Rajesh
Kumar and Anr Vs. State Govt. of NCT of Delhi [2008] Insc 287 (25 February
2008)
Dr.
Arijit Pasayat & P. Sathasivam
CRIMINAL
APPEAL NO. 380 OF 2008 (Arising out of SLP (Crl.) No.2214 of 2007) Dr. ARIJIT
PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the judgment of a learned Single Judge of the
Delhi High Court dismissing the revision petition filed by the appellants. By
the revision petition challenge was to the judgment of learned Additional
Sessions Judge, New
Delhi, upholding the
conviction and sentence imposed by the learned Metropolitan Magistrate.
3.
Background facts in a nutshell are as follows:
The
appellants were alleged to have been indulging in smuggling of liquor from Haryana
to Delhi. The prosecution alleged that upon
receipt of information, S.I. Lalit Mohan, alongwith certain police officials,
constituted a raiding party, assembled near a traffic intersection and on
8.4.1994 at about 1.45
A.M. intercepted a Tata
407 vehicle in which the appellants were travelling. Despite being signalled to
stop, the vehicle sped away. The police officials chased it, and stopped it and
apprehended the appellants. Eighteen cartons containing 12 bottles of
"Bonnie Scot" Special Malt Whisky, each being an 750 ml bottle, were
recovered. Two sample bottles were taken out separately as samples and (from
each carton i.e., 36 bottles). The heads of the samples bottles were enclosed
in White Pullanda and sealed with the letters "LMN". Form M-29 was
also filled. The seal was handed over to Head Constable Satpal Singh. An FIR
was lodged and a site plan was prepared. The appellants were arrayed as accused
and arrested. The Excise Control Laboratory opined that the samples submitted
tested positive as Whisky. The appellants were charged with having committed
offence under Section 61 of the Punjab Excise Act, 1914 (in short the 'Act').
They stood trial pleading not guilty.
4. The
prosecution examined three witnesses. All of them testified as to recovery of
the samples. The accused persons did not lead any evidence in their defence.
They however, denied the accusations through statements under Section 313 of
the Criminal Procedure Code, 1973 (in short the 'Cr.P.C.')
5. The
Metropolitan Magistrate i.e., the Trial Court by judgment and order dated 1.5.2001
found the appellants guilty and sentenced them to six months simple
imprisonment with fine of Rs.2,000/- and in default a further three months
simple imprisonment. The appeal preferred by the petitioners to the Additional
Sessions Judge was dismissed by order dated 22.2.2006.
6. The
only stand before the High Court was that there was delay in dispatch of the
sample and none was examined to prove the reports. The High Court found that
there was no substance in the plea. Referring to the evidence of SI PW3 and PW1
about the sealing and sending samples to the Excise Control Laboratory, it was
noted that the Form M-29 was filled up by PW 2 at the time of recovery. All the
prosecution witnesses have testified that the same was filled up by PW3.
The
seal after use was handed over to PW1. These were tallied with the specimen
seal of M29 when the Excise Control Laboratory sealed them. It was noted that
there was no necessity for examining any witness to prove the Excise Control
Laboratory report as documents were marked in terms of Section 293 Cr.P.C.
7.
Learned counsel for appellants reiterated the submissions made before the High
Court. Learned counsel for the respondent, on the other hand, supported the
judgment of the High Court. It is submitted that no question was put to either
PW1 or PW3 on the aspect of alleged delay in sending the samples.
8.
Section 293 Cr.P.C. reads as follows:
"293.
Reports_ of certain Government scientific experts.
(1)
Any document purporting to be a report under the hand of a Government
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 report.
(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 responsible 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 this behalf.
(4)
This section applies to the following Government scientific experts, namely:-
(a) any
Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the
Chief Controller 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.
(g) any
other Government Scientific Expert specified by notification by Central
Government for this purpose.]"
9. A
bare reading of sub-sections (1) and (2) of Section 293 shows that it is not
obligatory that an expert who furnishes his opinion on the scientific issue of
the chemical examination of substance, should be of necessity made to depose in
proceedings before Court. This aspect has been highlighted by this Court in Ukha
Kolhe v. The State of Maharashtra (AIR 1963 SC 1531) and Bhupinder
Singh v. State of Punjab (AIR 1988 SC 1011). Therefore,
there is no substance in the revision petition so far as the conviction is
concerned.
10.
Learned counsel for the appellants submitted that the appellants have already
suffered custody for more than three months, and the occurrence took place
nearly 13 years back.
It is
noted that there was no minimum sentence prescribed at the relevant point of
time. That being so, while upholding the conviction, we reduce the sentence to
the period already undergone. The prayer for exemption from surrendering was
accepted by order dated 12.4.2007.
11.
The appeal is disposed of accordingly.
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