Mela Singh vs State
1995 Latest Caselaw 158 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) The appellant Mela Singh was convicted by the trial court u/S. 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act) and sentenced to 12 years, R I. and to pay a fine of Rs. 1 lakh for being in illegal and unauthorised possession of 5" kgs. poppy husk.

(2) Briefly stated the prosecution case is that on 27.7.1990, S.I. Prakash Chand (P.W. 5) Along with A.S.I. Om Parkash was on patrol duty at departure hall of Inter-State Bus Terminal, Delhi. Following a tip off, a raiding party was organized at about 5.15 p.m. and the appellant was apprehended at platform Nos. 8 & 9 and from his possession 5i kgs. of poppy husk was seized vide seizure memo Ex PW. 5/A. The samples were sent for the Chemical examination & after receiving the report, charge sheet was laid.

(3) Appellant in his statement u/S. 313, Cr. P.C. stated that he was falsely implicated. Learned trial court accepted prosecution case and convicted appellant.

(4) In this appeal the main submission is that the report of the C.F.S.L. (Ex. PW5/D) is not admissible in evidence u/S. 293 Cr. P.C. as the same has not been made by an authority specified therein. Learned counsel for the appellant also submitted that there is no clinching evidence that the appellant was found in possession of the contraband.

(5) The first point to be determined in the appeal is whether the substance seized and produced in this case was poppy husk. In order to prove the said fact, the prosecution has relied on the report of the C F.S.L. (Ex. P.W. 5/D) which gave positive test for poppy husk. This report has been assailed by the appellant on the ground of its inadmissibility in evidence u/S. 293 Cr. P.C. Admittedly, this report is not by a Director or Deputy Director or Asstt. Director of Forensic Science Lab. as contemplated by S. 293 af the Cr. P.C. Perusal of the said report shows that (he same has been made by Shri C L. Bansa), Sr. Scientific Assistant, Central Forensic Lab., C B.L S. 293 Cr. P.C. reads(--)

(6) It has not been disputed before me that Sr. Scientific Assisstant, Cfsl does not fall in categories of the experts mentioned in Section 293. Shri C.L Bansal has not been examined in this case. Learned counsel for the appellant relying upon Heera Lal vs. State 52 : Dlt, Islam vs State (30) D R.J., Attar Singh vs. State 1994 (III)A.D. (D)525, contended that the said report not being under the hand of a Scientific expert mentioned in S. 293(4)(e) Cr. P.C. cannot be used as evidence in trial without the same being examined in this case. It has been held in these judgments that the report of Shri C.L. Bansal, Sr. Scientific Assistant, Cfsl can't be used in evidence as he does not fall in the categories of the experts mentioned in S. 293 Cr. P.C. After these decisions, a contrary view was taken by a learned single Judge of this court in Shankaria D. Shankar vs. State (1994) Iv A.D. (D)946 and it was laid down that question of proof of a document is a procedure and may be waived. According to the learned Judge, when a document is tendered and admitted in evidence without objection to its admissibility or mode of proof, the appellant can't be allowed to challenge its inadmissibility in appeal. This view is based upon the well-established principle of law that the rules as regards the production of a document and strict proof thereof, as contained in the Evidence Act, can be dispensed with by consent of the parties and once a relevant document is admitted in evidence without any objection to its mode of proof, its admissibility can't be challenged in appeal.

(7) In the instant case, the question is whether the rules of evidence as regards the production and strict proof of a document can be waived in a criminal case. Kenny answers this question in negative in Outlines of Criminal Law, 1971 Ed. P 472. He states that :

"A marked distinction between the civil and the criminal views of the law of evidence is that its rules may in civil cases be waived, either by consent or by an order made on a summons for directions ; but in criminal case the rules of evidence are matters public Jurisdiction, and can't be dispensed with by consent of parties. For, here, others than they, have an interest at stake. Not merely the single person accused, but also every other inhabitant of the realm, has an interest in seeing that the prisoner's liberty or life is not taken away except under the whole of the guards which the law has prescribed ....."

(8) It has been held in Koli Trikam Jivraj vs. State , "that in a criminal case a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of litigation either for the purpose of dispensing with proof at the trial or incidently as to any facts of the case. See Phipson's Manual of Evidence, 8th Ed., page 134. It is therefore, evident that the role that a defense lawyer plays in a criminal case is that of assisting the accused in defending the case. The lawyer has no implied authority to admit the guilt or facts incriminating (he accused."

(9) 1 may add here that the question posed by me in this case was not raised and considered in Shankaria's case (aupra) and the view taken by the learned Judge has been approved by a recent decision rendered by the D.B. of this court in Amarjit Singh vs. State Cr. 1 A. No. 91/92 D./2.12.1994. In view of the dictum laid down by the said D.B., I have no option but to hold that, the report (Ex. Public Witness .5/D) of Shri Bansal was tendered and admitted in evidence without objection to its inadmissibility or mode of proof, the appellent can't be allowed to challenge its inadmissibility in this appeal. Thus, the report (Ex. PW5/D.) clearly proves that the substance seized and produced in this case was poppy husk.

(10) Considerable criticism has been advanced on behalf of the appellant to the acceptability of the prosecution evidence by the learned Judge. S.I. Prakash Chand (PW.5), materially corroborated by Inspector Chander Mohan (P W.2) and Kallu Khan (P.W.3) testified that on 24.7.90, the appellant was apprehended at Inter State Bus Terminal, Delhi and an option was given to the appellant that his search could be effected before a Gazetted Officer or a M.M. as required by the mandatory provisions ofS. 50 of the Act. On ibis point, the testimony of S.I. Prakash Chand (P.W.5) also finds ample corroboration from the documents (Ex. Public Witness .5/A), Ex. Public Witness .5/C and Ex. Public Witness .2/A. It is also evident from the evidence of the said witnesses that S.I. Prakash Chand (P.W.5) conducted search of the accused and seized 5,000 kgs. of poppy husk from his possession vide seizure memo Ex. Public Witness 5/A. Nothing has been elicited in the cross exam. of the said witnesses to shake their credit. The trial Judge, who had occasion to watch the demeanour of the witnesses, believed them to be truthful and 1 am not inclined to differ on this count. Consequently, trial Judge has rightly held that on the day in question the contraband was seized from the conscious possession of the appellant in accordance with the procedure laid down in S. 5 of the Act.