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Public Prosecutor Vs. Pamarti Venkata Chalamaiah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1957CriLJ830
AppellantPublic Prosecutor
RespondentPamarti Venkata Chalamaiah
Excerpt:
- - it is also interesting that these two persons figured as defence witnesses and deposed that by the time they went there all the material was heaped up and there was no search in their presence and they were merely asked to sign, though the panchayatnama which they attested contained recitals contrary to what they deposed......section 4(1)(a) acquitted both of them under section 4(1)(g) on the ground that the report of the chemical examiner which was relied on for the prosecution to prove that the material recovered from the accused was fermented, was not evidence for the reason that he was not examined in court to prove the report.2. the public prosecutor has preferred these two appeals against the acquittal of each of the accused impugning the view of the sub-divisional magistrate as regards the admissibility of the chemical examiner's report. in support of these appeals, it is urged by mr. bhimaraju for the public prosecutor that the sub-divisional magistrate erred in thinking that the report of the chemical examiner was inadmissible for the reasons that the report was not that of a chemical examiner to.....
Judgment:

Chandra Reddi, J.

1. The point involved in both these appeals is the same. It relates to the interpretation of Section 510, Criminal P. C. Both the accused who are the respondents in these two appeals were convicted under Section 4(1)(a) and Section 4(1)(g) of the Madras Prohibition Act, (10 of 1937) and sentenced to two months and four months rigorous imprisonment respectively by the trial Magistrate. The case against each of the accused was that on the 25th of October, 1954, they were found in possession of liquor and also some substance which on chemical analysis was found to be fermented wash and were therefore charged under Section 4(1)(a) and Section 4(1)(g) of the Madras Prohibition Act. The trial Court found both the accused guilty as charged and sentenced them as mentioned above. On appeal, the Sub-Divisional Magistrate of Bandar while confirming the conviction of each of the accused under Section 4(1)(a) acquitted both of them under Section 4(1)(g) on the ground that the report of the Chemical Examiner which was relied on for the prosecution to prove that the material recovered from the accused was fermented, was not evidence for the reason that he was not examined in Court to prove the report.

2. The Public Prosecutor has preferred these two appeals against the acquittal of each of the accused impugning the view of the Sub-Divisional Magistrate as regards the admissibility of the Chemical Examiner's report. In support of these appeals, it is urged by Mr. Bhimaraju for the Public Prosecutor that the Sub-Divisional Magistrate erred in thinking that the report of the Chemical Examiner was inadmissible for the reasons that the report was not that of a Chemical Examiner to the Government of Andhra and that even other-wise it could not fall within the operation of Section 510, Criminal Procedure Code.

3. On the other hand, Mr, Satyanarayana, besides trying to sustain the judgment on the reasons mentioned by the appellate Court, propound. ed also another proposition that such a report is hit at by Section 162, Criminal Procedure Code and consequently inadmissible in evidence.

4. The first question, therefore, to be considered is whether the report submitted was by the Chemical Examiner to the Government of Andhra to come within the purview of Section 510 of the Criminal Procedure Code. This depends on whether the signatory to this document was appointed by the Government of Andhra to fulfil the functions of a Chemical Examiner. That this was done appears from the G. O. published in the Andhra Gazette of January 26th, 1955, Part I, page 98. The relevant notification is as follows:

Competent Authority to exercise functions under Section 56, Andhra State Act, 1953.

(G. O. Ms. No 60, Revenue, 10th January, 1955),

In exercise of the powers conferred by Section 56 of the Andhra State Act, 1953, (Central Act XXX of 1953), the Governor of Andhra hereby directs that the authority, officer or person specilled in column (2) of the schedule below, shall be competent to exercise the functions exercisable under the law mentioned in, the corresponding entry in column (1) of the said schedule in the Andhra State also:

SCHEDULE,Functions exercisabie and the Act or rule, etc., Designation : of the authority, officer orunder which they are so exercisable, person.(1) (2)To be Assistant Chemical Examiner to the Govern- First Assistant, Laboratory of the Board of Revenuement of Andhra for Excise and Prohibition for (Excise), Madras State.purposes of Section 510 of Criminal Procedure Code.

It is thus manifest that by this order the Government of Andhra had appointed the First Assistant, Laboratory of the Board of Revenue, Madras State, as the Assistant Chemical Examiner to the Government of Andhra for the purpose of Section 510, Criminal Procedure Code. Indisputably the Assistant Chemical Examiner is included in Section 510, Criminal Procedure Code, The lower Court thought that Exhibit P-2 the report in question could not be treated as one by the Assistant Chemical Examiner to the Government of Andhra for two reasons : (1) that he did not sign as Assistant Chemical Examiner to Government of Andhra; and (2) that it was also signed by the Chemical Analyst. The contention put forward by Satyanarayana before me is on the same lines. I must observe that there is no force in this reasoning. The mere fact that the Analyst, Board's Laboratory, had appended his signature to the document does not detract from the value or the legality of it. As regards the first ground, it is true that the Assistant Chemical Examiner did not describe himself as the Officer to Government of Andhra for Excise and Prohibition. But, it cannot be overlooked that this was sent to Government of Andhra and secondly he was an Assistant Chemical Examiner only to the Government of Andhra because so far as the Government of Madras is concerned, he was only the First Assistant of the Laboratory of the Board of Revenue. It is therefore futile to contend that Exhibit P-2 should be ignored as the report of an Assistant Chemical Examiner to the concerned Government. In the circumstances of the case, the only reasonable inference that could be drawn is that it was in his capacity as Assistant Chemical Examiner to the Government of Andhra he submitted, the report. That contention is therefore overruled.

5. Another ground of decision was that since the report was received prior to the initiation of prosecution, it could not be received in evidence and in the absence of any such report there was no material to establish that the substance recovered from the secured was fermented wash to sustain a conviction under Section 4(1)(g) of the Prohibition Act. This view of the trial Court was based on a judgment of a single Judge of Patna High Court in Chauth Mull v. Emperor AIR 1919 Pat 139(2)(A). It is useful to refer to the terms of Section 510, Criminal Procedure Code:

Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, upon any matter or thing duly submitted to him for examination or analysis 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.

Mr. Satyanarayana who has adopted the reasoning of the trial Court argues that the words 'any proceeding under this Code' are synonymous with a judicial proceeding and therefore Section 510 should be limited only to a case where the report was received pending proceedings in a. Court. In my opinion, this is giving too restricted meaning to it and the import of this language is much wider than that attributed to it. It cannot, be overlooked that the next sentence is 'may be used in any inquiry, trial or other proceeding under this Code'. In this context, the definition of 'investigation' in Section 4(1) of the Criminal Procedure Code throws much light:

Investigation includes all the proceedings, under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Clause (m) contains the definition of 'judicial proceedings'. A comparison of these two definitions makes it abundantly clear that the expression 'proceeding under the Code' is not tantamount to a judicial proceeding. Thus, the words 'in the course of any proceeding under this Code' in the earlier part of the section cannot bear the connotation attributed, to it. They include all the proceedings under the Code and are not confined to a proceeding initiating prosecution. Otherwise there is no question of the report being used as evidence in any enquiry or trial in a Court; that could arise only if it precedes a proceeding in a Court. In my opinion, a Chemical Examiner's report received prior to the initation of prosecution is admissible evident in any proceedings in a Court as it comes within the operation of Section 510, Criminal Procedure Code. With great respect to the learned Judge, I am unable to share the view of Jwala Prasad, J., in AIR 1919 Pat 139(2)(A). If the interpretation sought to be placed upon it is accepted, Section 510 will be rendered otiose. It cannot be overlooked that in several cases the receipt of the Chemical Examiner's report is necessary to decide whether prosecution should be launched against an individual or not. The report being an essential factor in determining whether prosecution should be launched or not, it could not be contended that this report of the Chemical Examiner received after the initiation of the prosecution is alone admissible in evidence.

6. It is true that Section 510 says that the report may be used as evidence which means that it is not obligatory upon a Court to use it as evidence in every case. May be that in some cases the Court might feel the necessity to examine the Chemical Examiner. (The amended Code contains a specific provision in this regard to summon and examine any person as to the subject-matter of his report). There is no suggestion in this case that the accused wanted that the Chemical Examiner should be examined in the case.

7. I may here refer to the judgment of the Allahabad High Court in Emperor v. Johri AIR 1931 All 269(B), which is in consonance with the view taken by me. The question that arose there was whether a report given by a person to a police officer which was ultimately found to be false would come within the ambit of the expression 'any criminal proceeding' in Section 211, Indian Penal Code and this was answered in the affirmative. In coming to that conclusion the learned Judge also referred to the definitions under Section 4(1)(1) and Section 4(1)(m) of the Criminal Procedure Code. It follows that the report of the Chemical Examiner marked as Exhibit P-2 was properly admitted in evidence and the lower appellate Court had committed an error in discarding it as having no evidentiary value and acquitting the accused on that ground.

8. Mr. Satyanarayana maintained that the provisions of the Criminal Procedure Code do not apply to a proceeding under the Prohibition Act and therefore Section 510, Criminal Procedure Code, is not attracted. According to him, the Prohibition Act is a self-contained Code and therefore there is no warrant for importing the provisions of Section 510 into the trial of prohibition offences, Here again, I cannot give effect to this argument. Section 53 of the Prohibition Act specifically recites that 'nothing contained in this shall affect the operation of the Criminal Procedure Code, 1898', That apart, there is a specific provision for applying the provisions of the Criminal Procedure Code to searches under the Prohibition Act and that is Section 34 which provides that all searches under the provisions shall be made in accordance with the previsions of the Criminal Procedure Code, 1898. There can be little doubt that even a trial under the Prohibition Act is governed by the provisions of the Criminal Procedure Code. There is therefore no force in this contention also.

9. It was strenuously argued by Mr. Satyanarayana that 8. 162, Criminal Procedure Code was a bar to the reception of this document in evidence, but he could not place any authority in support of this proposition. I do not think Section 162, Criminal Procedure Code, prohibits the Chemical Examiner's report being admitted in evidence. The inhibition contained in Section 162 is only against statements made by any person to a police officer in the course of investigation. It does not 1 impinge upon the reports of Chemical Examiner as they do not amount to statements to police officers in the course of investigation. I do not think Section 162, Criminal Procedure Code, is relevant in considering the admissibility of the Chemical Examiner's report. If the contention of Mr, Satyanarayana is to be accepted, Section 510 of the Criminal Procedure Code becomes nugatory and in spite of its remaining on the statute bock no use could be made by the prosecution. That submission is therefore not entitled to much weight and has to be negatived. For these reasons, I must hold, the lower Court was not justified in discarding the evidence furnished by Exhibit P-2.

10. For these reasons, the appeals would have been allowed. But the lower appellate Court has not considered the defence evidence let in by the two accused in the case. Even the prosecution evidence does not seem to have been discussed satisfactorily by the lower appellate Court. In the circumstances of the case, I do not think I will be justified either in remanding it or in considering the whole evidence afresh here. After all, the Public Prosecutor is only interested in getting questions of law decided.

11. There is also some force in the contention of Mr. Satyanarayana that the provisions of the Criminal Procedure Code with regard to searches have been violated. It is argued by the learned Counsel that two of the panchayatdars who have attested the seizure lists were not persons of the locality but were brought from Masulipatam. It is absolutely essential that the officers conducting investigation bear in mind the previsions of Section 103, Criminal Procedure Code. This section contemplates that before a search is made the officer concerned will call upon two or more respectable inhabitants of the locality in which the place to be searched is situate, to attend and witness the search. It does not mean that the Investigating Officers can have two or three people accompanying them everywhere they go for searches. As far as possible, the provisions of the section should be complied with. There may be cases where it may not be possible to get two respectable persons of the locality to attend and witness the search. But, in this case, the Investigating Officer does not say that he made an effort to bring two respectable persons of the locality. In fact even before they started for the village they brought these two persons. The officer does not say that in the particular village it is not possible to get respectable persons to witness the search. It is also interesting that these two persons figured as defence witnesses and deposed that by the time they went there all the material was heaped up and there was no search in their presence and they were merely asked to sign, though the panchayatnama which they attested contained recitals contrary to what they deposed.

12. In these circumstances, though altogether for different reasons, the order of acquittal is maintained and the appeals dismissed.


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