight." 10. It may be noted that Section 293 of the present Code is replication of Section 510 of the old Code. The Apex Court has noted in no uncertain terms that if certificate of the Chemical Analyser was placed before the Court, the same is admissible in evidence. Suffice it to observe that the argument that non-examination of the Chemical Analyser would render the said Certificate inadmissible, has been negated in this decision. Indeed, that does not mean that the Certificate so filed on record (u/s 293 of the Code) is a conclusive proof of the fact stated therein. . It is always open to the accused to rebut the position stated in the said certificate. It will be useful to refer to the recent decision of the Apex Court in the case of State of H.P. vs. Mast Ram State of H.P. vs. Mast Ram State of H.P. vs. Mast Ram reported in (2004) 8 SCC 660 reported in (2004) 8 SCC 660 reported in (2004) 8 SCC 660. In Para 6 of this decision, the Apex Court has observed thus : "6. Secondly, the ground on which the High Court has thrown out the prosecution story is the report of the ballistic expert. The report of the ballistic : 16 : expert (Ext.P-X) was signed by one Junior Scientific Officer. According to the High Court, a Junior Scientific Officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the forensic science laboratory report (Ext.P-X) has been submitted under the signatures of a Junior Scientific Officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a government scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court has completely overlooked the provision of sub-Section 293. What sub-section (4) of Section 293 envisages is that the court is to accept the documents issued by any of the six officers enumerated therein as valid evidence without examining the author of the documents." (emphasis supplied) 11. It will be useful also to refer to the exposition of the Apex Court in the case of Dhananjaya Reddy vs. State of Karnataka reported Dhananjaya Reddy vs. State of Karnataka reported Dhananjaya Reddy vs. State of Karnataka reported in (2001) 4 SCC 9 in (2001) 4 SCC 9 in (2001) 4 SCC 9. In that case, the Court was dealing with the report of the Serologist. The : 17 : Court observed in Paragraph 39 of the decision that such report can be used as evidence "without any formal proof" under Section 293 of the Code. Even in the case of Bhupender Singh vs. State of Punjab Bhupender Singh vs. State of Punjab Bhupender Singh vs. State of Punjab reported in (1988) 3 SCC 513 reported in (1988) 3 SCC 513 reported in (1988) 3 SCC 513 in paragraph 13 of the said decision, the Apex Court has observed that report such as Chemical Analyser’s report "does not require any formal proof." A priori, there is no manner of doubt that on account of non-examination of Chemical Analyser, the report of the Chemical Analyser does not become inadmissible. The same nevertheless will have to be taken into account by the Court. 12. That takes me to the next grievance made before this Court which grievance was also made before the Trial Court. It is submitted that the Chemical Analyser’s reports in the present case are devoid of material details so as to clearly indicate the basis on which the Chemical Analyser reached the opinion noted in the reports that the item which was sent to him for analysis was narcotic drug. This argument is essentially founded on the exposition of the Division Bench of : 18 : our High Court in the case of Nicklaus Peter Heel Nicklaus Peter Heel Nicklaus Peter Heel vs. State of Goa reported in 1998 (2) Mh.L.J. vs. State of Goa reported in 1998 (2) Mh.L.J. vs. State of Goa reported in 1998 (2) Mh.L.J. 884 884 884, which dictum has been reiterated in the subsequent decision of another Division Bench in the case of Dror Taskent & Anr. vs. State of Goa Dror Taskent & Anr. vs. State of Goa Dror Taskent & Anr. vs. State of Goa reported in II (1998) CCR 332 (DB) reported in II (1998) CCR 332 (DB) reported in II (1998) CCR 332 (DB). Relying on the exposition in this decision, it was contended that the Chemical Analyser’s report should have clearly mentioned the grounds or basis for reaching the opinion that the article sent to him for analysis was a narcotic drug. It is submitted that the Chemical Analyser’s report should necessarily contain the details of the test experiments or the methods employed by the Chemical Analyser for reaching the said conclusion and the data for forming opinion that the substance sent for analysis to him was contraband and prohibited under the Act. That a bald opinion of the expert, bereft of reasons and grounds, is of no help to the Court and it will be unsafe to record conviction on the basis of such opinion alone. This very contention was raised before the lower Court. 13. In the present case, the lower Court has : 19 : answered the issue in three ways. Firstly, it has observed that the Chemical Analyser’s reports which have come on record (Exhibits 19 to 22) were trustworthy and could be relied upon. It has then noted that the said reports clearly specify that the articles which were received for analysis by him were sealed and in intact condition and further that the chemical analysis was done which indicated the constituents of the said articles and also specifically gives the percentage of the contents of Methaqualone. The Trial Court has then proceeded to hold that there was other evidence on record to support the prosecution case. Inasmuch as, the discovery of contraband item weighing 99 kgs., which was in