State of Maharashtra vs Sadhusingh

B.A. Masodkar, J.—The State has appealed against the acquittal of accused Sadhusingh for an offence punishable u/s 66 (1) (b) of the Bombay Prohibition Act, 1949 (hereinafter called the Act). The learned Magistrate who tried the accused found that the prosecution evidence adduced in the case was insufficient to prove that the seized dabkis contained nothing but liquor. He also recorded a finding that the dahkis which were seized in the case were in the possession of the accused.

So, the narrow question is whether upon evidence it is possible to take a view that the prosecution has established that the content of the dabkis was prohibited liquor and, therefore, the accused was guilty of the offence punishable u/s 66 (1) (b). The possession of the dabkis cannot be seriously disputed. The only question is how the prosecution has proved that the dabkis contained the prohibited liquor.

The whole effort on the part of the prosecution to establish this must necessarily relate to the samples being taken from the dabkis and being forwarded for the purpose of analysis to find out the nature of the contents. P, W. 6 Hariomdatta stated that he had taken the property pertaining to this offence, i. e. two sealed bottles, to the Chemical Analyser at Bombay and had handed over the same on February 22, 1966. P. W. 5 Pundlik who appears to be the panch stated that samples were taken separately in two separate bottles and the bottles were sealed in his presence. The dabkis were opened in his presence and Exh. 8, which is the panchanama, was prepared to which he has subscribed. Panchanama, though not a substantive piece of evidence, is produced and proved properly and it states that two dabkis, which were sealed, were opened in the presence of the panchas and about 3 chhataks of liquor was taken out from the big dabki and similar quantity from another, and was put in bottles which were also sealed.

Exhibit 10, which document alone can establish the content of these two bottles, is relied upon by the prosecution to show that the sample sent through Hariomdatta contained the prohibited liquor. Exhibit 10 is of August 2, 1967, and is under the signature of Assistant Chemical Analyser to Government of Bombay. The report contains the following result:-

Sample Nos. (I) and (2) contain 18 and 17% v/v of ethyl alcohol respectively in water.

This report has been let in by the prosecution, but its validity as an admissible piece of evidence is seriously questioned before me by the learned Advocate appearing for the accused in this appeal. That contention, therefore, requires a consideration.

The learned counsel Shri Junanker argues that the Bombay Prohibition Act, 1949, is a special enactment dealing with the offences relating to prohibition. Even the rules of evidence, therefore, must be taken from that enactment as also the provisions relating to trial. The learned counsel refers to the provisions of sections 117 and 118 of the Act, for the purpose of pointing out the rules of procedure as are enacted by the Code of Criminal Procedure will not be applicable, if there is a provision made on the same topic by this special enactment. He, therefore, refers to me to the provisions of section 129-B of the Act and says that the documents mentioned in either of the sub clauses of section 129-B alone can be tendered in evidence. It is argued that if any document does not answer the requirements of section 129-B, then that cannot be read as a piece of evidence in a trial for offences under the Act.

To this the reply on behalf of the State that was submitted for my consideration was that the provisions of section 129-B are merely a mode of tendering evidence. That does not affect the rules of evidence as may be available in other enactments and particularly, in the Code of Criminal Procedure. The learned Assistant Government Pleader submits that Exh. 10 is referable and was so tendered in evidence under the provisions of section 510 of the Code of Criminal Procedure and the argument that it cannot be read because of section 129- B of the Act does not call for any consideration.

The controversy thus centres upon the piece of evidence which alone can being home the guilt in this case. For fortifying this submission the Assistant Government Pleader Mr. KEZ''I placed on record a notification of August 22, 1969, which is as follows:-

NOTIFICATION

Home Departments Sachivalaya, Bombay-22, BR, 22nd August 1969.

Code of Criminal Procedure, 1898.-

No. FSL. 2066/36753-XXII.

In supersession of Government Notification, Home Department, No. FSL. 1162/46141-VI, dated the 3rd October 1962, the Government of Maharashtra hereby appoints the below mentioned officers of the Forensic Science Laboratory, State of Maharashtra, Bombay, and the Regional Forensic Science Laboratory, Nagpur, as follows:-

(a) (i) the Director, Forensic Science Laboratory and Chemical Analyser to the Government of Maharashtra,

(ii) the Assistant Directors, and (iii) the Senior Analysts to be the Chemical Examiners; and

(b) (i) the Assistant Chemical Analysers to be the Assistant Chemical Examiners for the purpose of Sub-section (1) of Section 510 of the Code of Criminal Procedure, 1898 Vo1 1698).

By order and in the name of the Governor of Maharashtra.

Sd./- D. N. Shararao Under Secretary to Government.

Plainly, the present Notification cannot govern the trial which concluded on October 21, 1962. On that date not only the trial was over but acquittal was recorded. By putting before me the Notification of August 22, 1969, neither the evidence that was allowed on record can be said to have been properly admitted as legal evidence. It is conceded on behalf of the State that there was no such Notification on the date when this evidence was tendered nor on the date when the judgment of acquittal was recorded.

That being the position, it must be held that the Notification itself is not retrospective so as to make the evidence that was already tendered as admissible.

The case, therefore, will have to be decided on this basis that no such Notification appointing the Assistant Chemical Analysers to be the Assistant Chemical Examiners for the purpose of section 510 of the Code of Criminal Procedure, was available to the prosecution. If, therefore, the report Exh. 10 which is by the authority named as Assistant Chemical Analyser to Government, is neither covered by section 129-B (b) of the Act nor by the provisions of section 510 of the Criminal Procedure Code, then the conclusion would be that it was not legally admissible as it is plain from record that the said Assistant Chemical Analyser has neither been called as a witness nor the said document proved by any other mode that is available under the provisions of the Evidence Act.

The provisions of section 510 of the Criminal Procedure Code govern the reports made by the stated authorities in the body of sub-section (1) thereof. It is needless to notice that judicially the reports of any other authority have not been treated as available to the prosecution u/s 510. (See Bansilal v. Emperor AIR 1928 Bom. 241; Ahila Manaji and Another Vs. Emperor, ; Suleman v. Emperor AIR 1943 Bom. 445 and Moharilal v. Corporation of Calcutta A I R 1963 Cal. 561). It is thus settled that the authorities named are delegates of the section itself for the purpose of reading their reports as evidence in the trial held under the provisions of the Code of Criminal Procedure. The prosecution, therefore, cannot ask the Court to imply that the words used in sub-section (1) designating certain authorities are merely descriptive and whosoever may be carrying on the functions which will answer the office mentioned in the section must also be taken to be included in the body of that section. Such a construction is against the plain reading of subsection (1). It has named certain Examiners and also insisted upon that the thing or the matter must be duly submitted to the said authorities with a purpose of obtaining the report. All the requirements of that section must be fulfilled before any such document can be used as evidence in any enquiry, trial or other proceedings under the Code.

Exhibit 10 does not, therefore, answer that it is a report from Chemical Examiner or Assistant Chemical Examiner to Government relating to the contents of the dabkis that were found in the possession of the accused. The prosecution could have established the contents by any other mode as may be permissible under the provisions of the Evidence Act. That having not been done, Exh. 10 cannot furnish a good ground for interference with the order of acquittal made in this case.

The arguments advanced on behalf of the accused may briefly be considered that section 129-B of the Act is exhaustive in respect of tendering all evidence relating to the contents of a thing seized under the provisions of the Prohibition Act. Such a submission overlooks the efficiency of section 129-B itself. Some other provisions may therefore be noticed which throw light on the scheme of the Prohibition Act and the trial of offences under it.

The provisions of section 116 of the Act require the Magistrate to try the offences and follow the procedure prescribed by the Code of Criminal Procedure for the trial of summary cases. In other words, that provision is declaratory and if read along with the provisions of section 5 (2) of the Code of Criminal Procedure, it in terms applies the Code to the trial of offences against even this special law. The argument that only because sections 117 and 118 of the Act state that the Code of Criminal Procedure has to apply subject to the provisions of the Act, the applicability of section 510 of the Code of Criminal Procedure is ruled out, does not really warrant a serious consideration. The rules of evidence are very much procedural. The whole of the enactment of the Code of Criminal Procedure is meant not only for the purposes of trial but for the purpose of enquiry and investigation of the several offences to which the Code applies. The provisions of Chapter IX of the Prohibition Act lay down the powers and duties of officers and procedure. Section 116 deals with the procedure for trial. Section 117 deals with investigations, arrests, detentions in custody and searches to be made and that too are to be made according to the procedure prescribed by the Code of Criminal Procedure subject, however, wherever there is a different provision appearing in the I Prohibition Act. The operation of sections 116 and 117 is on two different fields. Section 118 makes the provisions of the Code of Criminal Procedure applicable with respect to cognizable offences to the offences under the Prohibition Act. It thus follows that none of these sections govern sub-section (2) of section 5 of the Code of Criminal Procedure, but merely explains to what extent the Code has to be applied.

It is well settled that the Legislature may enact several supplementary or complementary laws and an effort has to be made to find out all such provisions that may be applicable unless there is a clear intention to exclude any of the procedural laws enacted by the special statutes. It is plain that the trial against the offences enumerated under the provisions of the Act has to be governed by the Code of Criminal Procedure as well as by the provisions of the Evidence Act. Added to the procedure available in both these Acts to the extent it applies to the trial of offences, some further provision as to letting in of certain type of evidence has been enacted by the Legislature. Section 129B which is in two parts, i.e. 129B(a) and 129B(b), is merely an additional mode available to the prosecution to prove certain documents in the course of the trial under the Act. Section 129B(a) deals with certificates of registered practitioners or the Chemical Analyser or Assistant Chemical Analyser to Government u/s 129A or of an officer appointed under that section. That means it has something to do with the provisions of section 129A of the Act. Section 129B(b) takes in a report which may be tendered as evidence, made under the hand of any registered practitioner as defined by section 2 (38) of the Act. That might take in other offences under the Act inclusive of section 66(l)(b) of the Act. Only because section 129B(b) permits a report made by a registered medical practitioner to be read as legally admissible evidence, that does not follow that the report made on the said subject by the authority named u/s 510 of the Code of Criminal Procedure is excluded by the provisions of the Act.

In my view, the provisions of section 129B(b) of the Act are merely enabling, so also the provisions of section 510 of the Code. There is no conflict so as to exclude the operation of each of the modes enacted by these two sections. The prosecution may rely on the provisions of section 510 of the Code and submit the report by the authorities mentioned by that section or, because of section 129B(b) of the Act, may obtain such a report from the registered medical practitioner defined by the Prohibition Act u/s 2 (38) of the Act. After all, these are rules of evidence which do not affect any right of the accused in this regard and should be liberally construed so as to subserve the end that was in view of the Legislature. It is obviously clear that the purpose of allowing such reports to be tendered in evidence is to have a speedy trial without causing inconvenience to public authorities, unless it is expressly necessary to do so. If the construction as canvassed on behalf of the accused were to prevail, then the only report that can be let in under the Prohibition Act would be u/s 129B(b) and would render the provisions of section 510 of the Code nugatory. As I have already indicated above that such a construction should be avoided, which will paralyse certain provisions of the enactment or of the statute. Judicial interpretation must aim at consistency and apply the sound rules to find out whether both the provisions can co-exist.

To my mind, therefore, there is no contradiction or any conflict between section 510 of the Code or section 129B(b) of the Act and both can be resorted to by the prosecution for proving the offence punishable under the Prohibition Act. The objection raised on behalf of the accused, therefore, stands rejected.

However, as indicated above, both the provisions, i. e. section 129B(b) of the Act and section 510 of the Code, are not answered by Exh. 10 in the case. The authority which has made Exh. 10 is neither the authority indicated by section 510 of the Code nor is the authority indicated by section 129B(b) of the Act. The result is, it has to be held that Exh. 10 could not have been legally tendered nor could it be so read. If Exh. 10 is excluded, there is no evidence in this case to warrant any conviction against the accused and no useful purpose would be served by reopening the trial as the acquittal was recorded four years back.

Under the circumstances, therefore, no interference is called for in this appeal and it would stand rejected. If the accused be in jail, he is entitled to be set at liberty forthwith. The accused be released accordingly.