1. The applicant in this case was accused of possessing cocaine and so having committed an offence under Section 43(I)(a) of the Bombay Abkari Act, 1878, During the trial the report of a person called the excise analyst, Government Central Distillery, Nasik Road, that one bottle which had been sent to him contained cocaine, and that some other things contained no cocaine, was tendered in evidence and exhibited by the Magistrate. No objection appears to have been raised to this being done, and the Magistrate appears to have considered that the report fell under e, 510, Criminal Procedure Code. It is quite clear, however, that the report does not come under that section; and the Magistrate was presumably misled by the fact that this excise analyst was referred to in the evidence as a chemical analyser. The accused was subsequently convicted of the offence. On appeal to the Sessions Judge the point arose, that the report of the excise analyst was inadmissible in evidence. The Sessions Judge records in his judgment that this point was not taken in the petition of appeal, but cropped up in the arguments. He further says that, if that certificate be discarded, there was no other evidence to prove that the powder in the bottle in question contained cocaine, and accordingly he proposed to have the excise analyst examined under Section 428, Criminal Procedure Code. Upon this the pleader for the appellant stated that he did not Want to challenge the genuineness or the correctness of the certificate, and that he was prepared to admit that the powder in the bottle sent to the excise analyst was cocaine. The pleader further stated that he thought that it would be a sheer waste of time and money to call the excise analyst, and wanted the appeal to be decided upon the merits. Upon this the Sessions Judge found that the powder in the bottle contained cocaine.
2. In this application for revision it is contended that the learned Judge had no right to act on the admission 01 a pleader, and that any such admission was not binding upon the applicant. Further it is contended that the Sessions Judge was wrong in supplying a gap in the prosecution evidence by having the excise analyst examined under Section 428, Criminal Procedure Code, Mr. Thakor for the applicant has argued this question very clearly and fully. The Government Pleader for the Crown submits that, although the certificate was inadmissible in evidence, the accused did not in the original trial really deny that the bottle in question contained cocaine, and that the objection is a purely technical one, In regard to which further evidence can properly be taken under Section 428, Criminal Procedure Code.
3. It is certainly true that no stress was laid at the trial upon the denial that is now made that the bottle in question contained cocaine. It is true that the accused did not admit that it contained cocaine. But his main contentions, as shown by the Magistrate's judgment, were that the contents of the bottle had been substituted, so that its containing cocaine did not show that the accused had possessed cocaine, and also that the bottle had been tampered with, in that it was originally intact, whereas now it has a hole at the bottom of it. Then, again, as noted by the Sessions Judge, the point as to the admissibility of the certificate was not taken in the petition of appeal, and only cropped up in argument. Even assuming that Mr. Thakor is right in his contention that the Judge should not have acted upon the admission of the pleader of the appellant, the case is, I think, one where clearly such action on his part amounts to an irregularity, which has not caused a failure of justice, and which, therefore, can be properly held to fall under Section 537, Criminal Procedure Code.
4. Apart from this I am of opinion that this is a case where the provisions of Section 428, Criminal Procedure Code, can properly be availed of in order to have legal evidence as to the contents of the bottle. There is no question of surprise. The certificate was put in and no objection was taken, nor any suggestion made, that the excise analyst should be called. It is not a case of the prosecution having had ample opportunities to produce certain evidence at the original trial, which was not called and its being sought to rectify the omission in appeal; here evidence was tendered, but it was evidence that should not have been admitted by the Court It is very much on the same footing as a confession, which is inadmissible in evidence, because the Magistrate recording it has not given a proper certificate, or for some similar reason; and in such cases the law expressly allows the omission to be supplied by the examination of the Magistrate, who recorded the confession. This is provided for by Section 533, Criminal Procedure Code, and Sub-section (2) of that section says that a Court of appeal or revision can also have such further evidence taken. The mere fact that the Code makes provision for this particular case does not, in my opinion, involve the conclusion that in no other similar case can a Sessions Judge act under the very wide provisions of Section 428, Criminal Procedure Code.
5. I am also not satisfied that in fact the Sessions Judge could not legally act upon the admission of the applicant's pleader in the appeal. It is not a case of something being done at the trial or of acting upon an admission at the trial, but upon an admission in the appeal; and the two cases are not quite on the same footing. Of course in the original trial the requirements in the Code of Criminal Procedure have to be properly followed, and in a warrant case (as this was) the accused could not be convicted merely upon the admission of his pleader. But when in the appeal the question arose whether such further evidence should be taken, I cannot see any rule, authority or principle which ties us down to holding that the Judge could not properly act upon the pleader's admission, A pleader's authority to admit a certain fact so as to dispense with the necessity of further proof is clearly laid down in regard to a civil ease in Mahadev v. Sun derabai (1901) 3 Bom. L.R. 467 and I think the same principle applies in regard to this particular case in the appellate Court. The fact that it was a criminal case does not really make any difference, because, had the pleader not made this admission, what would have happened would have been that the Court would have taken the evidence of the excise analyst, and there is no reason to suppose that that evidence would not have substantiated the statements contained in this report, and there would be no reason, in my opinion, for this Court to interfere in revision with such an order under Section 428, Criminal Procedure Code.
6. Furthermore, I am not convinced that's. 58 of the Indian Evidence Act does not apply to justify the action of the Sessions Judge. No doubt, in England an admission by an accused, which falls short of his pleading guilty, is not taken into account and is not binding against him. But Section 58 makes no exception in regard to criminal proceedings; and while I do not say that it can be availed of to cure a clear contravention of any directions of the Criminal Procedure Code as to the course of a trial, yet I think it can apply in a case like this, which relates only to the proceedings of an. appellate Court. In the particular circumstances of the present case, I see no sufficient reason to interfere with the conviction or the sentence passed by the Magistrate upon the applicant.
7. I agree. The admission made by the pleader in this case was not an admission of any law point, but it was an admission of a fact, and was made with the object of saving time and expense to his client. The pleader was not appointed by the Court but was engaged by the accused. In Queen-Empress v. Sangayaa (1900) 2 Bom. L.R. 751 this Court held that admissions made by a pleader appointed to help the accused in his defence are not binding on him to his prejudice, The Court drew a distinction between a pleader appointed by the Court to defend a prisoner, accused of murder, and a pleader the accused would himself authorize to act for him. In the case before us the accused himself had engaged the pleader. It follows that the accused must be held to have authorized the pleader to conduct the appeal on his behalf according to his best discretion and judgment. The admission made by the pleader does not appear to have been unreasonable, or to have resulted in an injustice to the accused or in a prejudice which could have been reasonably avoided. The point now relied upon by the accused that the bottle did not contain cocaine, was not put forward during the trial of the case. The pleader in the exercise of his discretion could reasonably come to the conclusion that the admission of the fact that it did contain cocaine would not prejudice his argument in appeal.
8. At the time the pleader made the admission he was made aware of the Judge's intention to take further evidence or to remand the case for further evidence on the point. The pleader could reasonably anticipate that the result of such an action would be to establish the fact he admitted, and that by admitting the fact he would save time and expense to his client. Under the circumstances, at the most it may be urged that in waiving the formal proof of an essential fact in the prosecution ease and in relying on the admission only of that fact made by the pleader of the accused, the Court has committed an irregularity. This is no illegality. I agree with my learned brother that this application should be dismissed.