At Open Air Jail vs State Of Punjab
2021 Latest Caselaw 4063 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 24TH DAY OF AUGUST, 2021
                           BEFORE




                                                                  .
              HON'BLE MR. JUSTICE SANDEEP SHARMA





                      CRIMINAL REVISION NO. 277 of 2020

    Between:-





    VISHAMBAHAR ISIAH, SON OF
    SHRI DEVENDER, 28 MAIN ST.
    TURLAND VT. UNITED STATES
    OF    AMERICA,   PRESENTLY
    LODGED IN JUDICIAL CUSTODY





    AT OPEN AIR JAIL, BILASPUR,
    DISTRICT BILASPUR, H.P.
                                                        ......PETITIONERS
    (BY   MR.   NARESHWAR    SINGH
    CHANDEL, SENIOR ADVOCATE WITH

    MR. VIJAY CHAUDHARY, ADVOCATE)

    AND

    STATE OF HIMACHAL PRADESH.


                                                        ......RESPONDENT

    (BY MR. SUDHIR BHATNAGAR AND
    MR.    DESH    RAJ   THAKUR,




    ADDITIONAL          ADVOCATE
    GENERALS WITH MR. R.P. SINGH,





    MR. NARINDER THAKUR AND MR.
    KAMAL      SHARMA,    DEPUTY
    ADVOCATE GENERALS)





    Whether approved for reporting1? Yes.


     This petition coming on for orders this day, the Court passed the following:

                         ORDER

Being aggrieved and dissatisfied with the order dated

25.09.2020, passed by learned Special Judge-II, Kullu, H.P., in Cr. MP

No. 221 of 2020, whereby an application under Section 293(2) of

Cr.P.C, having been filed by the petitioner/accused (hereinafter referred

to as 'accused') for summoning Sh. Kapil Sharma, Assistant Director,

State Forensic Science Laboratory, Junga for cross-examination, came

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to be dismissed, accused has approached this Court in the instant

proceedings filed under Section 397 read with Section 482 of Cr.P.C.,

praying therein to set aside the aforesaid impugned order.

2. For having bird's eye view of the matter, certain

undisputed facts, which may be material for adjudication of the case at

hand are that a case under Sections 20 & 21 of NDPS Act and Section

40 of the Excise Act, came to be lodged against the accused, in the

year 2017 and since then, he is behind the bars. After completion of

investigation, police has already presented the challan in the

competent Court of law. Since, accused was not satisfied with the

report given by State Forensic Science Laboratory, Junga, qua the

contraband allegedly recovered from his conscious possession, he

filed an application under Section 52 A of NDPS Act, praying therein for

retesting of samples, however, such application, was dismissed by

learned trial Court on 20.09.2018, on the ground of delay. Being

dissatisfied with the aforesaid order passed by learned trial Court,

accused preferred a petition under Section 482 Cr.P.C, in this Court,

however, same is pending adjudication till date. After framing of

charge, under Sections 20 & 21 of NDPS, Act and Section 40 of H.P.

Excise Act, evidence of prosecution has commenced. While

prosecution witnesses were being examined, accused filed an

application under Section 293 (2) Cr.P.C, praying therein to summon

Sh. Kapil Sharma, Assistant Director, State Forensic Science

Laboratory, Junga, for cross-examination qua the report of State FSL,

submitted by him in the case at hand (Annexure P-4). In the aforesaid

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application, accused submitted that samples contained in Mark 1 & 2,

do not fall within the ambit of NDPS Act, as neither it is preparation of

Cannabis nor it is Hashish oil, as alleged by prosecution and as such,

person responsible for rendering report deserves to be cross-examined

qua the aforesaid issue. Accused further submitted before the Court

below that as per Section 293(1) of Cr.P.C, report submitted by

Assistant Director is per se admissible for evidence and same can be

used against him in the trial. He submitted that in case he is not

provided an opportunity to cross-examine the person responsible for

giving report, same shall remain un-rebutted and he can be convicted

on the basis of the same. Accused stated before the Court below that

since report of expert is completely vague, no reliance, if any, can be

placed upon the same, but he can prove such fact only by cross-

examining the person responsible for giving the report. Besides above,

accused also prayed that with a view to prove his innocence, chemical

analyst who has rendered the report, may be examined at the first

instance. However, fact remains that aforesaid application having

been filed by accused, came to be rejected vide order dated

25.09.2020 (Annexure P-5) on the ground that witness intended to be

examined has already been listed in memorandum filed by prosecution

and as and when, he is examined by prosecution, prayer for his cross-

examination can be made. Besides above, Court below held that

accused has not yet entered his defence and as such, his prayer to

summon a chemical analyst for cross-examination cannot be accepted.

Court below, ordered that accused has such a right only when next

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stage is reached and not on an earlier stage. In the impugned order,

learned Court below has observed that accused can summon and

examine any witness after he or she enters into his/her defence and it

is prerogative of the prosecution to call or not call a particular witness

in support of their case, especially, when accused is yet to enter upon

his defence. In the aforesaid background, accused has approached

this Court in the instant proceedings.

3. Having heard learned counsel representing the

parties and perused the material available on record, this Court finds

that there is no dispute that Sh. Kapil Sharma, Assistant Director, State

FSL, Jugna, has been cited as one of the prosecution witness, at Sl.

No.28-A. It is also not in dispute that as of today, more than five

prosecution witnesses stand examined. Similarly, there can't be any

dispute that report of chemical analyst is otherwise per se admissible

and is not required to be proved by the author of the same, rather

same can be entered in evidence by public prosecutor.

Apprehension/grouse of the accused as appears from the grounds

taken in the instant petition is that since report of chemical analyst is

per se admissible in evidence, there is every likelihood of prosecution

not examining author of the report and if it is so permitted, great

prejudice would be caused to the accused, who in that event, would be

deprived of cross-examining the author of the report. Since very case

of accused is that no prohibited drug as defined under NDPS Act ever

came to be recovered from his conscious possession and report

submitted by State FSL is totally contrary to the record, coupled with

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the fact that entire case of the prosecution hinges upon report of the

chemical analyst, prayer has been made on his behalf to provide an

opportunity to him to cross-examine chemical analyst qua the report

submitted by him. If the order impugned in the instant proceedings,

whereby, application under Section 293(2) Cr.P.C filed by the accused,

came to be rejected, is perused in its entirety, it suggests that the

learned Court below rejected the application on the ground that prayer

made on behalf of the accused cannot be accepted till the time he

enters upon his defence, meaning thereby, accused with a view to

cross-examine author of the chemical report is to wait till the time his

statement is recorded under Section 313 Cr.P.C

4. Mr. N.S. Chandel, learned Senior Counsel, duly

assisted by Mr. Vijay Chaudhary, Advocate, representing the accused,

argued that if aforesaid reasoning given by Court below is accepted, it

would mean that accused would be compelled to summon author of

the chemical report as a witness in defence and if it is so permitted, it

would be fatal to his case. Rather as per Section 293(2) Cr.P.C, report

submitted by chemical analyst though is per se admissible, but same

cannot be accepted mechanically by the court, rather Court on its own

motion or on the application filed by accused is under obligation to

summon author of the report enabling accused to cross-examine him

qua the report submitted by him. Mr. Chandel, further argued that

since very object and purpose of criminal jurisprudence is to provide an

adequate opportunity to prove innocence of the accused, it is not

understood what prejudice would be caused to the prosecution, if

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chemical analyst cited as a prosecution witness is examined at the first

instance. Lastly, Mr. Chandel, argued that once challenge is laid to the

authenticity and correctness of the report submitted by chemical

analyst, it is settled law that opportunity of cross-examination is

required to be provided to the accused.

5. Mr. Sudhir Bhatnagar, learned Additional Advocate

General while supporting the order impugned in the instant

proceedings, contended that there is no illegality and infirmity in the

same and as such, no interference is called for. Mr. Bhatnagar,

argued that otherwise also the present petition is premature because

question with regard to his prayer to cross-examine the author of the

report would arise when such person is examined qua the report or

chemical report is tendered in evidence by public prosecutor. Mr.

Bhatnagar, further argued that till the time accused does not enter

upon his defence, he is otherwise estopped from filing application,

seeking therein permission to cross-examine the author of the report.

6. This Court finds from the record that from the day

one, accused herein, is not satisfied with the report submitted by

chemical analyst qua the contraband allegedly recovered from his

possession and as such, immediately after framing of charge, he filed

an application under Section 52 of NDPS Act, praying therein for

retesting of the samples drawn by Investigating Agency at the time of

recovery, however, such application, filed by him, was dismissed by

learned trial Court on the ground of delay in the light of judgment

passed by Hon'ble Apex Court in Than Singh's case. Accused laid

.

challenge to aforesaid order on the ground of delay. However,

aforesaid order came to be laid challenge before this Court in the

proceedings under Section 482 Cr.P.C, but same are still pending.

During pendency of aforesaid petition before this Court, accused filed

an application under Section 293(2) Cr.P.C, praying therein to afford an

opportunity to him to cross-examine chemical analyst qua his report.

Though, learned Court below, is right in observing in the impugned

order that appropriate stage is yet to come because name of Sh. Kapil

Sharma, Assistant Director, State FSL, Junga, finds mention in the list

of prosecution witnesses, but if impugned order passed by Court below

is read in its entirety, there appears to be considerable force in the

submission of Mr. Nareshwar Singh Chandel, learned Senior Counsel,

that the findings returned by Court below that prayer to cross-examine

particular witness can only be accepted at the behest of accused once

he or she enters upon his/her defence, is not based upon proper

appreciation of provisions contained under Section 293 Cr.P.C. At this

stage, it would be apt to take note of provision under Section 293(2)

Cr.P.C., which reads as under:

293. Reports of certain Government scientific experts. (1) 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 examination or analy- sis and report in the course of any proceeding under this Code,

may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

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(3) Where any such expert is summoned by a Court and he is

unable to attend personally, he may, unless the Court has ex- pressly directed him to appear personally, depute any responsible

officer working with him to attend the Court, if such officer is con- versant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific

experts, namely:-

(a) any Chemical Examiner or Assistant Chemical Ex-

aminer to Government;

                   (b)      the Chief Inspector of- Explosives;

                   (c)      the Director of the Finger Print Bureau;
                   (d)      the Director, Haffkeine Institute, Bombay;
                   (e)      the Director, Deputy Director or Assistant Director] of

a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.

7. From the bare reading of the aforesaid provision of

law, it is amply clear that report given by Government Scientific

Experts namely any Chemical Examiner or Assistant Chemical

Examiner to Government;, the Chief Inspector of- Explosives; the

Director of the Finger Print Bureau; the Director, Haffkeine Institute,

Bombay; the Director, Deputy Director or Assistant Director of a

Central Forensic Science Laboratory or a State Forensic Science

Laboratory; the Serologist to the Government or any other

Government Scientific Expert specified by notification by the Central

Government for this purpose is per se admissible and need not to be

proved by author of the same, rather same can be tendered in

evidence by public prosecutor. Sub-section (2) of Section 293 Cr.P.C,

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though provides that Court may, if it thinks fit, summon and examine any

such expert as to the subject- matter of his report , however, bare reading

of aforesaid provision of law, nowhere suggests that Court on the

application, if any, filed by accused, can also summon author of the

report for examination, but by now, it is well settled that Court either on

its own motion or on the application having been filed by the accused

under Section 293(2) Cr.P.C, can ask officers as detailed in Section

293 (4) Cr.P.C for examination qua the report submitted by them.

8. Mr. Sudhir Bhatnagar, learned Additional Advocate

General, while referring to Section 293 Cr.P.C, contended that though

there is provision which enables Court to summon author of the report

for cross-examination, but definitely this Section doesn't talk about the

application, if any, made on behalf of the accused for summoning

author of the report for cross-examination. As has been fairly stated

hereinabove that though there is no such provision in Section 293

Cr.P.C, which talks about filing of an application by the accused,

praying therein to summon author of the report, but Hon'ble Apex Court

as well as other Constitutional Courts, in catena of cases, have held

that once report of chemical analyst is accepted in evidence, it is

bounden duty of the Court to examine author of the report either on its

own motion or on the application having been filed by accused.

Reliance in this regard is placed upon judgment of Rajasthan High

Court in Abid Beig v. State of Rajasthan, 2012 (3) Criminal Court

Cases 696 (Rajasthan), wherein it has been held as under:

"19. But this is not the complete ambit and scope of this provi-

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sion. Merely because the report is relevant, and admissible and

can be used as a evidence, it does not mean that its contents should be accepted ipsi dixit by the trial court. Sub-section (2) em-

powers the court to summon and to examine the maker of the re- port as a witness, if the court thinks fit. The said discretion can be used by the trial Court either suo-motu, or upon an application moved by the prosecution, or by the accused. Thus, the power un-

der sub-section (2) can be used either suo-motu, or at the instance of the accused person. This is in the fitness of things. For, in case the report were to be used as an incriminatory piece of evidence

against the accused, obviously, he must be given a chance to chal-

lenge the authenticity and the veracity of the contents of the report. His right to cross-examine the expert cannot be denied to him, os- tensibly on the ground that the report can be "used as evidence" without being proven by a witness. Keeping in mind the concept of

a fair trial, keeping in mind the principles of Natural Justice, it is, thus, imperative that before a report can be "used as evidence", an

opportunity should be given to the accused to challenge the same. In large number of cases, it has come to the notice of this court that

such reports are pointed out to the accused only at the time of recording his statement under Section 313 Cr.P.C, as was done in

the present case. However, the adoption of such a procedure by the learned trial court deprives the accused of his valuable right to challenge the report under Section 293(2) Cr.P.C It denies him a fair trial. Hence, before a report can be "used as evidence", the ex- istence of the document should be brought to the notice of the ac- cused. He should be given an opportunity to challenge the same. In case, he were to request the trial Court to summon the expert and to examine him, such a request ordinarily should be granted. He should be given an opportunity to cross-examine the expert about the basis of the contents of the report. Since the report contains the

opinion of an expert, the accused should be given a chance to question and to demonstrate the weakness in the opinion. Although the report can be used as evidence, but it cannot be accepted as the gospel truth unless it is subjected to cross-examination. It is

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only when an accused forgoes his right to challenge the report, that

report should be "used as evidence." For, by his refusal to chal- lenge the same, the accused is deemed to have accepted the au-

thenticity and veracity of the contents of the report. But sub-section (2) bestows a right on the accused to challenge the same. The said right is a substantive right which must be brought to the notice of the accused. By not bringing the said right to his notice, the right is

reduced to being merely illusionary. Since the trial Judge is not just a mute witness to a trial, but is supposed to play a pro-active role, it is necessary for the learned trial judge to bring the existence

of sub-section (2) of Section 293 Cr.P.C to the notice of the ac-

cused."

9. In the aforesaid judgment, it has been categorically

held that power under sub-section (2) of Section 293 Cr.P.C can be

used either sue motu or at the instance of accused person. In case

reports were to be used as incriminatory piece of evidence against the

accused, he must be given chance to challenge the authenticity and

veracity of the report and as such right to cross-examine expert cannot

be denied to him on the ground that report can be used as evidence

without being proven by a witness. Reliance is also placed on

judgment rendered by Punjab and Haryana High Court in Bhagwan

Dass vs. State of Punjab, 2010 (2) Criminal Court Cases 541 (P&H),

wherein it has been held by the High Court:

"13. It was next submitted by the Counsel for the appellants

that the report Ex. PU was signed by the Assistant Chemical Examiner, blithe was not examined as a witness in the Court. He further submitted that such a report was not per se admissible in the evidence. The submission of the Counsel for the appellants,

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in this regard, does not appear to be correct. According to

Section 293 Cr.P.C. (amended upto date), any report signed by the Chemical Examiner or Assistant Chemical Examiner to

Government, is per se admissible into evidence. Since the report Ex. PU is per se admissible into evidence, there was no necessity of examination of Assistant Chemical Examiner, as a

witness by the prosecution. In case, the accused had any grouse against the report Ex. PU, then they could move an application for summoning the Assistant Chemical Examiner for his cross-examination. In this view of the matter, the submission

of the Counsel for the appellant, in this regard, being without

merit, must fail and the same stands rejected."

10. In the aforesaid case, it has been held that as per

Section 293 Cr.P.C, any report signed by Chemical Examiner or

Assistant Chemical Examiner to Government is per se admissible and

as such, there is no necessity of examination of Chemical Examiner or

Assistant Chemical Examiner to Government as a witness by

prosecution, however, if accused has any grouse against the report,

he can move an application for summoning the author of the report for

his cross-examination, meaning thereby, accused can file an

application for summoning author of the report immediately after

tendering of report in evidence and he cannot be compelled to wait till

the time he or she enters upon his/her defence. Reliance is also placed

upon the judgment rendered by Hon'ble Gauhati High Court in Md.

Abdul Matlib v. State of Assam, 1990 Crl. L.J. 2393, perusal whereof

clearly reveals that if Court finds it necessary to examine the expert, it,

of its own opinion or on its own motion can always summon expert for

.

examination, but if it doesn't, then the accused by way of an application

under Section 293 of Cr.P.C, can always make a prayer before trial

Court to cross-examine such witness qua report submitted by him.

Relevant paragraphs of the judgment supra are extracted hereinbelow:

"13. On careful consideration of the submission, I think the provisions of Section 293 are not controlled or regulated by the provisions under Section 294 of the Code. It may be noted

that Section 293 was Section 510 in the old Code of 1898

and Section 294 has been inserted in the new Code which came into force on 1-1-74. The provision of Section 293 of the Code provides for reading in evidence certain documents which

purport to be 'report' under the hand of a Government scientific expert as enumerated in Sub-section (4) which include Chemical Examiner or Assistant Examiner to Government. The

provisions of this section are intended to save time and avoid

needless examination of experts mentioned therein, unless, of course, the Court found it necessary to examine the expert or

when the accused requested for examination of the expert. In my opinion, if the Court does not find it necessary to examine the Chemical Examiner or any other expert mentioned in subsection (4) of Section 293 and the accused also does not make any prayer to summon and examine the expert the report can be used in evidence without examination of the expert, the Chemical Examiner in the instant case.

14. The provisions of Section 294 incorporated in the Code,

were already in use in civil proceedings, i.e. where a document filed by a party was admitted by the opposite party or where the genuineness of a document was not denied by the opposite party, the document could without further proof be read and

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used in evidence. The practiice in vogue in civil proceedings

was introduced in the Code to save time and for convenience. In my opinion, the provisions of Section 294 do not control or

regulate the provision of Section 293 of the Code. In the instant case, therefore, the Chemical Examiner's report which had been produced by the prosecution could be read in evidence without

any formal proof by calling the Chemical Examiner as witness, more so when the Court did not think it necessary to examine the Chemical Examiner and the petitioner accused too did not make any prayer to summon the Chemical Examiner to cross-

examine him. I, therefore, think that no irregularity much less

any illegality was committed by the Courts below in taking into consideration the Chemical Examiner's report in evidence."

11. Reliance is also placed upon judgment passed by

Hon'ble High Court of Bombay in The State Of Maharashtra vs

Jagdish B. Shah, 1992 CriLJ 2394, wherein, it has been held that it is

not permissible to tender report by Investigating Officer and chemical

analyst must be produced as a witness to enable accused to ascertain

correctness of the report. Relevant para of the judgment supra, reads

as under:

"7. I have already indicated that the entire prosecution case rests entirely and exclusively on the Chemical Analyser's Report be- cause unless it is established that the powder which is alleged to have been seized from the accused comes within the definition of "a dangerous drug", it would not be possible to sustain the convic- tion. The accused in such circumstances is entitled not only to question but to challenge the evidence that is rendered against him

and for so doing he will require the authority concerned, namely, the Chemical Analyser to be produced as a witness so that he can assail the correctness of the Chemical Analyser's Report. An at- tempt has been made in this case to produce that report through the Investigating Officer and I have already held that such a proce- dure is impermissible. The additional ground of attack canvassed

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by Mr. Ganatra was that the accused would have most certainly

been in a position to question the person who has issued that doc- ument about the following :

(a) The correctness of the report with regard to all important

question as to whether the sample that was forwarded for analysis was, in fact, the one which was seized from the ac- cused. (There is some dispute about the description of the sample that ultimately came to be analysed).

(b) The considerable timelag of five months that has oc- curred between the date when the sample was forwarded for analysis, namely, on 20-1-1981 and the date of the re- port which is 11-6-1981. (This may assume some impor- tance because the item in question is a chemical and it was

pointed out that the storage conditions and passage of time

could result in certain changes).

(c) The manner is which the analysis was carried out and for that matter the details of the persons who, in fact, carried out the analysis, the contemporaneous record maintained

by him and the all important question as to whether at all such an analysis was, in fact, carried out.

(d) The qualifications of the authority who had carried out

the analysis and the grounds on which he has arrived at his findings.

12. If all the aforesaid judgments, as referred in above,

are read in conjunction, they clearly lay down that opportunity to cross-

examine chemical analyst is required to be given to the accused.

Though, Section 293 of Cr.P.C, casts a duty upon trial Court to

examine author of the chemical report qua report submitted by him, but

if it finds no necessity to do the same and permits prosecution to

tender report submitted by chemical analyst in evidence, then it is

bound to provide an opportunity to accused to cross-examine the

author of the report and definitely, such opportunity can only be

provided when such witness is examined or his report is tendered in

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evidence. Findings recorded by learned trial Court that opportunity to

cross-examine chemical analyst can only be provided to accused, once

he enters upon his defence, is totally contrary to the provisions

contained under law and as such, cannot be allowed to sustain.

13. Though, from the record, this Court finds that

chemical analyst, in the case at hand, has been cited as a prosecution

witness at Sl. No. 28-A, but since, report submitted by him is per se

admissible in evidence, accused has an apprehension that the

prosecution with a view to defeat his claim may not examine him and if

it is so permitted, he would be deprived of an opportunity to cross-

examine such expert qua report submitted by him. However, this Court

is of the view that even if, prosecution gives up or chooses not to

examine the chemical analyst, as prosecution witness, even then,

report submitted by him is to be led in evidence and as such,

opportunity of cross-examination is required to be provided to the

accused and that can only be provided before conclusion of

prosecution evidence. If the observation/finding returned by the Court

below is accepted that the opportunity to cross-examine chemical

analyst can only be provided to accused once he enters his defence,

then in that eventuality, accused would be compelled to summon

chemical analyst as his witness and if it is so permitted, great prejudice

would be caused to the accused. If chemical expert is led as a

defence witness, it would be prosecution who would be afforded an

opportunity to cross-examine and not accused, who is otherwise as

per Section 293 Cr.PC liable to be provided an opportunity to cross-

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examine chemical analyst qua the report submitted by him.

14. In this regard, reliance is placed upon judgment

rendered by Hon'ble Apex Court in Keshav Dutt v. State of Haryana,

(2010) 9 SCC 286. In the aforesaid judgment, Apex Court while

shifting onus on the appellant to disprove the expert opinion without it

being formally proved, held that expert opinion cannot be relied upon

unless expert is examined. Relevant paras of the judgment (supra)

read as under:

"9. The other question raised was whether without examin- ing the handwriting expert his report couldhave been admit- ted into evidence and relied upon although the same formed

the main basis of conviction. In this regard, the learned counsel placed reliance on the decision of this Court in State of Maharashtra Vs. Damu [2000 (6) SCC 269], wherein while considering the case of abducting and triple

infanticide, this Court had occasion to consider whether re- liance could be placed on the opinion of the Assistant State Examiner of Documents without examining him as a witness

in Court. This Court held that from the opinion itself it could not be gathered whether his office would fall within the purview of Section 293 Cr.P.C. Accordingly, the Court ob-

served that without examining him as an expert witness, no reliance could be placed on his opinion. Learned counsel urged that the conviction of the Appellant on the basis of the above could not be sustained.

15. In the instant case, the report of the fingerprint expert who had not been examined indicates that a specimen writ- ing had been given by the Appellant and on a comparison of the same with the writings in Ex.PR, the fingerprint expert had come to the conclusion that they had been written by the same person. The Trial Court skirted the issue by hold- ing that the defence counsel could have examined in their defence to rebut the findings of the Assistant Director, Forensic Science Laboratory, Haryana. The High Court also

skirted the issue by observing that the science of handwrit- ing being imperfect and inaccurate, it is very difficult, if not impossible to give the opinion that the writings were in the hand of one and the same persons. The High Court went on to observe that the Appellant did not have the courage to examine any counter expert in rebuttal of the report. The

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High Court recorded that the report having gone unrebutted

could be relied upon without any demur.

16. We are afraid that we cannot concur with the views either of the Trial Court or of the High Court in the above re-

gard. When the Trial Court chose to rely on the report of the handwriting expert (Ex.PR), it ought to have examined the handwriting expert in order to give an opportunity to the Ap- pellant and the other accused to cross- examine the said expert. There is nothing on record to show that the Appellant

and the other respondents had admitted the report of the handwriting expert.

17. In our view, the Trial Court ought to have allowed the Appellant an opportunity to cross-examine the expert and

both the Trial Court and the High Court erred in denying him

such opportunity and shifting the onus on the accused to disprove Ex.PR which had not been formally proved by the prosecution. The decision cited on behalf of the Appel- lant regarding reliance on the opinion of an expert who had not been examined as a witness, however, includes an As-

sistant Director of the State Forensic Science Laboratory in clause (e) of Sub-section (4) of Section 293 Cr.P.C."

15. Reliance is also placed on a judgment rendered by

Hon'ble Apex Court in Manu Sharma v. State (NCT of Delhi), (2010) 6

SCC 1, wherein Hon'ble Apex Court has held as under:

"179. In the present case, the moment Rup Singh uses the word "appear" his opinion unsupported by reasons becomes inconclu- sive and stands discredited for the purpose of placing reliance on. The opinion of Rup Singh was at query No.7 as to "please examine and opine whether ejector, trigger, chamber, magazine or other tool marks are present on the live bullet and the bullet empties con- tained in parcel Nos. 6 & 5 respectively." Though Shri Rup Singh has given opinion qua query No.5 that the two .22" cartridge cases appears to have been fired from two different .22" caliber standard firearms but his opinion is completely silent on the marks i.e. ejec-

tor, trigger, chamber, magazine or other tool marks on the bullet empties (Ex. PW 89/DB). Clearly an option was available to the ac- cused under Section 293 Cr.P.C. to call for the witness and ascer- tain from his for sure that the two empties were in fact fire from two

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different weapons, however, the accused did not choose to do so in

terms of Section 293 Cr.P.C. In any case, the opinion of Rup Singh as of today is of little use to the accused for the reasons stated

above and since it is both inconclusive and unsupported by any reasoning whatsoever and, therefore, cannot appeal to the judicial mind of this Court."

16. In the aforesaid judgment, Hon'ble Apex Court has

held that report of chemical analyst is per se admissible and if accused

has grouse with regard to veracity of the same, option lies with him

under Section 293 Cr.P.C to call for the witness and ascertain the

correctness of the report submitted by him. In case, such opportunity

is not availed by accused, report placed on record shall be read

against him.

17. Having carefully gone through the aforesaid law laid

down by Hon'ble Apex Court as well as other Constitutional Courts and

provisions contained under Section 293 Cr.P.C., this Court is of the

definite view that report submitted by chemical analyst is though per se

admissible in evidence and as such same can be taken on record

without examination of author of the report, but opportunity to cross-

examine author of the report is required to be provided to accused,

especially when he or she asks for the same. If accused fails to file an

appropriate application, praying therein for cross-examination of author

of the report, report submitted by author shall be led in evidence

against him. Similarly, this Court is of definite view that such

opportunity to cross-examine author of the report is to be provided

when such report is taken in evidence and not when accused enters

.

upon his defence after conclusion of evidence of the prosecution.

18. True, it is that in the case at hand chemical analyst,

who has tendered his report, is yet to be examined by prosecution, but

since, Court below while deciding the application filed under Section

293 Cr.P.C, has already held that opportunity of cross-examination can

only be afforded to accused once he enters upon his defence, prayer

made in the instant petition deserves to be considered and impugned

order cannot be allowed to sustain as far as aforesaid finding is

concerned.

19. Apart from above, this Court is of the view that if the

entire scheme of Code of Criminal Procedure is seen, very object and

purpose of provisions contained in aforesaid Code, is to provide

adequate opportunity at every step to the accused to prove his

innocence, so that no innocent person is punished for no fault of him,

In the case at hand, petitioner immediately after registration of case

against him, has been crying from the top of his voice that he has been

wronged by police authorities and he has been falsely implicated. As

per accused, no prohibited drug, as defined under NDPS Act, ever

came to be recovered from his possession, which fact can be proved

by him by assailing the report of chemical analyst qua the samples

drawn by Investigating Agency at the time of alleged recovery. With a

view to prove aforesaid fact, accused at the first instance filed an

application under Section 52A of NDPS Act, which came to be

dismissed on the ground of delay and thereafter, accused filed an

application under Section 293 Cr.P.C, praying therein to provide him an

.

opportunity to cross-examine the expert, but such plea of him, came to

be rejected on the ground that such opportunity can only be asked for

by him once he enters upon his defence. In case, accused thinks that

he can prove his innocence by cross-examining author of the report, at

the first instance, it is not understood, what prejudice, if any, would be

caused to prosecution, in case chemical expert is examined by

prosecution, at the first instance, whose report is otherwise per se

admissible in evidence. Though, chemical analyst proposed to be

cross-examined by accused stands mentioned in the list of prosecution

witnesses, but in case, prosecution chooses not to examine him, at a

later stage, it would be duty of the Court below to provide opportunity

to accused to cross-examine him qua the veracity and genuineness of

the report submitted by him.

20. Consequently, in view of the detailed discussion made

hereinabove, present petition is allowed and impugned order dated

25.09.2020 (Annexure P-5), is quashed and set aside and learned Court

below is directed to afford an opportunity to the petitioner/ accused to

cross-examine the chemical expert, as and when he is examined by

prosecution or report submitted by him is tendered in evidence.

(Sandeep Sharma) Judge

24th August, 2021 (reena)