9911796707
TMI Blog1994 (1) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... d as the defence witness) and in company of other two Police Constables, viz., Vijay Chetram Patil (P.W.-2, Esh.-8) and Balvant Arjan and Ganpat Badalsing (not examined) proceeded to the said 'Dhabuwali Gali' for raid and reached there at 20-00 p.m. On seeing the raiding party approaching, one person started running who was immediately chased and caught on the spot. On interrogation in the presence of Panchas, he disclosed his name as Annu @ Mahmad Hanif Shaikh Ibrahim. Thereafter, on taking search of his person, from the back-side pocket of his pant, a small pouch was taken out which contained about 10 grams of 'Charas' and while searching the other pocket currency notes of Rs. 4/- were recovered. These muddamal articles were thereafter seized in the presence of two panchas and were wrapped up in a packet. The same thereafter was affixed with two slips containing signatures of panchas and was sealed by applying wax-seal bearing mark PSI-JPB . After the search and seizure formality was over, the accused was arrested and a Complaint Exh. 10 was filed by P.S.I.-Barad against him on the very day at 21-45 hours, before P.S.I, (name not legible) Athwa Line Police Statio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court render in case of (i) Sulemcm Usman Memon v. State of Gujarat, reported in AIR1961Guj120 , and (ii) State of Gujarat v. Lasanmal Manumal Am., reported in (1963)GLR270 . On the basis of these submissions, Mr. Saiyed finally urged that once the report Exh. 12 of the Public Analyst stands discarded on the ground of having no probative value, the whole prosecution edifice like a pack of cards crumbles, warranting immediate acquittal and release of the appellant. 6. Mr. K.V. Shelat, the learned A.P.P., as against the above submitted that Exh. 12 report of the Public Analyst cannot be doubted or disputed merely because it has been challenged on the ground that it did not disclose full and complete data on the test and experiments performed by him ! The learned A.P.P. further submitted that at no stage, the appellant has challenged or disputed the report of the Public Analyst (Exh. 12) which in unmistakable terms opined that the muddamal sample was 'Charas'. The learned A.P.P. further submitted that if at all the appellant wanted to dispute and thereby challenge the report at Exh. 12, nothing prevented him from taking up the contention at the earliest and cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd complete, disclosing the scientific tests or experiments performed by the Public Analyst. Except the bare opinion and assertion that the muddamal article was Charas there is indeed nothing on the basis of which this Court can independently test and assess the truthfulness and genuineness of the said Public Analyst's Report Exh. 12. In such serious cases under the Narcotic Act, where rightly the Legislature has prescribed stringent punishment of R.I. for not less than 10 years which may as well extend to 20 years and also liable to fine which shall not be less than one lakh rupees, and the same may also as well extend to two lakh rupees, if on the one hand bald assertions of the Complainant-Police Officer and thereafter the F.S.L. report which indicates jumping to the conclusion rather than any analysis is to be mechanically accepted, without testing the same, it would be simply hazardous and risky to convict and sentence the accused on such laconic evidence. We are quite conscious of the fact that the Narcotic offences like most contiguous deadly disease, is fast spreading in our society. It is not less deadly than the dreaded disease like Cancer and AIDS, and therefore, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... muddamal sample, he must specifically mention the scientific tests conducted and the results derived therefrom. If by chance in hurry or haste or through oversight, the scientific tests are not mentioned in the report, that is fatal to the prosecution as any ipse-dixit way of reporting cannot be accepted in criminal trial as it has no probative evidentiary value in the eye of Law ! Thirdly, even after carefully discharging the aforesaid two duties, the Public Analyst has further still to discharge one more duty, viz., to send the report of his analysis to the Investigating Agency under its official seal. It is precisely upon the careful discharge of the aforesaid two duties that the fate of the accused on the one hand and that of the prosecution on the other depends, and in a given case, any slip either at the end of the Investigating Agency while seizing and sealing the sample or at the end of public Analyst while receiving and analysing the same is committed, the same can prove fatal to the prosecution. Further, the Public Analyst cannot afford to forget that he was sending his opinion report to be used in a criminal trial which brooks no negligence or doubt ! Any remissness, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re irrelevant and the witnesses must deposed to only those facts of which they have personal knowledge, i.e., what they themselves saw or heard or persived 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, eg, when the question involved is beyond the range of common experience or common knowledge or when special study or 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 act, or as to identity of hand writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not make certain observations in the matter of care and circumspection to be observed by the Investigating Agency and the Public Analyst while seizing, sealing and dispatching the muddamal article to the Public Analyst and the Public Analyst in his turn preparing the report. In this case, the appellant has been given benefit of acquittal simply because of the patent remissness on the part of the Public Analyst while submitting his report! This does not necessarily mean that either the P.S.I, who seized and sealed the muddamal 'Charas in presence of Panchas, and the Public Analyst who examined and opined the same as a Charas are necessarily false ! It is only because of the technical miss on behalf of the Public Analyst viz., of not mentioning data of the scientific tests/experiments, etc., that this Court has no alternative but to resolve the lingering doubt in favour of the accused. Under such circumstances, it appears to us that when the Legislature with its utmost anxiety, with a view to protect the youth of our country from the ruinous influence of drugs has come out with a special Act, viz.. Narcotic Drugs Psychotropic Substances Act, 1985 with stringent punishment, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be observed. No doubt, the Law is a powerful weapon for ushering in the better socio-political and economic revolution by regulating, controlling and eradicating the prevailing ailments from which the Society suffers. However, its reformatory and revolutionary efficacy and the resultant impact ultimately depends upon the dedication to duty of the concerned authority to which its enforcement is entrusted. Just like a delicate sophisticated instrument, the Law also requires expertise knowledge of handling the same. If that expertise knowledge is not imparted, howsoever costly and sophisticated the instrument in question may be, that will not be of any assistance and likewise also, howsoever the lofty the ideals and the object of the particular Act may be, the same shall remain a lifeless show-piece, sometimes getting misfired also ! On the one hand to have such an important highly beneficial legislation and at the same time , on the other hand, not to have trained Law Enforcing Machinery to implement the same, is something like heart full of dreams, resolutions and resolves but the hands and feet falling short to make good the same. Once the legislature passes any Special Act the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chivalaya, Gandhinagar, (ii) The Director General of Police, Gujarat State, Ahmedabad, and (iii) Head of Department of the concerned Officer of Public Analyst, for information and necessary action. And thirdly, in matter of every Special Act like Narcotics Act, at some regular intervals stock of the situation should be taken, that is to say as to out of total, how many Narcotic prosecution cases, the prosecution was successful and in how many it failed and on what grounds. On the basis of constant monitoring like this, what future course for action should be charted out to secure better results, should be the anxiety of the higher ups in the State administration. 11. Incidentally, it is also further required to be observed that in all cases under the Narcotics Act when Investigating Agency depatches the muddamal articles to Forensic Science Laboratory for obtaining its report, in its forwarding letter the name of muddamal sample is also described. For example, in the present case, muddamal was named as 'Charas'. In our opinion this practice of naming or describing the muddamal substance in advance, as far as possible, should be refrained from. The reason is that these da ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
