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Suleman Usman Memon Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1961CriLJ78
AppellantSuleman Usman Memon
RespondentThe State of Gujarat
Cases ReferredTitli v. Alfred Robert Jones
Excerpt:
- - 1. the short and interesting question' which arises in this criminal revision application is as regards the weight to be attached to a report of a chemical examiner when the report is tender ed as evidence under section 510 of the code of criminal procedure without summoning and examining the chemical examiner as to the subject-matter of the report. relying on the report the prosecution contended that it was proved that the concentration of alcohol in the blood of the accused was 0.191 per cent and that having regard to section 66(2) of the act the burden of proving that the liquor consumed was a medicinal or a toilet preparation or an antiseptic solution or a flavouring extract, essence or syrup containing alcohol the consumption of which was not in contravention of the act or any.....orderbhagwati, j.1. the short and interesting question' which arises in this criminal revision application is as regards the weight to be attached to a report of a chemical examiner when the report is tender ed as evidence under section 510 of the code of criminal procedure without summoning and examining the chemical examiner as to the subject-matter of the report. the accused was tried by the jadicial magistrate, first class, broach for the offence of consuming liquor tinder section 66(1)(b) oft the bombay prohibition act, 1949 hereinafter referred to by me as the act. the charge against-the accused was that on 16th december, 1959 at about 5-45 p.m., he was found on a public road having consumed liquor in contravention of the provisions of the act. a sample of the blood of1 the accused.....
Judgment:
ORDER

Bhagwati, J.

1. The short and interesting question' which arises in this Criminal Revision Application is as regards the weight to be attached to a report of a Chemical Examiner when the report is tender ed as evidence under Section 510 of the Code of Criminal Procedure without summoning and examining the Chemical Examiner as to the subject-matter of the report. The accused was tried by the Jadicial Magistrate, First Class, Broach for the offence of consuming liquor tinder Section 66(1)(b) oft the Bombay Prohibition Act, 1949 hereinafter referred to by me as the Act. The charge against-the accused was that on 16th December, 1959 at about 5-45 P.M., he was found on a public road having consumed liquor in contravention of the provisions of the Act. A sample of the blood of1 the accused was taken by the police and submitted to the Chemical Examiner to the Government for determining the concentration of alcohol in the-blood. Though the sample of the blood was taken on 16th' December, 1959, the same was not submitted to the Chemical Examiner until 8th January, 1960. It is not known on what precise date the Chemical Examiner tested the sample of the blood but a report was submitted by the Chemical' Examiner to the police on 14th January, 1960 stating the opinion of the Chemical Examiner that the concentration of alcohol In the sample of the blood was 0.191 per cent. The factual data on the basis of which the opinion was arrived at by the Chemical Examiner were not mentioned in the report nor did the report contain any grounds or reasons which had induced the Chemical Examiner to form the opinion. At the trial the prosecution tendered the report as evidence under Section 510(1) of the Code of Criminal Procedure. The learned Magistrate did not think it necessary to summon-and examine the Chemical Examiner as to the subject-matter of the report and received the report in evidence under Section 510(1). The accused also did not apply to the learned Magistrate under Section 510(2) to summon and examine the Chemical Examiner as to the subject-matter of the report. Relying on the report the prosecution contended that it was proved that the concentration of alcohol in the blood of the accused was 0.191 per cent and that having regard to Section 66(2) of the Act the burden of proving that the liquor consumed was a medicinal or a toilet preparation or an antiseptic solution or a flavouring extract, essence or syrup containing alcohol the consumption of which was not in contravention of the Act or any Rules, Regulations or Orders made thereunder wasUpon the accused and that since the accused had failed to discharge such burden, the learned Magistrate was bound to presume that the accused had consumed liquor In contravention of the provisions of Act or any Rules, Regulations or Orders made under the Act. The learned Magistrate accepted this contention of the prosecution and held on the Basis of the report that it was proved by the prosecution that the concentration of alcohol in the blood of the accused was 0.191 per cent and that the burden of proving that he had consumed non-prohibited liquor was, therefore, on the accused. The case of the accused was that he had consumed waterbury compound which is a medicinal preparation containing alcohol. The learned Magistrate disbelieved the story of the accused and held that the accused had failed to discharge the burden of proving that the liquor consumed by him was non-prohibited liquor and the Court was, therefore, entitled to presume that the accused had consumed liquor in contravention of the provisions of the Act or any Rules Regulations or Orders made under the Act. The learned Magistrate accordingly convicted the accused of the offence under Section 66(1)(b) of the Act and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Ms. 1000/- and in default to suffer rigorous imprisonment for further two months.

2. The accused preferred an appeal against the order of conviction and sentence passed against him by the learned Magistrate. The appeal was heard by the Sessions Judge, Broach and the learned Sessions Judge upheld the conviction and sentence recorded against the accused. The learned Sessions Judge negatived the contention of the accused that no weight should be attached to the report since the report was meagre and cryptic andthe Prosecution had not examined the Chemical Examiner as regards the subject-matter of the report and that the report having no evidentiary value, the prosecution cannot be said to have proved that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent so as to attract the applicability of Section 66(2) of the Act. The learned Sessions Judge held that it was proved by the report that the concentration of alcohol in the Wood of the accused was 0.191 per cent and that the burden of proving that he had consumed non-prohibited liquor was, therefore, on the accused and that since the accused had failed to discharge that burden, it was rightly presumed that the accused had consumed liquor in contravention ofthe provisions of the Act or any Rules, Regulations or Orders made under the Act. The learned Sessions Judge accordingly maintained the conviction and sentence recorded against the accused and dismissed the appeal. The accused thereupon preferred this Criminal Revision Application to this Court. The Criminal Revision Application was filed by the accused from jail and a rule was issued by my brother Mehta on 23rd December, 1960. When toe Criminal Revision Application reached hearing before me, 1 felt that since the accused was not represented by any lawyer and the question involved in the Criminal Revision Application was a question of law, it would be desirable to appoint some Advocateamicus curiae to assist the Court by presenting the case on behalf of the accused and I, therefore, appointed Mr. M.U. Shah amicus curiae to argue the case on behalf of the accused. Mr. M.U. Shah accordingly appeared amicus curiae and presented the arguments on behalf of the accused. I am thankful to Mr. M.U. Shah for the assistance rendered by him to the Court.

3. The only question which has been debated before me is as to what weight should be attached to the report of the Chemical Examiner. It is undisputed that the prosecution can succeed only if the prosecution brings the case within Section 66(2) of the Act so as to raise a presumption against the accused and in order to raise a presumption against the accused under Section 66(2), the prosecution must prove that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. It is only if the prosecution establishes that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent, that the presumption arises under Section 66(2) that the accused had consumed prohibited liquor and in that event it would be for the accused to rebut the presumption by showing that the liquor consumed by him was non-prohibited liquor. The foundation for the application of the presumption under Section 66(2) is that it should be proved by the prosecution that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. Now, the only piece of evidence by which the prosecution in the present case sought to prove that the concentration of alcohol in the blood of the accused was no less than 0.05 per cent was the report which contained the opinion of the Chemical Examiner that the concentration of alcohol in the blood of the accused was 0.191 per cent. If the report could be accepted as proof of the fact that the concentration of alcohol in the blood of the accused was 0.191 per cent, the presumption under Section 66(2) would certainly arise and the accused having failed to discharge the burden of proving that he had consumed non-prohibited liquor, would be liable to be convicted for the offence of consuming prohibited liquor. If, on the other hand the report could not be accepted as proof of the fact that the concentration of alcohol in the blood of the accused was 0.191 per cent, the presumption would not arise and in that event the prosecution would have to prove that the accused consumed prohibited liquor and such proof being lacking, the accused would be entitled to be acquitted. It will thus be seen that the conviction of the accused in the present case rests solely on the evidentiary value of the report. If the evidentiary value of the report is such that it can be said to be proved from the report that the concentration of alcohol in the blood of the accused was 0.191 per cent, the conviction must stand; otherwise the conviction must be set aside. The crucial question, therefore, is what evidentiary value should be attached to the report and how far it can be said to be proved from the report that the concentration of alcohol in the blood of the accused was 0.191 per cent.

4. Mr. M.U. Shah on behalf of the accused relied strongly on a decision of the Allahabad High Court in Emperor v.Happu : AIR1933All837 and contended on the strength of that decision that no weight should be attached to the report since the report was not given on oath and was untested by cross-examination. Now it is true that it is an elementary principle of law that evidence which cannot be tested must be rejected. There are two methods of testing evidence and ensuring that truth comes out in evidence. The first is by administration of oath and the other is by cross-examination. The administration of oath is designed to secure truthfulness in evidence by providing not only moral sanction but also sanction of perjury. Cross-examination on the other hand extracts truth and exposes falsehood much against the will of the person examined. The exercise of the right of cross-examination has always been regarded as one of the most efficacious tests which the law has devised for discovery of truth. So important is this right that the law declares that no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. These are the two most important safeguards against false testimony and unless evidence is given on oath and is tested by cross-examination it is not legally admissible against the party affected. This is the reason why hearsay evidence is excluded; it is not on oath, and cannot be tested by cross-examination. This fundamental principle runs like a golden thread through the entire fabric of the law of evidence. Section 510 of the Code of Criminal Procedure as it originally stood prior to its amendment by Act XXVI of 1955, however, made a departure inasmuch as it provided that:

Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, upon anymatter 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.

It is to be noted that under this remarkable provision of law, which according to Young, J., in ILR 56 AW 228 : AIR 1933 All 837 supra was contrary to the accumulated legal experience of centuries, any document purporting to be a report of the Chemical Examiner could be received in evidence without summoning the Chemical Examiner as a witness and proving the report through him. The discretion was left to the Court, if it thought fit, to summon and examine the Chemical Examiner as to the subject-matter of the report but there was no obligation on the Court to do so and the accused was not entitled to have the Chemical Examiner summoned as a witness so that he could be cross-examined. The Court could receive the report in evidence without insisting on proof of the report by examining the Chemical Examiner. The result was that though the evidence furnished by the report was not on oath and the accused had no opportunity of testing the correctness of the report by cross-examination, yet it was admissible evidence against the accused and the conviction of the accused could be based upon it. This was an extraordinary provision which was contrary to the fundamental basic principle of judicial procedure that the evidence of one party should not, to use the words of Lopes, L.J., in Allen v. Allen, 1894 P. 248 253 et seq, 'be received as evidence against another party without the latter having an opportunity of testing its truthfulness by cross-examination'. That was the reason why the Allahabad High Court in ILR 56 All 228 : AIR 1933 All 837 supra observed:

Whatever may be said of the wisdom of this enactment - contrary as it is to the accumulated legal experience of centuries of what is necessary for the protection of accused persons - nothing is more certain than that Section 510, fortunately for accused persons, says nothing as to the weight to be attached to the report. There is no reason, therefore, why the ordinary rule of law; should not be strictly enforced if any weight is sought to be attached to a report on the chemical examination of suspect material....

No person therefore ought to be put in peril of capital, or any punishment on a written report not given on oath and untested by cross-examination. To accept such a report - whatever it may contain - as proof of death by arsenic poisoning, or of anything, appears to me to be an impossible proposition in law.

The law was, however, amended in 1955 by Act XXVI of 1955. The original Section 510 was made Sub-section (1) of Section 510 and a new Sub-section (2) was added in the following terms:

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

The result is that now by Sub-section; (2) a right is conferred both on the prosecution as well as the accused to have the Chemical Examiner summoned and examined as a witness. Formerly prior to the amendment, the Court had a discretion whether or not to summon and examine the Chemical Examiner as to the subject-matter of the report, but now after the amendment, the Court is bound, on the application of the prosecution or the accused, to summon and examine the Chemical Examiner as a witness. The accused has a right under Sub-section (2) to ask the Court to summon the Chemical Examiner as a witness and the Court is bound, if the accused so applies, to call the Chemical Examiner and examine him as to the subject-matter of the report so that the accused can cross-examine him The accused has thus now the right and opportunity to cross-examine the Chemical Examiner as to the subject-matter of the report, which right and opportunity he did not possess prior to the amendment of Section 510 by the enactment of Sub-section (2). The infirmity from which the report suffered as a piece of evidence prior to the amendment is, therefore, removed as a result of the introduction of the provision contained in Sub-section (2). The criticism can no longer be levelled that the evidence furnished by the report is not given on oath and is untested by cross-examination because the accused is now entitled to insist that the Chemical Examiner shall' be summoned and examined on oath and the accused has the right and opportunity to cross-examine the Chemical Examiner as to the subject-matter of the report. It is immaterial if the accused does not avail himself of this right and opportunity under Sub-section (2); the report which is admitted in evidence under Sub-section (1) does not lose its evidentiary value merely because the accused does not apply to the Court under Sub-section (2) to summon and examine the Chemical Examiner as to the subject-matter of the report and as a result thereof the evidence furnished by the report is not actually tested by cross-examination. The principle that evidence which is not tested by cross-examination cannot be received against the party affected does not insist on actual cross-examination but merely requires an opportunity to exercise the right of cross-examination if desired. As observed by Ellenborough, L. C.J., in Cazenove v. Vaughn, 1 M and S 4 at D. 6.

the rule of the common law is that no evidence shall be admitted but what is or might be under the examination of both parties. But if the adverse party has had liberty to cross-examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-examined'.

The question, therefore, always is not whether there is actual cross-examination of the witness but whether the party adversely affected by the evidence of the witness has had an opportunity of testing the evidence of such witness by cross-examination. If the party adversely affected had the right and opportunity to cross-examine the witness it is immaterial whether or not he exercised Such right and opportunity for even if he did not exercise such right and opportunity, the result would be the same as if he had exercised such right and opportunity and the evidence given against him had been tested by actual cross-examination. The accused has now under Sub-section (2) the right and opportunity to cross-examine the Chemical Examiner as to the subject-matter of the report which may have been admitted in evidence under Sub-section (1) and even if the accused does not choose to exercise this right and opportunity by applying to the Court to summon and examine the Chemical Examiner as a witness, the effect is the same as if the accused had exercised this right and opportunity and actually cross-examined the Chemical Examiner as to the subject-matter of the report, so that the evidence furnished by the report does not suffer from the blemish that it is not given on oath and is untested by cross-examination. It is, therefore, obvious that the principle of the decision in ILR 56 All 228 : AIR 1933 All 837 supra can no longer apply after the amendment of Section 510 by the enactment of Sub-section (2). The introduction of Sub-section (2) in Section 510 has removed the infirmity or blemish which according to the decision of the Allahabad High Court in that case attached to the report as a piece of evidence, I must, therefore, reject the contention of Mr. M.U. Shah that no weight should be attached to the report since the report was not given on oath and was untested by cross-examination.

5. The next contention of Mr. M.U. Shah was that the report was meagre and cryptic and did not contain anything beyond the mere ipse dixit of the Chemical Examiner that the concentration of alcohol in the sample of the blood of the accused was O.191 per cent and that no weight should, there-lore, be attached to the report, Mr. M.U. Shah relied on a decision of the Bombay High Court in Emperor v. Behram Irani, 46 Bom LR 481 : AIR 1944 Bom 321, in support of this contention. In that case the accused was one of the proprietors of a bakery called the Rising Sun Bakery. There was at the relevant time in force a notification issued by the Government of Bombay in exercise of the powers conferred by Rule 81(2) of the Defence of. India Rules directing that no person within the limits of the City of Bombay should from the date of the notification use wheat flour or any wheat product for the preparation of cakes, pastry or any kind of sweetmeats except under a licence granted by the Director of Civil Supplies or by some other authorised person. The bakery of the accused was. raided by the police on 13th January, 1943 on the suspicion that the articles of food in the bakery contained wheat products in contravention of the notification. A large number of cakes of various sizes, biscuits and sweetmeats were found on the premises and the police in the presence of the Panchas attached one sample of each variety. The samples were sent by the police to the Chemical' Examiner and the Chemical Examiner reported that wheat products had been used for the manufacture of all the articles except two, The accused was thereupon prosecuted under Rule 81(4) read with-Rule 81(2) of the Defence of India Rules for having used wheat products for the preparation of cakes. At the trial the report of the Chemical Examiner was tendered in evidence under Section 510 When the report of the Chemical Examiner was sought to be put in, counsel for the accused protested against its going in and contended that the Chemical Examiner should be examined as a witness. But the Chemical Examiner was not called for examination and the report was allowed to go in. It was contended on behalf of the accused that the report did not show what tests were applied by the Chemical Examiner, what was meant by the words 'wheat products' and what was the percentage of wheat products found in the cakes and no weight should, therefore, be attached to the report. On hearing this argument on behalf of the accused, the learned Magistrate offered to call the Chemical Examiner if the defence counsel wanted him to do so. But at that stage counsel for the accused stated that he did not wish to avail himself of the Court's offer as he did not wish to give up the? advantage which the accused had gained by the failure of the prosecution to call the Chemical Examiner as a witness. The learned Magistrate thereafter convicted the accused and sentenced him to suffer simple imprisonment for two weeks and1 to pay a fine of Rs. 1,000/-. The accused went in appeal to the High Court. The High Court allowed the appeal and acquitted the accused. Referring-to the report of the Chemical Examiner, the High Court observed as follows:

It is obvious, however, that the weight to-be attached to such a report must depend to a considerable extent on the reasons which the Chemical Analyser gives for the conclusion which he has arrived at, and in some cases, as in the one before us, where the matter to be reported on is the presence of certain substances in the article submitted for examination, much would turn on the quantity of the incriminating substance found in the article. If the Chemical Analyser's report alone is to be-considered sufficient, it should contain all the information which that officer himself would have been able to furnish if he had been examined as a witness. In the present case the report merely says that wheat products had been used in the manufacture of the cakes. The danger of accepting a mere report of the Chemical Analyser in criminal cases lias been very forcibly pointed out by Young, J., in ILK. 56 All 228 : AIR 1933 All 837 supra. It is true that the learned Magistrate offered, though at a late stage, to call the Chemical Analyser as a witness if the accused wanted him to do so, and the accused's counsel declined at that stage to avail himself of this offer. But it was for the prosecution to prove that wheat products had been used in the manufacture of these cakes,...

Mr. M.U. Shah, leaned heavily on these observations and contended that in the present case the report suffered from the same defect which impaired the evidentiary value of the report in the case before the Bombay High Court. Mr. M.U. Shah pointed out that the report on the basis of which the accused had been convicted contained nothing beyond the bare opinion of the Chemical Examiner and neither the factual data on the basis of which the opinion was arrived at by the Chemical Examiner were mentioned in the report nor did the report disclose the grounds or reasons which had induced the Chemical Examiner to form the opinion, According to Mr. M.U. Shah the opinion of the Chemical Examiner had little or no value since it was not supported by any reasons or factual data and no weight could, therefore, be attached to the report. In my opinion the argument of Mr. M.U. Shah is well-founded and receives complete support from the authority of the decision of the Bombay High Court to which I have just referred. It is not enough for the Chemical Examiner merely to state his opinion as to what was the concentration of alcohol in the sample of the blood analysed by him. . The report of the Chemical Examiner must show the tests or experiments performed by him, the factual data revealed by such tests or experiments and the reasons leading to the formation of the opinion from such factual data. Otherwise the report would have no value as a piece of evidence. This legal proposition emerges clearly and unmistakably if one bears in mind the true nature of the evidence furnished by the report. The report contains the opinion of the Chemical Examiner as regards the concentration of alcohol in the sample of the blood examined by him and such opinion is admissible in evidence under Section 45 of the Indian Evidence Act. Whether the concentration of alcohol in the blood of the accused was not less than O.05 per cent is a, point in issue and the Court has to form its own conclusion or opinion on that point. Ordinarily the opinions of third persons are irrelevant and the witnesses must depose only to those facts of which they have personal knowledge i.e., what they themselves saw or heard or perceived by any other sense or in any other manner Vide Section 60 of the Indian Evidence Act. There are, however, cases in which the Court is not in a position to form a correct judgment without the help of persons who have acquired special skill or experience on a particular subject, e.g., when the question involved is beyond the range of common experience or common knowledge or when special study of a subject or special training or special experience in it is necessary. In such cases the help of the expert is required and. the rule is, therefore, relaxed and expert evidence is admitted to enable the Court to come to a proper decision. Sections 45 to 51 of the Indian Evidence Act enumerate the cases in which expert evidence is allowed to be admitted. Section 45 provides that when the Court has to form an opinion upon a point of foreign law, or of science or Article or as to identity of handwriting or finger impressions, the Opinions upon that point of persons specially skilled in such foreign law, science or Article or in questions as to identity of handwriting or finger impressions are relevant facts and can, therefore, be received in evidence. The point as to what was the concentration of alcohol in the blood of the accused is essentially a point of science and the opinion of the Chemical Examiner on that point is, therefore, admissible in evidence under Section 45 of the Indian Evidence Act. It must, however, be remembered that the opinion of the Chemical Examiner is merely a piece of evidence on the point regarding concentration of alcohol in the blood of the accused and it is the Court which has to form its opinion on the entire evidence as to whether the concentration of alcohol in the blood of the accused was not less than O.05 per cent. The report of the Chemical Examiner containing his opinion must, therefore, disclose the factual data on which the opinion is based and the reasons in-support of the opinion. Opinion is no evidence unless reasons in support of the opinion are given, for it is then only that the Court can scrutinize the reasons and decide for itself as to what weigh should be attached to the opinion. As observed in Sanderson v. Nashua, 44 N. Section 492,

neither judge nor jury can know what credence to give to a mere opinion, unless the reasons on which it is founded are set forth.

To the same effect are also the following observa-itions of Mukerji, J. in Titli v. Alfred Robert Jones : AIR1934All273 :

'The opinion of an expert by itself may be relevant but would carry little weight with a Court unless it is supported by a clear statement of what he noticed and on what he based his opinion. The expert should, if he expects his opinion to be accepted, put before the Court all the materials which induced him to come to his conclusion, So that the Court, although not an expert, may form its own judgment on those materials : Section 51 of the Evidence Act. In the evidence of Captain Aitchison the materials on which his opinion was formed are, generally speaking, wanting. If he had given the questions which he put from time to time and the answers he got to those questions, if he had told us that he observed the petitioner from time to time without the petitioner knowing that he was being watched and if we had been told what Captain Aitchison observed, we might have been in a position to say whether the opinion of the expert should be accepted or not. The mere mention that a certain kind of test, known as Binet and Simon tests were applied and certain results were obtained, might be relevant as a piece of evidence but would not be conclusive.'

The opinion of the Chemical Examiner stands on the same footing as any other piece of evidence and it is difficult to see how any reliance can be placed on the opinion unless it is supported by good reasons founded on facts which warrant the opinion. If the reasons are good and convincing and the factual data on the basis of which the opinion is formed warrant the opinion, the Court will rely on the opinion and hold on the basis of the opinion that the concentration of alcohol in the blood of the accused was as opined by the Chemical Examiner, If, however, the factual data are not clear or adequate or the reasons are frivolous or inconclusive, the opinion will have no probative value. That is the reason why Section 51 of the Indian Evidence Act provides that whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. It is for the same reason that the Bombay High Court did not attach any weight to the report of the Chemical Examiner in the case of 46 Bom LR 481 : AIR 1944 Bom 321 Supra. If the report merely gives the opinion of the Chemical Examiner without any factual data or any grounds or reasons in support of the opinion and if such opinion is without anything more accepted as proof of the fact which is necessary to be proved against the accused for the purpose of securing his conviction, the merit of the case against the accused would really be decided by the Chemical Examiner and not by the Court and the Court would merely give its imprimatur to the conclusion reached by the Chemical Examiner. This surely cannot be the position in law. It is, therefore, clear that the report of the Chemical Examiner would have no probative value and no weight could be attached to the report unless the report is full and complete and discloses the tests or experiments performed by the Chemical Examiner, the factual data revealed by such tests or experiments and the reasons which led the Chemical Examiner to form the opinion from such factual data. In short the report must contain all the information which the Chemical Examiner himself would have been able to furnish if he had been examined as a witness. If the report gives merely the opinion of the Chemical Examiner without any factual data or any grounds or reasons, the report would have no evidentiary value. The enactment of Sub-section (2) in Section 510 does not make any difference to this legal position. As pointed out by me in an earlier part of the judgment what Sub-section (2) does is to confer both on the prosecution as well as the accused the right to have the Chemical Examiner summoned and examined as a witness. Formerly the prosecution also had no right to insist that the Chemical Examiner should be called as a witness. The Chemical Examiner could be called and examined as a witness only if the court so deemed fit. The prosecution has, therefore, now been given the right under Sub-section (2) to require the Court to summon and examine the Che. mical Examiner as to the subject matter of the report. If the report of the Chemical Examiner is meagre and cryptic and does not contain the factual data revealed by the tests or experiments performed by him and the grounds or reasons in support of the opinion, the prosecution can now apply to the Court under Sub-section (2) to summon and examine the Chemical Examiner and the Court would be bound to call the Chemical Examiner as a witness so that he could be examined as to the subject matter of the report. The accused has also been given the same right of requiring the Court to summon and examine the Chemical Examiner as a witness and the accused has, therefore, now the right and opportunity to cross-examine the Chemical Examiner which he did not possess prior to the enactment of Sub-section (2). The accused may choose to exercise his right or opportunity under Sub-section (2) or he may choose not to do so. If the evidence furnished by the report has little or no probative value, the accused may very well choose not to require the Chemical Examiner to come and give evidence. The accused may very well consider that the evidence led on behalf of the prosecution is useless and is not sufficient to prove the fact alleged against him and in that event the accused may not consider it necessary to have the Chemical Examiner summoned and examined as to the subject matter of the report, for by doing so the accused may run the risk of filling in the lacuna left by the prosecution and strengthen the case against him. The burden is on the prosecution to prove that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent and if the prosecution does not produce a report of the Chemical Examiner which is sufficient or adequate to induce the Court to come to the conclusion that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent, the prosecution cannot rely on the failure of the accused to apply to the Court under Sub-section (2) for summoning and examining the Chemical Examiner as to the subject matter of the report. If the report does not contain anything beyond the bare opinion of the Chemical Examiner and the opinion is not supported by any factual data or any grounds or reasons, the evidence furnished by the report would have little value and even if there is no cross-examination of the Chemi cal Examiner, reliance cannot be placed on the report for the purpose of convicting the accused. This would be much more so when the conviction of the accused rests entirely on the evidentiary value to be attached to the report. It would be most unsafe to convict the accused on the basis of a report which contains merely the ipse dixit of the Chemial Examiner and which does not contain any factual data or any grounds or reasons which the Court can examine for the purpose of deciding whether the opinion contained in the report is correct or not. To convict the accused on the basis of such a report would be to leave the decision of the case in the hands of the Chemical Examiner which certainly the Court cannot do. I am, therefore, of the opinion that the enactment of Sub-section (2) has not made any difference to the legal position and the evidentiary value to be attached to the report must still depend upon the nature of the report.

6. In the present case all that the report of the Chemical Examiner says is that the concentra-tion of alcohol in the sample of the blood analysed by him was 0.191 per cent. Now there are several methods for determination of alcohol in human blood. As pointed out in Taylor's Principles and Practice of Medical Jurisprudence, Volume II, page 446, the panel of the Royal Institute of Chemistry after considering many methods of investigation including the principal ones in use and as a result of collaborative work on selected procedures by a group of experienced analysts, favours the following methods of testing:

(i) A precisely described and amended Cavett (macro) method.

(ii) A detailed and slightly modified Kozelka and Hine (Macro) method.

According to the panel, these two methods should be recognized as the official methods for Court work, in the present case the Court is not told which method of testing was employed by the Chemical Examiner - whether it was one of the methods mentioned above or a different method altogether. If the method of testing employed by the Chemical Examiner was not one of the methods mentioned above, it would be a question for consideration how far the method employed by the Chemical Examiner was a reliable method and the result of his analysis could be depended upon for arriving at a particular conclusion. Even if the method of testing employed by the Chemical Examiner was one of the methods mentioned above, it is essential that the Court should know which one of these methods it was that was employed by the Chemical Examiner. As observed in Taylor's book at page 447 'the Cavett method cannot be used if ketonic bodies are present and it is essential, therefore, that preliminary tests for these substances should be made' according to certain methods, whereas the presence of ketonic bodies does not interfere with the procedure in the Kozelka and Hine method. If the Cavett method was used by the Chemical Examiner, it would have to be ascertained whether any preliminary tests for ketonic bodies were made and what was the result of those tests. The presence of ketonic bodies would interfere with the procedure followed in the Cavett method and affect the correctness of the result. Apart from this requirement, Taylor's book also lay? down the following precautions which must be taken in the Cavett method:

Note 1. It is essential to ensure that the small Erlenmeyer flask and stopper are thoroughly cleaned with hot chromic acid and rinsed at least six times with tap water and twice with distilled water. Dry both flask and stopper in an air oven. Grease must not be used on stoppers - for lubrication merely damp the part of the stopper that fits in the top of the flask with distilled water and ensure that the water does not enter the flask.

Note 2. As this is a micro-method it is essential to take the special precautions that are common in such work, The laboratory itself must be clean, and free from dust, and exceptional care in such matters must be taken. It is essential that the distilled water should be freshly distilled into a clean glass vessel - ordinary laboratory distilled water is likely to give falsely high results' The Court is not told whether the Cavett method was employed by the Chemical Examiner and if that method was employed, whether these precautions were observed in testing the blood of the accused. For the Kozelka and Hine method, Taylor's book provides the following precautions:

Note. It is necessary for all glassware to be cleaned with hot chromic acid and well rinsed with tap water and finally with two minsings of distilled water, followed by drying in an air oven. The procedure must be followed exactly and no grease is to De used on stoppers...a trace of distilled water should be used to lubricate jointsAgain the Court is not told whether the Kozelka and Hine method was employed by the Chemical Examiner and if so, whether these precautions were observed. The Court is not even told as to what was the quantity of blood tested by the Chemical Examiner. The report of the Chemical Examiner is silent as to the reagents. Though the Cavett method as well as the Kozelka and Hine method are elaborate as appears clearly from the description of these methods given in Taylor's book, the report does not say a word as regards the process actually carried out by the Chemical Examiner for arriving at the concentration of alcohol in the blood of the accused nor does it contain any factual data revealed as a result of the process employed by the Chemical Examiner. Brevity seems to be the only merit of the report. The report contains nothing more than the mere ipse dixit of the Chemical Examiner that the concentration of alcohol in the sample sent by the police was 0.191 per cent. I do not see how such a report can possibly be accepted as proof of the fact that the concentration of alcohol in the blood of the accused was 0.191 per cent. If the report cannot be accepted as proof of the fact that the concentration of alcohol in the blood of the accused was 0.191 per cent, there is-no other evidence to show what was the concentration of alcohol in the blood of the accused and in-that event the prosecution must be held to have failed to establish that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. If it is not established by the prosecution that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent, the prosecution cannot rely on the presumption under Section 66(2) of the Act and without the aid of the presumption, the prosecution must obviously fail.

7. The result is that this Criminal Revision Application is allowed and the Rule is made absolute. The conviction and sentence recorded against the accused are set aside and the accused is acquitted of the offence under Section 66(1)(b) of the Act. The fine if paid by the accused shall be refunded to him.


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