Joginder Kaur vs The State of Punjab

D.S. Tewatia, J.—This is recommended revision petition directed against the order dated 19th April, 1973, where by the learned Judicial Magistrate 1st Class, Moga, rejected the prayer of the accused-petitioner for having a separate sample of opium sent for chemical analysis to the Chemical Analyst, Calcutta, for opinion. The learned Additional Sessions Judge. Faridkot, relying on Inder Singh v. The State of Punjab 1973 Ch. L.R. 561 has come to the conclusion that the order of the learned Magistrate was erroneous and deserves to be set aside.

Mr. Karnall Singh appearing for the petitioner has sought to sustain the recommendation with the help of two other decisions of this Court reported in Madan Lal v. The State of Punjab (1971) 73 P.L.R. 107 and Surjit Singh v. The State of Punjab (1972) 74 P.L.R. 830.

In all the three decisions, I do not find any discussion of the matter in detail and the reasoning that an accused is entitled to lead evidence in rebuttal of the evidence of the Chemical Analyst produced by the prosecution, does not appear to be convincing, for, in my opinion, the public institutions like Forensic Science Laboratory, Finger Print Bureau, or the Chemical Analyst give expert opinion, which may go in favour of the prosecution or in favour of the accused. It would not be right to give a right to the accused to have a separate sample examined by a Chemical Analyst of the same standing either in the very state or in some other state. Of course, an appeal to a specialist of higher standing, as is recognised by the Prevention of Food Adulteration Act, is a different matter. Since the matter is such that it is likely to recur time again, it would be desirable to have an authoritative decision instead of recording dissent form the decisions of the learned Single Judges that have been cited. I, therefore, direct that the papers of this case be placed before Hon''ble the Chief Justice for constituting a larger Bench.

JUDGMENT OF THE DIVISION BENCH

D.S. Tewatia, J.

This recommended revision petition came up before me in the first instance. I referred it to a larger Bench and that is how it has been placed before us.

The short, but important, question that falls for determination in this case is as to whether a person accused of an offence u/s 9 of the Opium Act is, in law, entitled to require the Court trying the case to send an additional representative sample of the opium recovered from his possession to the Public Analyst, Calcutta, or for that matter, to the Public Analyst of any other state, for analysis and submit his report in his defence by way of rebuttal of the conclusions contained in the report of the Public Analyst submitted after analysis of the representative sample sent to it by the prosecution.

The facts relevant to the determination of the aforesaid question in this case are that 5 kilograms and 800 grams of opium was recovered from the possession of the petitioner. A representative sample out of the aforesaid bulk of opium was sent to the Chemical Examiner of the Punjab who opined that the substance sent to him was opium. The prosecuting Sub-Inspector closed the prosecution case on 7th February, 1973.

The petitioner examined one witness on 30th March, 1973 after having made a statement u/s 342, Criminal Procedure Code, and on the same date he moved an application requiring the Court to send an additional sample to the Public Analyst, Calcutta, for expert opinion. A decision of this Court reported in Surjit Singh v. The State of Punjab (1972) 74 P.L.R. 830 was pressed in support of the submission contained in the application.

The trial Court distinguished the said decision on the ground that that was a case in which four lots of opium were recovered from the possession of the accused and a sample taken out only from one lot was sent. The accused''s application for sending samples from the other three lots for opinion to the Public Analyst was considered reasonable and was allowed, but in the present case the opium in question was recovered in one lot and so that trial Court considered that the ratio of the said decision did not cover the facts of the present case.

The learned Sessions Judges, before whom a revision was preferred against the aforesaid order of the trial Court, took a different view and has recommended the setting aside of the trial Court''s order and for the granting of the application of the petitioner.

Mr. Karnail Singh Doad, learned Counsel for the petitioner, has placed reliance on the following three reported and one unreported decision of this Court :

Madan Lal v. The State of Punjab (1971) 73 P.L.R. 107.

Surjit Singh v. The State of Punjab (1972) 74 P.L.R. 830.

Inder Singh v. The State of Punjab

Criminal Revision No. 219-R of 1972 Babu Ram v. The State of Punjab decided on 17th March, 1977.

Sodhi, J, who decided Madan Lal''s case (supra), gave no reasons for his conclusion that the accused was entitled to have the right to ask the Court to send an additional representative sample of the substance recovered from him to Public Analyst of another state for opinion. The learned Judge, however, distinguished an earlier decision of this Court in Karnail Singh v. The State (1966) 68 P.L.R. 657 rendered by Shamshsr Bahadur, J. on the ground that in that case the accused petitioner had asked the Court to send the entire bulk of the substance recovered from him for analysis, while that was not the request of Madan Lal petitioner before him (Sodhi, J.) who merely wanted an additional representative sample of the substance recovered from him to be sent to the Public Analyst of another State for opinion.

Gujral, J. who decided Surjit Singh''s case, supra, merely followed the decision in Modem Lal''s case.

Suri, J. who decided Inder Singh''s case supra, besides following the aforesaid two decisions, reasoned that the report of the Public Analyst was not conclusive and that the accused had a right to lead defence to prove the incorrectness of the report of the Public Analyst relied upon by the prosecution. This he could do only by requiring the Court to send an additional representative sample of the substance recovered from him for the opinion of another Public Analyst.

Sharma, J. who decided Babu Ram''s case (supra) reasoned that a person accused of an offence had a right to produce any defence which he liked and, therefore, in a case like the one before him the accused had a right to have the sample of the opium alleged to have been recovered from his possession tested by the Public Analyst.

After giving careful consideration to the matter, with respect we find ourselves unable to accede to the view that a person accused of an offence u/s 9 of the Opium Act has any right to require the Court to send an additional representative sample of the substance recovered from his possession for opinion either to the Public Analyst, who had submitted his report on a representative sample sent to it by the prosecution, or to any other Public Analyst, on any abstract principle of the accused''s right to lead defence to rebut the evidence adduced against him by the prosecution, for, in our opinion, evidence of such experts whose reports are made admissible as piece of evidence u/s 510 of the Old Code and u/s 293 of the New Code, stands on a different footing. For instance, no accused person in a murder case has a right to ask the Court to preserve the dead body for second post-mortem by cither the very doctor who had conducted the post-mortem earlier at the request of the police, or by any other expert doctor of his choice, in an effort to use the report of the latter post-mortem for the purpose of rebuttal of the post-mortem report of the doctor who conducted the post-mortem at the request of the police.

In regard to the experts, whose reports have been made admissible in law as piece of evidence by the aforesaid provisions of the Criminal Procedure Code, the only right that the accused has is to request the Court to call the expert for cross-examination and then test his competency as an expert or to have any vagueness in the report, clarified. By doing so, the accused can create doubt in the competency of the Analyst or expose the vagueness of the report and thus erode the evidentiary value of the report or for that matter of the evidence of the expert. The accused also has a right to examine an expert witness of his choice to challenge the opinion expressed by the expert on whose report or testimony the prosecution relies on the basis of the facts found by him. He can also rebut the said opinion with the aid of authoritative text books. However, what is not open to an accused in such cases is to have the facts found again either by the same expert or by an other expert. Such a right docs not exist in abstract. In cases where the law-makers have felt the necessity of conferring such a right on an accused they have expressly provided therefore, as is the case in regard to the cases arising under the Prevention of Food Adulteration Act, where u/s 13, which is in the following terms, an express right has been conferred on an accused to have the other sample sent to the Director of the Central Food Laboratory, who is a superior authority and whose opinion has expressly rendered conclusive superseding the one expressed by the State Public Analyst :

23 (1) * * *

(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, (Health) authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address, and other particulars have been disclosed u/s 14-A, forward, in such manner as may be prescribed, copy of the report of the result of the analysis to such person or persons, as the case may be informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) authority analysed by the Central Food Laboratory.

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(3) The Certificate issued by the Director of the Central Food Laboratory under Sub-section (2B), shall supersede the report given by the Public Analyst under sub-section (1).

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No such right has been conferred by the Opium Act. In the absence of any such right being conferred on the accused under the Opium Act, the trial has to proceed against her in accordance with the provisions of the Criminal Procedure Code.

For the reasons stated, we find no merit in this revision petition and dismiss the same.

S.C. Mittal, J.

I agree.