(1) The petitioner has been convicted of an offence under S. 59(b) of the Mysore Prohibition a and sentenced to three months rigorous imprisonment and a fine of Rs. 500 by the trial Court. The prosecution case is that on 14-7-1962 at about 7 P.M., the petitioner was found in possession of a bottle of country liquor. On appeal the learned Sessions Judge of Dhar war confirmed the conviction of the petitioner but reduced the substantive sentence of imprisonment to the period already undergone and restrained the fine of Rs. 500. The petitioner has come up in revision against the said conviction and sentence passed by the learned Sessions Judge of Dharwar.
(2) The learned counsel for the petitioner has urged 4 points before me. They are: (1) the report of the Chemical Engineer, Exhibit P-5, is inadmissible does not contain the data or particulars necessary in helping the Court to accept his opinion. (3) There was undue delay in the examination of the bottle alleged to contain liquor and as such it is not safe to act on the report of the Chemical Examiner. (4) The sentence of fine of Rs. 500 is too severe.
(3) Taking the first point, the contention of the petitioner's counsel is that Exhibit P-5, the report of the Chemical Examiner, is inadmissible in evidence as it has not been duly proved. The argument is that under the Mysore Prohibition Act, a report of the Chemical Examiner is admissible in evidence, without the Chemical Examiner being examined, only as per S.86 of the Mysore Prohibition Act. Section 86 says:
'Any document purporting to be-
(a) a certificate under the hand of a Registered Medical Practitioner or the Chemical Examiner or Assistant Chemical Examiner to Government under S. 109 or of an officer appointed under sub-section (1) of that section, or,
(b) a report under the hand of any Registered Medical Practitioner, in any hospital or dispensary maintained by the State Government or a local authority, or any other Registered Medical Practitioner authorised by the State Government in this behalf, in respect of any person examined by him or upon any matter or thing duly submitted to him for examination or analysis and report, may be used as evidence of facts stated in such certificate, or as the case may be, report, in any proceedings under this Act; but the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused person, summon and examine and such person as to the subject matter of his certificate or as the case may be, report.'
The contention is that only in cases falling under S. 109 of the Prohibition Act, i.e., where a person is required to submit to medical examination on the ground that he has consumed an intoxicant, a Chemical Examiner's report, without proof, would be admissible in evidence and not in other cases. The petitioner's counsel also contends that as per S. 1(2) of the Code of Criminal Procedure, in the absence of any specific provision to the contrary, nothing contained in the Code of Criminal Procedure shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force and therefore, the provisions of the Code of Criminal Procedure do not apply in a trail under the Mysore Prohibition Act. He contends that since specific provisions, such as Section 86 with regard to rules of evidence and Section 87 with regard to procedure have to be followed by a magistrate, the provisions of the Code of Criminal Procedure do not apply. Hence section 510 of the Code of Criminal Procedure do not apply. Hence section 510 of the Code of Criminal Procedure, which makes a report of the Chemical Examiner admissible in evidence without examining him, is specifically excluded and does not apply to trial under the Mysore Prohibition Act.
(4) There is no force in the contention of the counsel for the petitioner. Section 510 Criminal Procedure Code is general. Because of the specific provision of Ss. 86 and 109 of the Mysore Prohibition Act, it cannot be justifiably assumed that in enacting the above two sections, the Legislature intended that a certificate of competent chemical Examiner produced in cases concerning other charges shall become inadmissible. It is open to the prosecution to rely on the report of the Chemical Examiner in cases not covered by the provisions of S. 86 or S. 109 of the Act, as provided by S. 510 Cr.P.C. It has to be remembered that the charge here is not that of consuming liquor in which case Sections 86 and 109 of the Act would be attracted. Here, the charge is that the petitioner was found in possession of one bottle of country liquor and as such, in the absence of any specific provision with regard to the proof of charges other than that of personal consumption of liquor, it is open to the prosecution to rely on the general provision of section 510 Cr.P.C. Section 5(2) of the Code of Criminal Procedure specifically states that all offences under any other law shall be investigated, inquired into, tries and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. If the Chemical Examiner is to be summoned in every petty case of prohibition, arising all over the State, the very purpose of the Prohibition Act will be defeated and this would make the Prohibition Act will be defeated and this would make the Prohibition Act almost unworkable.
(5) The very contention new advanced by the petitioner was raised and negatived by the Supreme Court in Ukha Kolhe v State of Maharashtra, AIR 1963 SC 1531.That was a case arising under the Bombay Prohibition Act. Their Lordships had to consider Ss. 129-A and 129-B of the Bombay Prohibition Act, which are exactly similar to Ss. 86 and 109 respectively of the Present Mysore Prohibition Act. The Mysore Act seems to have copied these sections from the Bombay Prohibition Act. It was contended before the Supreme Court that in view of the specific provision of Sections 129-A and 129-B of the Bombay Prohibition Act, Section 510 of the Code of Criminal Procedure is not applicable and as such the report of the Chemical Examiner is inadmissible as the same has not been proved. At paragraph 19, page 1541, their Lordships negatived this contention and observed as follows:
'On that view of Sections 129-A and 129-B, there is no warrant for assuming that it was intended thereby to exclude in trials for offence under S. 66(1)(b) of the Act the operation of S. 510 of the Code of Criminal Procedure. The port under the hand of a Chemical Examiner and certain other documents upon any matter or thing duly submitted to him for examination or analysis and report, admissible in an enquiry, trial or other proceeding under the Code. The terms of S. 510 of the Code of Criminal Procedure are general; but on that account it cannot be justifiably assumed that by enacting Ss. 129-A and 120-B, the Legislature intended that the certificate of a competent officer in respect of admissible. It is open to the prosecution to rely in corroboration of a charge of consumption of illicit liquor upon a certificate under clause (1) of Section 129-B if it is obtained in the manner prescribed by S. 129-A and also to rely upon the report of a registered medical practitioner in respect of any person examined by him or upon any matter or thing duly submitted to him for examination or analysis and report. 'It is also open to the prosecution to rely upon the report of the Chemical Examiner in cases not covered by S. 129-A as provided under Section 510 of the Code of Criminal Procedure.
(Underlining (here into ' ')is by me.)
I therefore hold that there is no force in the contention of the petitioner's counsel that Exhibit P--5 is inadmissible and has not been properly proved. It may also be mentioned that this contention has never been urged either in the trial Court or in the appellate Court, but has been taken up for the first time only in this Court.
(6) It is next urged by the petitioner's counsel that Exhibit P-5, the Chemical Examiner's report, that the bottle contained alcoholic content 21,912 per cent. V/v at 60F. The petitioner has relied on Prabhu Babaji Navle v. State of Bombay, : 1956CriLJ147 . In that decision their Lordships have held that it is the Chemical Examiners duty to indicate the number and extent for examination. In my opinion, this decision is not of any assistant to the petitioner. That was a case of blood stains found on the clothes of the accused person and not a case concerning the report sent by the Chemical Examiner of the analysis of percentage of alcohol contained in the article sent to him for examination. Further it may be noted that their Lordships did not say that because of the defects pointed out by them, the Chemical Examiner's report not giving a detailed description is inadmissible. In Suleman Usman Memon. State of Gujarat, : AIR1961Guj120 it has been held that the report of the Chemical Examiner must show the tests or experiment performed by him, the factual data revealed by such tests or experiments and the results leading to the formation of the opinion from such factual data; otherwise, the report would have no value as a piece of evidence. This judgment of a single Judge has not been approved by a Bench decision in State v. Ramsingh Desasingh, : AIR1963Bom68 . Chainani C.J., speaking for the Bench has stated.
'The Court cannot refuse to consider the evidence furnished by the certificate of the Chemical Examiner or Assistant Chemical Examiner issued under S. 129A of the Bombay Prohibition Act, 1949, merely because it does not mention the data on the basis of which the Chemical Examiner arrived at the percentage of alcohol mentioned in his certificate, or because he has not given the reasons for his conclusion. If the Court feels that it should have more information in order to satisfy itself about the correctness or otherwise of the certificate, the Court should summon the Chemical Analyser or ask the prosecution to summon and examine him. But without examining the Chemical Analyser, the Court would not be justified in holding that the charge against the accused has not been proved, merely because the certificate issued by the Chemical Analyser only mentions the percentage of alcohol found in the blood of the accused and does not give any other particular.'
Following with respect, the decision reported in 64 Bom LR 451: (AIR Bom 68) I hold that the absence of data in exhibit P-5 does not make it inadmissible in evidence. It was open to the petitioner, if he wanted to have some more details or particulars about the report, to request the Court to summon the Chemical Examiner for cross-examination. The petitioner has not done so and he cannot now contend that the report has no evidentiary value.
(7) With regard to the question of delay in the examination of the bottle, this is not a question of law which could be agitated before this Court in a revision petition. The offence was on 14-7-1962 and the bottle was immediately seized and sealed in the presence of Panchas. The same was sent to the Chemical Examiner on 27-7-1962. The fact that the report of the Chemical Examiner was received long after this, does not in any way affect the value of the report of the Chemical Examiner.
(8)The petitioner's counsel has lastly contended that the find of Rs. 500 is unduly severe and the petitioner was once a Police Constable who was dismissed from service and he is without any means and it will be difficult for him to pay the fine. It may be mentioned that on conviction under Section 59(b) of the Mysore Prohibition Act, the sentence for a fist offender is imprisonment for a term which may extend to six months or fine which may extend to one thousand rupees; the proviso also says that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than Rs. 500. As stated already, the learned Sessions Judge has modified the sentence of imprisonment and reduced it to the period already undergone while retaining the fine of Rs. 500. If am of opinion that the sentence awarded to the petitioner can in no sense be said to be harsh. As observed by the trial Court, the petitioner was once a Police Constable and it does not redound to his credit to be found guilty of an offence under the Prohibition Act. I see no reason to interfere either with the conviction or the sentence passed on the petitioner.
(9) In the result, for the reasons stated above this criminal revision petition fails and the same is dismissed.
(10) Revision dismissed.