Bombay High Court
Bhanudas Vasantrao More vs A.K. Thakker And Anr on 31 January, 2018
Bench: A.M. Badar
(201)APEALNo.5542006-5552006(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.554 OF 2006
Mr.Mirza Qumer Hyder,
Muslim, Indian Inhabitant,
Aged 40 years, Occupation-Business,
Resident of : Orlem Church, 101,
Spring Field No.2, Sunder Lane,
Malad (West), Mumbai
(At present Kolhapur Central Prison.) ... Appellant
V/s.
1. Mr.A.K.Thakker I.O.,
Narcotic Control Bureau,
3rd Floor, Exchange Building,
Ballard Peer, Mumbai.
2 The State of Maharashtra ... Respondents
WITH
CRIMINAL APPEAL NO.555 OF 2006
Mr.Bhanudas Vasantrao More,
Hindu, Indian Inhabitant,
Aged 40 years, Occupation-Business,
Resident Of : 12/C, Ganga Smruti,
Phoolpada Road, Virar (East),
Dist. - Thane. ... Appellant
V/s.
1. Mr.A.K.Thakker I.O.,
Narcotic Control Bureau,
3rd Floor, Exchange Building,
Ballard Peer, Mumbai.
2 The State of Maharashtra ... Respondents
Gaikwad RD 1/23
::: Uploaded on - 02/02/2018 ::: Downloaded on - 04/02/2018 01:39:00 :::
(201)APEALNo.5542006-5552006(J)
.....
Mr.Ayaz Khan with Dilip Mishra & Ms.Zehra Charania, Advocate
for the Appellant in APEAL/554/2006.
Ms.Nasrren S.K.Ayubi, Appointed Advocate for the Appellant in
APEAL/555/2006.
Mr.H.S.Venegaonkar, Advocate Respondent No.1/NCB.
Mr.S.V.Gavand, APP for the Respondent No.2/State.
....
CORAM : A.M.BADAR J.
DATED : 31st JANUARY 2018.
ORAL JUDGMENT :
1 Criminal Appeal No.554 of 2006 is filed by original
accused No.2 Mirza Qumer Hyder, whereas Criminal Appeal
No.555 of 2006 is filed by Bhanudas Vasantrao More - original
accused No.3. By these appeals, these appellants are challenging
the Judgment and Order passed by the learned Special Judge on
7th April 2006 in N.D.P.S.Special Case No.49 of 2001 thereby
convicting them of offences punishable under Sections 8(c) read
with Section 22, Section 29 as well as Section 27A read with
Section 30 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as 'N.D.P.S.Act' for the sake of
brevity). On each count, they both are sentenced to suffer
rigorous imprisonment for 10 years apart from payment of fine of
Rs.1,00,000/- by each of them and in default to undergo further
rigorous imprisonment for three months.
Gaikwad RD 2/23
(201)APEALNo.5542006-5552006(J)
2 Briefly stated facts leading to the prosecution of these
appellants/accused along with the co-accused are thus :
(a) On 08/02/2001, officers of the complainant - Narcotic
Control Bureau (hereinafter referred to as 'N.C.B.' for the sake
of brevity), Mumbai Zonal Unit, Mumbai received information
to the effect that one mini-truck bearing registration No.MH-
04-S-8235 is parked in the premises of M/s.High Point
Industries Limited at Plot No.V-9, MIDC Taloja, District
Raigad and the same is loaded with more than one tonne of
Mandrex Tablets - a psychotropic substance.
(b) In pursuant to the information, so received, officers of the
N.C.B. summoned two panchas and explained them the
information so received. The officers along with panchas then
visited the premises of M/s.High Point Industries at MIDC
Taloja. The mini-truck bearing registration No.MH-04-S-8235
was found parked inside the factory premises. Accused No.1
Shridhar Chennuri, the owner of the factory was also present
there. He informed the officers of the N.C.B. that the mini-
truck is parked in his factory premises by present
appellants/accused Mirza Qumer Hyder and Bhanudas More.
They had promised him to pay Rs.1000/- per day for parking
the vehicle in the premises.
Gaikwad RD 3/23
(201)APEALNo.5542006-5552006(J)
(c) The officers of the N.C.B. along with panchas waited in the
factory premises for arrival of the appellants/accused Nos.2
and 3. At about 1.15 p.m. of 08/02/2001, both the
appellants entered in the premises of M/s.High Point
Industries. They were accosted and were explained the
purpose of visit of the officers of the N.C.B. According to the
prosecution case, then the mini-truck bearing registration
No.MH-04-S-8235 came to be searched. Methaqualone tablets
weighing 1423.69 kg. stacked in 51 HDPE sacks, which were
kept in the boxes were found to be loaded in the said mini-
truck. Samples of 10 tablets each from those 51 bags were
drawn, sealed and labeled after those were tested positively
for Methaqualone. The bulk muddemal property also came to
be packed, sealed and labeled.
(d) After complying with the provisions of Section 50 of the
N.D.P.S.Act personal search of appellants/accused Nos.2 and
3 apart from accused No.1 was taken. Some documents,
visiting card, driving license as well as cash were found in
their possession.
(e) Search of Maruti car owned by appellant/accused No.2 Mirza
Qumer Hyder, which was parked outside the factory premises
came to be conducted. Apart from other articles, the same
Gaikwad RD 4/23
(201)APEALNo.5542006-5552006(J)
was found to be containing 22 Mandrex (Methaqualone)
tablets. Those were tested positively for Mathaqualone.
Samples consisting of 10 tablets came to be drawn, packed,
sealed and labeled. Rest of the muddemal was also packed,
sealed and labeled.
(f) Factory premises of the accused No.1 came to be searched,
but nothing incriminating was found. Thereafter,
panchanama of seizure of the contraband came to be
prepared.
(g) After registering the FIR against accused persons, routine
investigation followed. On completion of investigation, the
complaint against in all four accused persons including
appellants/accused Nos.2 and 3 came to be filed by P.W.No.2
Ashok Thakker, Intelligence Officer of the N.C.B., on
04/05/2001 for contravention of provisions of N.D.P.S.Act.
Necessary cognizance of the same came to be taken by issuing
the process. The learned trial Court then framed charge and
the same was explained to the accused persons including the
appellants. They abjured their guilt and claimed trial. In
order to bring home the guilt to the accused persons, the
prosecution has examined in all 31 witnesses. Investigating
Officer Namboodiri Prasannaa Shankar is examined as
P.W.No.1. The other important witness examined by the
Gaikwad RD 5/23
(201)APEALNo.5542006-5552006(J)
prosecution is P.W.No.31 Prof.Krishnacharya Govindacharya
Akamanchi, Head of the Department of Pharmaceutical
Sciences & Technology, Institute of Chemical Technology,
University of Mumbai, who claimed to be expert in
Pharmaceutical Chemistry as well as in manufacturing process
of pharmaceuticals.
(h) Defence of the accused persons was that of total denial.
However, they did not enter into defence. After hearing the
parties, the learned Special Judge came to the conclusion that
the appellants along with accused No.1 and deceased accused
No.4 entered in the criminal conspiracy for manufacturing,
acquiring, transporting as well as selling of Mandrex tablets in
contravention of provisions of N.D.P.S.Act 1985. The learned
Special Judge further held that the prosecution has
established that in pursuant to the conspiracy, the present
appellants have concealed 22 tablets as well as 1423.69 kg. of
Mandrex tablets (Methaqualone) in the Maruti Car bearing
registration No.MH-02-N-3317 as well as the mini-truck
bearing registration No.MH-04-S-8235 and transported the
same to M/s.High Point Industry at Taloja MIDC. The learned
trial Court further held that the appellants/accused in
pursuant to the criminal conspiracy installed machinery for
manufacturing Methaqualone powder required for
preparation of Mandrex tablets and the deceased accused
Gaikwad RD 6/23
(201)APEALNo.5542006-5552006(J)
No.4 allowed them to do so and assisted them in such
preparation. It is further held that the appellant/accused
No.2 Mirza Hyder has financed the appellant/accused No.3
Bhanudas More for purchasing machinery required for
manufacturing Methaqualone powder and Mandrex tablets
and along with co-accused, they were carrying illicit drug
trafficking activities at the factory at Taloja as well as
Dombivli. The appellants/accused along with deceased
accused used the factory premises at M/s.Arti Chemicals,
Phase II, MIDC, Dombivli for manufacturing of Methaqualone
powder required for manufacturing of Mandrex Tablet and
thereby contravened the provisions of the N.D.P.S.Act.
Accordingly, by the impugned Judgment and Order dated
07/04/2006, passed in N.D.P.S. Special Case No.49 of 2001,
the learned Special Judge was pleased to convict the
appellants/accused along with other co-accused and
sentenced them as indicated in opening paragraph of this
Judgment.
3 I heard Shri.Ayaz Khan as well as Ms.Nasreen Ayubi,
the learned Advocate for the appellants/accused. They vehemently
argued that appeal of the co-accused i.e. accused No.1 Shridhar
Chennuri bearing Criminal Appeal No.545 of 2006 has already
been allowed by this Court vide Judgment and Order dated 6 th
July 2010 and for the very same reason, these appellants who are
Gaikwad RD 7/23
(201)APEALNo.5542006-5552006(J)
the co-accused are also entitled for acquittal. The learned
Advocate appearing for the appellants/accused vehemently argued
that copies of six Chemical Analysis Reports were tendered on
record during the course of examination of the Investigating
Officer and those were marked as exhibits. Those Chemical
Analysis Reports are not duly proved and the prosecution has not
examined the Chemical Analyzer, who allegedly tested the seized
articles in order to demonstrate that the same is Methaqualone - a
psychotropic substance. It is further argued that P.W.No.31
Prof.Krishnacharya Govindacharya Akamanchi has not even
handled the alleged contraband and he had not analyzed the same
in order to conclude that the same is Methaqualone and, therefore,
evidence of P.W.No.31 Prof.Krishnacharya Govindacharya
Akamanchi, which is relied by the learned trial Court for
convicting the appellants/accused is of no assistance. P.W.No.31
Prof.Krishnacharya Govindacharya Akamanchi was not the
Analyzer in the case in hand.
4 I have also heard Shri.Venegaonkar, the learned
Advocate appearing for the respondent/NCB as well as the learned
Additional Public Prosecutor for the respondent/State. Shri
Venegaonkar, the learned Advocate appearing for the NCB drew
my attention to the provisions of Section 293 of the Code of
Criminal Procedure and more particularly to Sub-Section (2)
thereof and contended that it is for the Court to call and examine
Gaikwad RD 8/23
(201)APEALNo.5542006-5552006(J)
the Chemical Analyzer if it thinks fit. The Chemical Analysis
Report placed on record by the prosecuting agency was not at all
disputed by the defence and as such, there was no necessity of
proving the same formally by calling the Chemical Analyzer. It is
further argued that Section 293 of the Code of Criminal Procedure
makes it clear that there is no need of formally proving the
Chemical Analysis Report and, therefore, it cannot be said that the
learned Special Judge committed any error in convicting and
sentencing the appellants/accused for offences under the
N.D.P.S.Act.
5 The learned Advocate appearing for appellants have
placed reliance on following rulings.
(1) State of Maharashtra v. Jagdish Shah reported in 1992
(1) BCR 405.
(2) Raju Shrivastav v. State of Maharashtra reported in
2004 ALL M.R. (Cri.) 3053.
(3) Judgment of the Division Bench of Goa Bench of this
Court in Criminal Appeal No.27 of 1997 in the matter
of Deen Khan Mohamed v. State of Goa.
(4) Nicklaus Hell v. State of Goa reported in 1998 (2)
Mh.L.J. 884.
(5) Vinod @ Vinay @ Bhokanya v. State of Maharashtra
reported in 2006 ALL M.R. (Cri.) 53.
(6) Judgment of Nagpur Bench of this Court in Criminal
Appeal No.143 of 2003 in the matter of Sheikh Salim
Sheikh Chand v. State of Maharashtra.
Gaikwad RD 9/23
(201)APEALNo.5542006-5552006(J)
(7) State v. Pali Ram reported in 1979 AIR (SC) 14.
(8) Palaniswamy v. State reported in 1968 AIR (Bom) 127.
(9) Mohammad Hanif Mansoori v. State reported in 2003
ALL.M.R. (Cri.) 506.
6 I have carefully considered the rival submissions and
also perused the Record and Proceedings including the oral as well
as documentary evidence adduced by the prosecution.
7 Undisputedly, accused No.1 Shridhar Chennuri had
preferred an appeal bearing Criminal Appeal No.545 of 2006
challenging the impugned Judgment and Order of conviction and
resultant sentence imposed upon him by the learned Special
Judge, Mumbai and the said appeal came to be decided by this
Court vide Judgment and Order dated 6th July 2010. The said
appeal came to be allowed and the appellant therein i.e. original
accused No.1 Shridhar Chennuri came to be acquitted of offences
alleged against him by quashing and setting aside the impugned
Judgment and Order passed by the learned Special Judge,
Mumbai. This Court while deciding the said appeal relied on
Judgment in the matter of Nicklaus Peter Heel (supra) Murarilal
v. State of Madhya Pradesh reported in AIR 1980 SC 531 and
Suleman Usman Menon v. The State of Gujarat reported in 1961
(2) Cri.L.J. 78. In paragraph 9 and 10 of the Judgment in
Criminal Appeal No.545 of 2006 filed by accused No.1 Shridhar
Gaikwad RD 10/23
(201)APEALNo.5542006-5552006(J)
Chennuri, reasons for allowing appeal can be found. Those read
thus :
"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.
10. In the present case, therefore, the prosecution has
failed to establish that the contraband which was seized
by the raiding party was Mandrex 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."
Thus, this Court in the case in hand itself has held that
the prosecution has failed to establish that the material seized by
the prosecuting agency is Methaqualone - a psychotropic
substance.
Gaikwad RD 11/23
(201)APEALNo.5542006-5552006(J)
8 Now, let us consider the case of the appellants/
accused. As stated earlier, these are appeals at the instance of
original accused No.2 Mirza Hyder and No.3 Bhanudas More. It is
case of the prosecution that the accused persons entered into
criminal conspiracy to manufacture, transport and sale
Methaqualone by preparing the tablets known as Mandrex Tablets
and in execution of the said conspiracy, accused Nos.1 to 3 were
found in possession of 1423.69 kg. as well as 22 tablets of
Mandrex i.e. Methaqualone-a schedule psychotropic substance on
08/02/2001. According to the prosecution case, the
appellants/accused installed machinery in the factory premises
named as M/s.Arti Chemicals, MIDC, Dombivli for manufacturing
Methaqualone powder required for preparation of Mandrex
Tablets and accordingly, they manufactured Methaqualone
powder and converted it into Mandrex Tablets. The illicit
trafficking of this psychotropic substance was done with the aid of
accused No.1 Shridhar Chennuri and the deceased accused No.4,
who supplied necessary material for manufacturing Methaqualone
powder and Mandrex tablets.
9 Section 2(xxiii) of the N.D.P.S.Act defines the term
'psychotropic substance'. Any substance, natural or synthetic, or
any natural material or any salt or preparation of such substance
or material included in the list of psychotropic substances specified
in the Schedule to the said Act, is termed as the psychotropic
Gaikwad RD 12/23
(201)APEALNo.5542006-5552006(J)
substance. The Schedule appended to the said Act includes
Methaqualone in the list of psychotropic substance at Serial
Number 20. The Schedule shows that Methaqualone is
international non-proprietary name of psychotropic substance,
whereas its chemical name is '2-Methyl-3-0-toly1-4(3H)-
quinazolinone'. Bare perusal of this entry No.20 in the Schedule
appended to the N.D.P.S.Act, 1985 makes it clear that for
establishing contravention of the provisions of the said Act, it is
incumbent on the prosecution not only to prove that the substance
seized is Methaqualone, but it is also required to prove that the
said substance has the same chemical composition as is given in
the Schedule. In the case in hand, the prosecution has adduced
evidence of P.W.No.1 Namboodiri Prasannaa Shankar
Investigating Officer as well as evidence of other officers of the
N.C.B. and panch witness in order to establish a fact that from the
mini-truck bearing registration No.MH-04-S-8235 parked in the
compound of the factory premises known as M/s.High Point
Industries, Mandrex tablets weighing 1423.69 kg. came to be
seized whereas 22 such tablets came to be seized from the Maruti
Car bearing registration No.MH-02-N-3317 owned by
appellant/accused No.2 Mirza Hyder, which was parked outside
the said factory premises. Evidence on record shows that samples
were drawn from the seized material and those were packed,
sealed and labeled. P.W.No.1 Namboodiri Prasannaa Shankar, the
Intelligence Officer in the N.C.B. has categorically deposed that on
Gaikwad RD 13/23
(201)APEALNo.5542006-5552006(J)
09/08/2001, he has forwarded seized samples for chemical
analysis to the office of the 'Deputy C.C.' The manner in which the
reports of chemical analysis of the seized samples are produced
before the learned Special Judge has also come on record through
the evidence of P.W.No.1 Namboodiri Prasannaa Shankar. In
paragraph 16 of his chief-examination, this witness has stated
thus:
".........Two copies of test memos were retained by the
office of Dy.C.C. and one copy was returned back - after
mentioning thereon Lab Number and date. I am filling on
record six test memos. They are admitted in the evidence
and marked at Ex.33 colly. ......."
10 This evidence of P.W.No.1 Namboodiri Prasannaa
Shankar goes to show that the report of chemical analysis of
seized samples forwarded to the Chemical Analyzer were not
annexed to the complaint, but those were tendered across the bar
by P.W.No.1 Namboodiri Prasannaa Shankar while his evidence
was being recorded by the learned Special Judge, Mumbai. The
learned Special Judge after tendering of the Chemical Analysis
Reports by P.W.No.1 Namboodiri Prasannaa Shankar had taken
them on record with an observation that those are admitted in
evidence and marked at Exhibit 33 colly. This aspect is relevant
because in the impugned Judgment and Order of conviction and
resultant sentence, the contents of the Chemical Analysis Report
Gaikwad RD 14/23
(201)APEALNo.5542006-5552006(J)
are accepted with a reasoning that the same needs to be relied as
filing of the Chemical Analysis Report is not disputed by the
accused persons.
11 Perusal of the impugned Judgment and Order in
Special Case No.29 of 2001 shows that on behalf of defence, it was
argued that the chemical analysis reports were not duly proved
and non-examination of the Chemical Analyzer is fatal to the
prosecution. To buttress this submission, the defence has relied on
several Judgments. The learned Special Judge in paragraph 224
and more particularly at internal page No.422 of the impugned
Judgment and Order has considered the evidence of P.W.No.1
Namboodiri Prasannaa Shankar and stated that Chemical Analysis
Reports were taken on record and marked as Exh.34 Colly., since
not disputed by the accused. In paragraph 225 of the impugned
Judgment and Order, the learned Special Judge has held that the
prosecution has rightly contended that no steps are taken by the
defence for examination of the Chemical Analyzer and in their
statements under Section 313 of the Code of Criminal Procedure,
the accused persons have only stated that the contents of the
Chemical Analysis Reports are false. The learned Special Judge
has further observed that "nothing else is stated by any of the
accused". It was further observed in paragraph 225 of the
impugned Judgment and Order by the learned Special Judge that
in fact, there was no necessity to put the Chemical Analysis
Gaikwad RD 15/23
(201)APEALNo.5542006-5552006(J)
Reports to the accused for seeking their explanation because the
defence had not disputed Chemical Analysis Reports (Exh.34
Colly). In paragraph 226 of the impugned Judgment and Order,
the learned Special Judge has reiterated that in the case in hand,
on tendering on record, the Chemical Analysis Reports (Exh.34
Colly) by P.W.No.1 Namboodiri Prasannaa Shankar, same came to
be admitted since are not disputed by the defence. The learned
Special Judge then considered the evidence of P.W.No.31
Prof.Krishnacharya Govindacharya Akamanchi and held that from
the evidence of P.W.No.31 Prof.Krishnacharya Govindacharya
Akamanchi neither it is brought on record nor it can be said that
Methaqualone known by a particular name alone is prosecutable
under the provisions of N.D.P.S.Act and though the Chemical
Analyzer is not examined, from the evidence on record, it can
reliably be held that the contraband recovered in this case and the
samples which is tested positive is Methaqualone is prosecutable
under the provisions of N.D.P.S.Act. With this reasoning, the
reports of chemical analysis (Exh.34 Colly) were accepted by the
learned Special Judge for holding that seized substance was a
psychotropic substance falling in Entry No.20 i.e. Methaqualone
and accordingly, the appellants/accused along with co-accused
came to be convicted.
12 Undisputedly, in the case in hand, Chemical Analyzer
is not examined by the prosecution as its witness. P.W.No.31
Prof.Krishnacharya Govindacharya Akamanchi, who at the
Gaikwad RD 16/23
(201)APEALNo.5542006-5552006(J)
relevant time was working as Professor of Pharmaceutical
Chemistry and Head of the Department of Pharmaceutical
Sciences & Technology, Institute of Chemical Technology,
University of Mumbai had not analyzed the seized substance at
any point of time. It would be apposite to quote the relevant
portion of one of the reports of chemical analysis of the seized
substance, which came to be marked as Exhibit 34 Colly., by the
learned trial Judge. It reads as under :
"Section - II
FOR USE IN THE LABORATORY.
1. Date of Receipt in the Laboratory. 9.2.2001
2. Weight (Net weight as found in the 10.739 gm.
laboratory)
3. Date of Forwarding Test Results : Report : Sample is
in the form of off-
thereof
white round tablets.
It answers tests for
(A) Quantitative Tests the presence of
Methaqualone.
(B) Results of Quantitative Test : Remnant sample
returned Facsimile of
the Dy.C.C. seal
(C) General observation of the
under for sealing the
Chemist : remnant sample is
given below.
Sd/-
23.2.2001
(U.N.SINHA)
Gaikwad RD 17/23
(201)APEALNo.5542006-5552006(J)
Sd/- 23.2.2001
Name and Signature of the Chemist
B.R.Verma, Chemical Examiner,
Grade-I."
13 Now, let us examine whether there is positive evidence
to conclude that the seized article was a contraband and
prohibited substance under the N.D.P.S.Act. The report of the
chemical analysis of the seized sample is to the effect that the
seized samples answer tests for the presence of Methaqualone.
Except this, there is nothing in the reports of the chemical analysis
of the seized substance which are six in numbers. The question is
whether mere marking the reports of chemical analysis of seized
sample as exhibit would amount to proof of contents of those
documents in the form of report of chemical analysis. The
principle is that documents sought to be tendered in evidence are
required to be proved strictly in accordance with the principle
provided in the Evidence Act. It is well settled that the documents
are required to be proved through primary evidence. Mere
marking of exhibit on the document does not amount to proof of
their contents. However, Section 293 provides that any document
purporting to be a report under the hand of a Government
Scientific Expert to whom this Section applies, upon any matter or
thing duly submitted to him for analysis, may be used as evidence
in any inquiry, trial or other proceeding under this Code. As per
provisions of Sub-Section (4) of Section 293, this Section is
Gaikwad RD 18/23
(201)APEALNo.5542006-5552006(J)
applicable to the Director, Deputy Director or Assistant Director of
a Central Forensic Science Laboratory or a State Forensic Science
Laboratory. In the case in hand, there is no evidence to
demonstrate that chemical analysis of the seized substance was
conducted by the Deputy Director or Assistant Director of a
Central Forensic Science Laboratory or a State Forensic Science
Laboratory. It is not demonstrated that chemical analysis of the
seized substance was done by the Government Scientific Expert
mentioned in Sub-Section (4) of Section 293 of the Code of
Criminal Procedure. The reports at Exhibit 34 Colly., are signed
by person named B.R.Verma, Chemical Examiner, Grade-I.
Further, the reports at Exhibit 34 Colly. are conspicuously silent
about the fact that the signatory to those reports is an authority or
expert falling in Sub-Section (4) of Section 293 of the Code of
Criminal Procedure. P.W.No.1 Namboodiri Prasannaa Shankar,
the Intelligence Officer of the N.C.B., in paragraph 6 of his
evidence has only stated that he has forwarded the seized sample
to "Dy.C.C.". It is not explained by the prosecution as to whether
this Authority (Dy.C.C.) is an Authority to which Section 293 of
the Code of Criminal Procedure applies making the report given by
it admissible in evidence in the trial.
14 Be that as it may, even if it is admitted that reports of
chemical analysis of seized substance at Exhibit 34 Colly. are given
by the Authorities or Experts as envisaged by Section 293 of the
Code of Criminal Procedure, then also it is clear that the reports at
Gaikwad RD 19/23
(201)APEALNo.5542006-5552006(J)
Exhibit 34 Colly. does not contain any material to point out which
scientific tests were conducted on the seized substance in order to
come to the conclusion that the same is Methaqualone found
under Entry No.20 of the Schedule to the N.D.P.S.Act. Before such
C.A.Reports can be accepted and acted upon to pass an order of
conviction and sentence, the Court must have an opportunity to
independently assess and appreciate such evidence on the basis of
scientific test conducted for arriving at a given conclusion. The
Court cannot surrender or abdicate its judicial function to the bare
opinion of the Chemical Analyzer. Even if Section 293 of the Code
of Criminal Procedure provides that the report of the experts
mentioned in the said Section can be admitted in evidence and
accepted without giving evidence before the Court, that by itself
does not mean that the same can be accepted as a gospel truth,
particularly when such report is bereft of the details of the tests
conducted by the Chemical Analyzer for arrival at the conclusion
that the seized substance is Methaqualone as found in Entry No.20
to the Schedule appended to the N.D.P.S.Act. I have already
reproduced the contents of Chemical Analysis Report (Exhibit 34
Colly), wherein a sweeping statement is made by the Chemical
Analyzer that the sample in the form of off-white round tablets
answers test for the presence of Methaqualone. Reports at Exhibit
34 Colly. does not show which tests or experiments were
performed by the Chemical analyzer and what was the factual
data of such tests and experiments conducted by him leading to
Gaikwad RD 20/23
(201)APEALNo.5542006-5552006(J)
his conclusion that the seized substance is Methaqualone - a
psychotropic substance. There is no iota of evidence on record to
demonstrate the basis on which the opinion that the seized
substance is Methaqualone covered by Entry No.20 of the
Schedule is formed. In absence of factual data of tests and
experiments, if any, conducted by the Chemical Analyzer,
Chemical Analysis Reports at Exh.34 Colly. have no value to come
to the conclusion that the seized substance was a psychotropic
substance. Valuable reference to this proposition can be had from
the Judgment of this Court in the matter of Dan Karpman & Anr.
v. State of Goa reported in IV(1998) CCR 640 (DB). Similarly, in
the matter of Nicklaus Peter Hell (supra) relied by the learned
Advocate for the appellants/accused, it is held by the Division
Bench of this Court that taking into the legislative intent, the
evidence of Chemical Analyzer in the case coming under the
N.D.P.S.Act has to be strictly and carefully analyzed. The recovery
and chemical analysis of the substance covered by the N.D.P.S.Act
is very important and the Court must be alive to the situation
where innocent people are likely to be implicated and subjected to
rigorous imprisonment prescribed by the said Act. The Division
Bench of this Court further held that the expert opinion is only an
opinion. What amount of credibility or reliability could be
attached to this opinion is a matter for the Court depending upon
facts and circumstances of each case. In the case in hand, neither
the Chemical Analyzer is examined by the prosecution nor the
Gaikwad RD 21/23
(201)APEALNo.5542006-5552006(J)
reports of chemical analysis Exhibit 34 Colly. contains any factual
data regarding test or experiments conducted by the Analyzer on
the seized substance for arriving at a conclusion that the same is a
scheduled psychotropic substance. Thus, the Chemical Analysis
Reports which only contains the conclusion or opinion of the
Chemical Analyzer is of no avail to the prosecution.
15 This Court in Criminal Appeal No.545 of 2006 filed by
the appellant/original accused No.1 has considered the aspect as
to whether there is positive evidence to conclude that the seized
article was a contraband or prohibited substance and came to the
conclusion that the prosecution has failed to establish that the
contraband which was seized by the raiding party was
Methaqualone/Mandrex Tablet. There is no reason to deviate
from this conclusion particularly when in the matter of Suleman
Usman Menon (supra), the Honourable Apex Court has
categorically held that the report of the Chemical Analyzer 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. All these
factors are missing from the reports of chemical analysis at Exhibit
34 Colly. Therefore, it cannot be positively said that the seized
substance is Methaqualone falling in Entry No.20 of the Schedule
appended to the N.D.P.S.Act. The appellants/accused, as such, are
entitled for the benefit of doubt.
Gaikwad RD 22/23
(201)APEALNo.5542006-5552006(J)
16 In this view of the matter, only because the
appellants/accused had not objected to filing of the Chemical
Analysis Reports (Exhibit 34 Colly.) the prosecution case cannot be
held to be proved. The duty to prove its case by adducing clear
and cogent evidence is always on the prosecution and in the case
in hand, the prosecution has not discharged his onus to prove
beyond all reasonable doubt that the seized article was a
contraband or prohibited substance. In the result, the following
order :
(i) Both the appeals are allowed.
(ii) The appellants/accused are acquitted of the offences with
with they were charged. The impugned Judgment and
Order of the learned Special Judge convicting and
sentencing the appellants/accused for offences under the
N.D.P.S.Act is quashed and set aside.
(iii) The appellants/accused are acquitted of offences alleged
against them and they are directed to be released
forthwith, if not required in any other case.
(iv) Fine amount, if any, paid by them be refunded to them.
(v) It is reported that appellant/accused Mirza Qumer Hyder
is on bail. His bail bond stands cancelled.
(A.M.BADAR J.)
Gaikwad RD 23/23
