Full Judgment Text
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CASE NO.:
Appeal (crl.) 380 of 2008
PETITIONER:
Rajesh Kumar and Anr
RESPONDENT:
State Govt. of NCT of Delhi
DATE OF JUDGMENT: 25/02/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
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.’)
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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;
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(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.