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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.