Shankaria @ Shankar vs The State (Delhi Administration)
1994 Latest Caselaw 758 Del

JUDGMENT

Jaspal Singh, J.

(1) The appellant has challenged his conviction and sentence under section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the Act) on two grounds. Let me refer to them first. Their dissection would follow later.

(2) The appellant states that the learned Addition to sessions Judge has wrongly relied upon the report Ex. Public Witness 7/D made by Mr.C.L.Bansal, Senior Scientific Assistant, Central Forensic Laboratory, Central Bureau of Investigation. He submits that the said report being not by a Director or Deputy Director or Assistant Director of the Central or a State Forensic Laboratory and thus being not a statement under the hand of any of the experts mentioned in sub-section 4(e) of section 293 of the Code of Criminal procedure, it could not be taken to be admissible in evidence in view of the said provision of the Code and that once this portion is accepted it cannot be taken as established on the record that the substance recovered was opium In support my attention has been drawn to Heera Lal v.State ; Khalil Ahmed v. State, Crl. Appeal 80 of 1992 decided on October 27, 1994; Rajesh Kumar v. The State (Delhi Administion) Crl. Appeal No.110 of 1989 decided on October 18. 1994, Nizamuddin v. The State, Crl. Appeal No.82 of 1990 decided on September 14, 1994: and Islam v. The State (Delhi Admiinistration) .

(3) In Heera Lal v. State (supra) it was held that if the Report is not under the hand of a Scientific expert mentioned in sub-section 4(e) of section 293 of the Code, it cannot be used as evidence in trial without the same being proved. Same view has been taken in other cases cited in the preceding paragraph.

(4) Before I proceed further, it may be mentioned that though the learned counsel for the State did not allow the contention raised by the appellant go unchallenged, he did not rely upon any authority in support.

(5) Section 293 of the Code contains a special rule of evidence making a report under the hand of a Government scientific expert as referred to in sub-section (4) upon any matter or anything submitted to him for examination and report, admissible in evidence without calling such expert as a witness. However, even in such a case the report will have to be tendered in evidence before it can be made use of. The only protection afforded by this provision is that a report covered by this provision if tendered in evidence, would not require any formal proof though it would be open to the court, if it thinks fit, to call the examiner and examine him as to the subject-matter of the report.

(6) Admittedly, the report in the case before me being not by a Government Scientific expert, as referred to in sub-section (4) of section 293, formal proof would be required. What happened in this case is that the report was tendered by the investigating Officer and was admitted in evidence without objection as to its admissibility or mode of proof. It appears that at no stage of the trial not even at the stage of final arguments was any such objection taken. It is only now in appeal that objection as to its mode of proof is being raised. The question is, can such an objection be allowed to be taken now? The learned counsel for the appellant submits that the appellant can raise such an objection even in appeal and seeks to rely upon a judgment of this court in Attar Singh v. State, (Delhi Administration) 1994(III) Ad (Delhi) 626.

(7) Before I proceed to deal with the judgment in Attar Singh's case, I may hasten to add that in none of the judgments referred to above, the question posed by me was raised or considered.

(8) In Attar Singh's case objection was raised by the respondent State that mode of proof having been challenged in the trial court, it was not open to the appellant to raise it for the first time in appeal and in support reliance was placed upon the judgment of the Supreme Court in Phool Kumar v. Delhi Administration . However, the learned single judge distinguished the judgment in Phool Kumar's case on the ground that in the said case the report in question was under the hand of the Director of Finger Print Bureay, Phillore which was "admissible per se in terms of section 510 of the Code of Criminal Procedure before its amendment". The learned judge observed: "It is, thus, clear that the aforesaid judgment is to the effect that if a report which is admissible per se according to the' provisions of section 510, Criminal Procedure Code before its amendment corresponding to section 293, Code of Criminal Procedure 1973, and is once exhibited, no objection with regard to its admissibility can be taken in appeal for the first time."

(9) Let me emphasise that I am not dealing with the question of relevance of a document. The relevance of the report is not in dispute. What is in dispute is its proof. The question of proof of a document is a question of procedure and may be waived. When a party raises no objection 'to the proof of a document, he cannot raise the objection in appeal. In K..Latchayya Subadhi v. Seetaramayya , it was held: "THE rules as regards the production of documents and strict proof of documents, as contained in the Evidence Act, can be dispensed with, by consent of parties and, when the parties agreed to treat a document as evidence, it is not open to one side or the other, to object to such a document in appeal, or at a later stage. Any document may be objected to, if it is an irrelevant document; where the document is relevant and the contents are relevant, it is open to the other party to dispense with strict proof."

(10) In Bhagat Ram v. Khetu Ram, Air 1929 Pc 110, no objection was taken to the admissibility of a document at the trial. The Privy Council held it as admissible. The judgment of the Privy Council was approved by the Supreme Court in P.C. Purushothama v. S. Perumal, . In the case before the Supreme Court admissibility of the Police reports was challenged on the ground that the Head Constables who could have formally proved them had not been examined. Rejecting the contention, the court observed: 1s1 "THOSE reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility." It wa further contended in the said case that even it the Police reports were admissible, the court could not look into the contents of those documents. This contention too was rejected with the observation: "Once a document is properly admitted, the contents of the document are also admitted in evidence though those contents may not be conclusive evidence."

(11) Following the ) judgment of the Supreme Court in P.C. Purushothama v. S.Perumal (supra) the Calcutta High Court in Goswami Malti Vahuji Maharaj v. Purushottan: Lal, and a Division Bench of the Madras High Court in A.V.S. Perumal v. Vadivela Asari have held that where document is admitted in evidence without objection, objection to its admissibility cannot be raised later. To the same effect is the view taken by the Orissa High Court in Sailendra Kishore v. Harekrishna .

(12) Time now to revert back to Attar Singh's judgment (supra). It would go to show that it distinguishes the judgment of the Supreme Court in Phool Kumar v. Delhi Administration (supra) on the ground that it was based on section 510 of the Code as it stood before amendment. However, the judgment in Phool Kumar's case makes no reference to section 511) of the Code of Criminal Procedure as it stood before its amendment. It no where saves that the report was being held to be admissible on account of section 510 to the Code. The Apex Court treats it as admissible on the basis to general proposition of law that once a document is admitted in evidence without challenge to mode of proof, its being read into evidence would not be open to challenge in appeal. The Court thus followed what had already been held by it earlier. In any case, even it be held that the judgment in Phool Kumar's case does not favor the view I am inclined to take, it does not, at the same time, demolish it. The position remains that consistent view has been that once a relevant document is admitted in evidence without challenge to its mode of proof, its admissibility cannot be challenged in appeal on the ground that it had not been formally proved. Consequently, the admissibility of the report in question on the said ground is not now open to challenge.

(13) Though the appellant fails on the first point, his second contention that tile prosecution has hailed to prove its case beyond doubt invites serious consideration.

(14) The prosecution version is that on July 15, 1990 in consequence of secret information the appellant was apprehended and as he refused to take benefit of the offer to get his person searched in the presence of a gazetted officer or a Metropolitan Magistrate, the bag he was holding was searched and opium weighing 2 kilogram and 500) grams was recovered there from in the presence of the police party comprising the Station House Officer as well as a witness from the public.

(15) Is the prosecution version worthy of reliance? I feel not. The reasons follow.

(16) Whereas the case of the prosecution is that recovery was attested on July 15, 1990, as per Assistant Sub Inspector Sarv Dev Misra it was on January 15, 1990. As per 1PW 6 Kulwant Singh recovery was made in the presence of Assistant Commissioner of Police Nitya Nandan who had remained at the place of recovery till after the preparation of the documents. The Station House Officer belies him, for, as per him, recovery was made after the Assistant Commissioner of Police had left the place of recovery. Interestingly, Kulwant Singh gives the age of the Assistant Commissioner of Police as 50 years whereas, as per the Investigating Officer, the Assistant Commissioner of Police was only 25 vears of age. Not only this, whereas Kulwant Singh tells us that the Station House Officer had let the place of recovery while the Assistant Commissioner of Police was still there, the Station House Officer tells us that the Assistant Commissioner of Police had left in his presence. While the Station House Officer and the Investigating Officer say that the parcels containing case property and the sample had been deposited by the Station House officer with the Moharir Mal Khana, the entries in the register of Malkhana and the statement made in court by the Moharir Malkhana would show that it was not the Station House Officer but the investigating Officer who held deposited those parcels. And while I am on this, it may also be noticed that whereas according to the Moharir Malkhana the parcels in question were deposited with him by the investigating Officer on July 15, 1990, it is in the statement of the Investigating Officer, PW-7 Sub Inspector Sultan Singh that he as well as the Station House Officer had remained at the place of recovery till 12 midnight. If that be so how could the Investigating Officer or the Station House Officer deposit the parcels on July 15 itself? This, however, is still not the end to the matter. The only witness from the public namely Kulwant Singh says that the seals were applied only on the parcels and on no other document. He thus takes away the possibility of the seals having been used on the C.F.S.I.. Form. What is more, the Moharir Malkhana's register no where mentions that the C.F.S.L. Form was also deposited. The Investigating Officer does not say that the C.F.S.L. Form was deposited by him. Even the Moharir Malkhana, Head Constable Paramjit Singh (PW-4), no where says that the C.F.S.L. Form was deposited with him. He even does not say that he had handed over the C.F.S.L. Form to Constable Satya Narain for being delivered to the Central Forensic Science Laboratory. Thus it has to be taken that the Form in question was neither deposited with the Moharir Malkhana nor was it taken from him by the Constable who had deposited the sample parcel with the Central Forensic Science Laboratory.

(17) To my mind, what has been noticed by me above, is sufficient to cast grave suspicion in the veracity of the prosecution version. The benefit of it must go to the appellant. Consequently, by accepting the appeal, I hereby set aside the conviction and sentence of the appellant. He be released forthwith if not required in some other case.