1. The short question which calls for determination in this acquittal appeal preferred by the State is whether the learned Additional Sessions Judge, Ferczepore, was justified in rejecting the Chemical Examiner's report to be inconclusive and therefore insufficient to form the basis of the respondent's conviction.
2. The facts giving rise to this appeal are that Sadhu Ram respondent, a boy of 17 or 18 years of age, residing in village Lopon, was found in possession of 11 tolas of illicit opium wrapped in a piece of paper which was recovered from the pocket of his pyjama. On 25-11-1959 Sham Lal A. S. L, P. W. 3, in pursuance of secret information received by him, organised a raid party for raiding the liquor vend in village Badni Kalan. The accused Sadhu Ram on seeing the police party tried to slip away but was captured after a little struggle and on a search of his person 11 tolas of illicit opium was recovered as already stated. A sum of Rs. 942/- and a wrist watch were also taken from the possession of the accused. The sample of the opium was sent to the Chemical Examiner and his report Exhibit P. E. is in the following terms:
'The contents are opium by morphine, meconic acid and morphine percentage tests.'
The learned Magistrate found the accused guilty of an offence under Section 9 of the Opium Act and sentenced him to three months' rigorous imprisonment and a fine of Rs. 500/-, in default, a further rigorous imprisonment for three months. The watch and the sum of Rs. 942/- recovered from the accused were ordered to be returned to him.
3. On Appeal the learned Additional Sessions Judge, considered the report of the Chemical Examiner to be extremely vague which was insufficient to lead the Court to the conclusion that the contents of the parcel were opium as defined in Section 3 of the Opium Act.
4. In my opinion, the learned Additional Sessions Judge has completely misdirected himself on the point. Under Section 510, Code of Criminal Procedure, 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 of analysis and report in the course of any proceedings under this Code can be used as evidence in any enquiry trial or other proceedings. According to Sub-section (2) the Court may if it thinks fit and shall on the application of the prosecution or the accused summon and examine any person as to the subject-matter of his report. Now if the accused wanted to challenge the correctness of the conclusions of the Chemical Examiner, that the contents of the sample sent to him for analysis and report was opium, as stated in the report, then he could certainly have requested the Court to summon the Chemical Examiner and examine him as to the subject-matter of his report. On such request being made the Court was bound in law to examine the Chemical Examiner.
5. The reason that this report is extremely vague on the basis of which the learned Additional Sessions Judge felt constrained to reject it does not seem to me to be very sound. The report contains a conclusion of an expert and it has been expressly made evidence; if this conclusion is not challenged or questioned in Court it should ordinarily be accepted, unless the Court itself considers it fit to summon and examine the Chemical Examiner so as to satisfy itself about the soundness of his conclusion. The learned counsel for the accused before us could not advance any convincing and cogent argument in support of the view of the lower Appellate Court. If the prosecution or the accused want to elicit more information from The Chemical Examiner or if they want to question him to clarify any point, they are entitled under the law to request the Court to summon him and to examine him on the point.
6. Here, I may also observe that if the learned Additional Sessions Judge thought that the report was vague and not quite clear or that it was not an ideal report and he wanted to have fuller information he could and should have summoned the Chemical Examiner and examined him rather than acquit the accused on this ground, in omitting to adopt this obvious, procedure, the learned Additional Sessions Judge seems to have failed to promote the cause of justice.
7. Opium Control legislation has, as its primary aim the protection of public welfare by preserving health and eliminating undesirable social and moral effects commonly associated with the indiscriminate use of this drug. The seeming tendency appears to me to give a liberal interpretation to effectuate the object and purpose of such legislation. Since the effectiveness of this legislation is dependent on its rigid enforcement, its purpose should not be defeated by hyper-technicalities, particularly when the infirmity--if any--can effectively he remedied without any injustice, as in the present case, by summoning and examining the Chemical Examiner. That would, as agreed on all hands, have solved the difficulties, if at all there were any, which the learned Sessions Judge felt, it is not denied at the bar that the learned Sessions Judge had full power to adopt this procedure.
8. Having ourselves considered this report, we think it is not tainted with any infirmity like the one suggested by the learned Sessions Judge.
9. The result, therefore, is that this appeal must be allowed and the order of the learned Additional Sessions set aside. In so far as the question of sentence is concerned, in view of the age of the accused, I think the sentence undergone should amply meet the ends of justice. I would, therefore, reversing the sentence of acquittal, convict the accused but reduce his sentence to that already undergone.
10. I agree.