Skip to content


Bhagwan Dass Vs. State of Punjab - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1982CriLJ2138
AppellantBhagwan Dass
RespondentState of Punjab
Cases ReferredSanta Singh v. State
Excerpt:
- - 1. that every official in the office of the chemical examiner (or in the alternative at least some of them), in whose custody at any stage the sample had remained, must necessarily step into the witness-box to depose about its safe transmission, is the rather hyper-technical stand taken on behalf of the petitioners, which has necessitated this reference to the division bench. 5, 1981, for contending that because everyone of the persons in the office of the chemical examiner, and in any case some of them who had kept the samples in the safe custody, had not been examined as witnesses, (or by producing their affidavits) the vital link evidence was missing, thus vitiating the whole prosecution case. 5. now what perhaps calls for pointed notice is the fact that for well-nigh a century.....s.s. sandhawalia, c.j.1. that every official in the office of the chemical examiner (or in the alternative at least some of them), in whose custody at any stage the sample had remained, must necessarily step into the witness-box to depose about its safe transmission, is the rather hyper-technical stand taken on behalf of the petitioners, which has necessitated this reference to the division bench. an inevitable corollary thereof is whether section 293 of the code of criminal procedure renders admissible the averments in the report of the chemical examiner with regard to the condition of such a sample and the manner of its receipt.2. for the adjudication of the aforesaid pristinely legal questions it seems unnecessary to advert to the facts of any one of this set of 16 connected criminal.....
Judgment:

S.S. Sandhawalia, C.J.

1. That every official in the office of the Chemical Examiner (or in the alternative at least some of them), in whose custody at any stage the sample had remained, must necessarily step into the witness-box to depose about its safe transmission, is the rather hyper-technical stand taken on behalf of the petitioners, which has necessitated this reference to the Division Bench. An inevitable corollary thereof is whether Section 293 of the Code of Criminal Procedure renders admissible the averments in the report of the Chemical Examiner with regard to the condition of such a sample and the manner of its receipt.

2. For the adjudication of the aforesaid pristinely legal questions it seems unnecessary to advert to the facts of any one of this set of 16 connected criminal revisions before us. It suffices to mention that when some of them came up before my learned brother I.S. Tiwana, J. sitting singly, reliance was placed on three single Bench judgments of this Court in Amarjit Singh v. State of. Punjab 1981 Chand Cri C 170 (P & H); Criminal Revn. No. 219 of 1979 Tehal Singh v. State of Punjab decided on November 20, 1980 Reported in (1981) 8 Cri LT 58 (Purij & Har.) and Criminal Revn. No. 304 of 1979 Gurcharan Singh v. State of Punjab decided on Feb. 5, 1981, for contending that because everyone of the persons in the Office of the Chemical Examiner, and in any case some of them who had kept the Samples in the safe custody, had not been examined as witnesses, (or by producing their affidavits) the vital link evidence was missing, thus vitiating the whole prosecution case. Apparently, not accepting so doctrinaire a stand and doubting the correctness of the ratio of the aforesaid judgments, the matter was referred for consideration by a larger Bench vide the order of reference dated 28th Sept. 1981 in Criminal Revn, No. 1043 of 1981 Mohinder Kumar v. State of Punjab

3. As before the single Bench; so before us, the learned Counsel relied upon the authorities aforesaid buttressed by similar views expressed in Atma Singh v. State of Punjab 1981 Chand Cri C 181 (P&H;); and Bishno v. State of Punjab 1981 Chand Cri C 243 : 1982 Cri LJ NOC 22 (P&H;); to reiterate their stand that the non-production of witnesses from the office of the Chemical Examiner, who may have handled the sample till it reached the hands of the person analysing the same, vitiates the whole prosecution case in its entirely. The cornerstone of the contention was ultimately sought to be rested on the observations of their Lordships of the Supreme Court in State, of Rajasthan v. Daulat Ram : 1980CriLJ929 :

4. To appreciate the rival contentions, the issue deserves consideration in the context of the statutory provisions against the backdrop of their legislative history. It deserves recalling that the predecessor Section 510 of the old Cri. P.C. 1898 had rendered admissible the reports, of the Chemical Examines in evidence. The successor provision in the new CrI.P.C. 1973 is Section 293 thereof. It seems apt at the very outset to juxtapose the relevant provisions thereof:

Section 510 of the old Code of Criminal Procedure.

(1) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant chemical Examiner to Government or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an officer of the Mint, 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.

(2) The Court may, if it thinks fit, end shall, on the application of the prosecution of the accused, summon and examine any such person as to the subject-matter of his report.

Section 293 of the new Code of Criminal, Procedure.

(1) Any document purporting to be a report under the hand of a Govenrment scientific expert to whom this section applies, 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.

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

(3) Where any such expert is summoned. by a Court and he is unable to attend personally, he may, unless the. Court has expressly directed him to appear personally, depute any responsibly, officer working with him to attend: the Court, if such officer is conversant with., the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies t0 the following Government scientific experts, -namely.-

(a) any Chemical Examiner or Assistant Chemical Examiner 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.

5. Now what perhaps calls for pointed notice is the fact that for well-nigh a century since the enactment of Section 510 of the old Code it was clearly settled law that barring cases where there was positive evidence of the tampering of sample, it was not incumbent for the prosecution to Examine only or every person in the Office of the Chemical Examiner, who may have had the occasion to handle the sample. Within this Court a Somewhat radical depa0rture from settled stream of precedents seems to have arisen only subsequent to the observations of their Lordships in Daulat Ram's case 1980 Cri LJ 929 (SC) (supra). Since the very fountainhead for the discordant note is the alleged ratio thereof, it becomes necessary to examine in some detail the facts of the said cases and what was specifically laid down therein. A plain reading of the brief judgment makes it manifest that therein it was expressly found that the samples even whilst in the custody of the Inspector and subordinate police officials, were so tampered with that even the Office of the Superintendent of Police, Jodhpur, declined to accept them, as the labels thereon were not in order, It was observed that the prosecution had not taken the Court into confidence in disclosing the reasons as to why the Office of the Superintendent of Police had refused to accept the samples. Their Lordships further held that the prosecution had failed to prove that the seals on the samples had remained intact throughout. It was noticed that, the samples remained in the custody of Sub-Inspector Aidanram, p. S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that whilst in their custody they were not tampered with. On such peculiar findings of fact where the higher. Police Authority had itself refused to accept the samples as being spurious and where the seals thereon were not found to have remained intact, and out of a host of live witnesses, not one was put in the witness-box, their Lordships of the Supreme Court saw no reason to upset the acquittal by the High Court on ah appeal preferred by the State of Rajasthan. Indeed in this case the prosecution had itself realized the serious lacunae and attempted to adduce additional evidence before the trial Court, appellate Court and revisional Court but was denied such an opportunity in view of the peculiar circumstances and extremely vacillating stand taken on behalf of the State which at one time had filed an application and later on chose to withdraw it. It would appear that on the totality of the aforesaid factors their Lordships rightly concluded that they did not find any error of law in the view taken by the High Court. It is well to recall in this context the hallowed rule that if two views are possible, then a judgment of acquittal is not to be disturbed.

6. In view of the above, the learned Counsel for the respondent-State whilst distinguishing Daulat Ram's case (supra) was right in highlighting that it had turned on its exceptional and peculiar circumstances, the most prominent one being that the samples were obviously tampered with and the labels thereon were not in order, thus raising sharp doubts about their authenticity, it was because of this that even the Office of the Superintendent of Police itself declined to accept them for onward transmission to the public Analyst. Now once the very genuineness of the samples becomes mysteriously questionable, the Court would rightly be put on its guard to demand strict proof with regard to their safe custody. Further where such tampered samples would have passed through a host of several hands, the Court may well require the evidence of a witness for satisfying its conscience about the authenticity and the safe custody of the samples. Therefore, the observations in Daulat Ram's case (supra) are not even remotely an authority for the proposition that though there is not a hint of doubt or suspicion initially raised about the genuineness or authenticity of the samples, even then each and every person, who may have handled the same in the office of the Chemical Examinar, must step into the witness-box to depose about its safe transmission. I am unable to conclude that Daulat Ram's case (supra) has laid down any such doctrinaire proposition. In this context it is equally worth recalling that the true import of Daulat Barn's case (supra) had come up for consideration before the Full Bench in Piara Singh v. State of Punj (1982) 84 Punj LR 244 : 1982 Cri LJ 1176, where it was held that it turned on its peculier facts and did not prescribe any inflexible rule about the examination of any official or non-official witnesses.

7. Equally in this context it has to be borne in mind that the persons employed in the Office of the Chemical Examiner are otherwise independent persons, who are not even remotely interested in the success or the failure of the prosecution case. No suspicion in this context, therefore, can easily be laid at their door. The statutory provisions seem to attach some sanctity to the report of the Government Scientific Experts including the Chemical Examiner and Assistant Chemical Examiner whose reports are made admissible even without the requirement of their stepping into the witness-box unless expressly summoned by the Court and even when so, the same statute authorises them to depute any responsible person working with them to depose on their behalf unless expressly directed otherwise. Therefore, insistence by the Court that any or every person who had handled the sample in the Office of the Chemical Examiner must depose about this fact that it had not been tampered with till it was opened for examination, does seem to run counter to the spirit of the statutory provisions on the point. On principle also, therefore, such a view seems to be untenable.

8. Adverting now to the afore-mentioned single Bench decisions of this Court, it is manifest from the very brief judgments recorded that the issue was not adequately canvassed on principle and authority by the learned Counsel for the parties. It seems to have been assumed that Daulat Ram's case 1980 Cri LJ 829 (SC) (supra) had laid down expressly that all the concerned officials of the office of the Chemical Examiner must be examined with regard to the safe custody of the samples therein till they reached the hands of the persons who actually analysed the same. As already discussed, no such ratio flows from the observations of their Lordships in Daulat Ram's case (supra). With the greatest respect to the learned Judges, inferences derived from the said case are not tenable and they, consequently, do not lay down the law correctly. Therefore, Criminal Revn. No. 219 of 1979 Tehal Singh v. State of Punjab decided on Nov. 20, 1980, Reported in (1981) 8 Cri LT 58 Punj & Har Criminal Revn. No. 304 of 1979 Gurcharan Singh v. State of Punjab decided on Feb. 5, 1981 : and the cases reported as Amarjit Singh v. State of Punjab 1981 Chand. Cri C. 170 (P&H;) Atma Singh v. State of Punjab 1981 Chand. Cri C. 181 (P&H;); and Bishan v. State of Punjab 1981 Chand. Cri C. 243 : 1982 Cri LJ NQC 22 (P&H;); are hereby overruled. Inevitably it follows that any other single Bench judgment taking the same view can no longer be held as good law.

8A. In this context it seems particularly pertinent to recall that the Division Bench judgment in Criminal Appeal No. 479-DBA of 1980 State of Punjab v. Nachhattar Singh decided on Jan. 5, 1982 reported in 1982 Cri LJ 1197 has taken the same view as I am inclined to take. However, it would appear that even after reference to the aforesaid decisions, the Bench did not choose to specifically pronounce about the correctness thereof and thus leaving the issue somewhat in doubt.

9. To conclude on this aspect, it must, therefore, be held that it is not incumbent on the prosecution to examine any or every concerned official within the office of the Chemical Examiner with regard to the safe custody of the sample therein, and its failure to do so does not introduce any infirmity in its case.

10. One may now advert to the question whether Section 293 of the Code renders admissible the averments in the report of the Chemical Examiner, both as regards the condition and also the manner of the receipt of the sample in his office. Herein, the basic stand taken on behalf of the petitioner was rested on certain observations made in the single Bench judgment of this Court in Santa Singh v. State (1970) 72 Pun LR 618, in the context of Section 510 of the old Code. Therefore, what calls for pointed notice at the very threshold is the fact that the said view stands already overruled by the Division Bench in Nachhattar Singh's case 1982 Cri LJ 1197 Puni & Har (supra). Nevertheless, learned Counsel for the petitioners persisted on their submissions that Section 293 of the Code renders only that part of the report admissible in evidence which pertains strictly to the opinion of the Chemical Examiner with regard to the contents of the sample and not with regard to its condition and the manner of its receipt in the office.

11. Inevitably the issue must first be construed in the light of the language of Section 293 of the Code itself coloured as it is by the predecessor provision of Section 510 of the old Code. That the Legislature has kept the amplitude of the provision as a wide one seems to be manifest from the very opening part of Section 293 of the Code itself. The language does not seems to confine it to the opinion of the expert stricto sensu or to any artificially constricted meaning of his 'Report'. Indeed, the statute talks of any document purporting to be a report under the hand of a Government scientific expert. In legal terminology, the word 'document' is one of larger connotation and what is more, the Section brings within its ambit any such document purporting to be such a report. It would thus appear that there is no warrant for any artificial constriction or narrowing down the ambit of the report visualised under Section 293 of the Code to only that part thereof, which pertains to the opinion of the Chemical Examiner and excluding all the rest therefrom.

12. Again the significant words in Section 293 of the Code seem to be 'upon any matter or thing duly submitted to him for examination or analysis'. It would seem to be plain that the words 'duly submitted' include within their ambit the mode and manner of the submission of the sample and its receipt by the Scientific Expert. Consequently, the report with regard to the manner of the submission of the sample for examination and its condition would come squarely within the scope of Section 293 of the Code.

13. Learned Counsel for the petitioners then made a vain attempt to fall back on Section 45 of the Indian Evidence Act for contending that the report of the Chemical Examiner, as a whole, would not be admissible thereunder. It seems to be obvious that recourse to Section 45 of the Indian Evidence Act, in this context, is hardly permissible. It was riot disputed before us that Section 293 of the Code was a special provision which in particular terms made admissible the reports of those Scientific Experts which have been enumerated expressly in Sub-section (4) of Section 293 of the Code. It is obvious that special provisions of Section 293 of the Code herein must prevail over the general provisions of the Evidence Act, on the hallowed rule of construction that the special overrides the general, Consequently, the particular provisions regarding the admissibility of the reports of the Chemical Examiner or Assistant Chemical Examiner to Government, provided under Section 293(4)(a) of the Code, are plainly applicable and any document purporting to be the report of such an expert can as a whole be used as evidence at the trial, Now once such a report is made admissible by law, it seems to me as wholly hyper-technical to dissect it into different parts and hold certain parts thereof as being cut of the ambit of such admissibility.

14. On the larger canons of construction as well, it is not possible to accede to the view canvassed on behalf Of the petitioners. A reading of Section 293 of the Code, as also the corresponding provisions of the earlier Section 510, plainly indicates the clear policy of the Legislature, to obviate the examination of expert witnesses in this context and making their reports admissible per se. Reference t0 Sub-section (3) would indicate that even where such an expert is summoned (unless expressly directed to appear personally), he may depute any other responsible officer working with him to depose about the same on his behalf. To read this provision so stringently as to make every (or any) person handling the sample in the office of the Chemical Examiner, as a necessary witness, would, therefore, be in a way defeating the very purpose of the statute itself. It is plain that in practice it can hardly be possible to entrust all the samples to the Chemical Examiner himself or to the particular Analyst who may later come to examine the same. Therefore, the insistence upon obtaining the evidence or deposition of all employees of the Chemical Examiner's office, who would meanwhile be. concerned with the safe transmission of the sample originally received, may well render nugatory the purpose underlying Section 293 of the Code and inordinarely delay the conclusion of criminal trials which, it is the policy of the law, to conclude expeditiously.

15. Viewed from any angle, it seems to follow that Section 293 of the Code renders admissible the report of the Chemical Examiner as a whole, including the averments with regard to the condition of the sample and the seals thereon and the manner of its receipt. The answer to the second question, posed, at the outset is, therefore, rendered in the affirmative.

16. The two Significant legal questions having been answered as above, the Criminal Revisions would now go back before the single Bench for a decision on merits.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //