BHASKARAN Vs. STATE
LAWS(KER)-1967-1-32
HIGH COURT OF KERALA
Decided on January 06,1967

BHASKARAN Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THE petitioner was convicted by the Sub-Magistrate, ponnani, in C. C. No. 875 of 1965 for the offence under S. 8 (1) (g) of the prohibition Act, 1950 and sentenced to undergo rigorous imprisonment for three months. THE charge against him was that on 18-8-1965 at 7. 00 a. m. he was found in possession of a mud pot containing three edangazhies of fermented wash fit for distillation of arrack. A sample of the content of the mud pot was sent for analysis and report to the chemical examiner to Government of Kerala. After analysis he sent a report dated 18-11-1965 stating that the sample of the liquid contained 15% by volume of ethyl alcohol. This report was marked in the trial court as Ext. P-2. THE finding of the trial court that the material found in the possession of the petitioner is an article for the manufacture of liquor depends only on the evidence furnished by Ex. P-2. THE petitioner's contention that Ext. P-2 does not give sufficient data and that it cannot be used in evidence against him was rejected by both the courts below.
(2.) IN support of the above contention, the petitioner's learned counsel relied on the decision in Suleman Usman Memon v. The State of Gujarat (AIR. 1961 Gujarat 120 ). This was a case which arose under the Bombay prohibition Act, 1949. The certificate issued by the chemical examiner in that case stated that the concentration of alcohol in the sample of blood taken from the accused was 0. 191 per cent. The learned judge in that case rejected the contention of the accused that certificate of the chemical examiner cannot be received in evidence without the chemical examiner being examined in court and made available for cross-examination by the opposite party. He, however, held that the opinion of the chemical examiner was merely a piece of evidence on the point regarding concentration of alcohol in the blood of the accused, that the report must disclose the factual data on which his opinion was based and the reasons in support of the same, and that reliance cannot be placed on the report for the purpose of convicting the accused, if it does not contain such data. The certificate of the chemical examiner was rejected on the ground that it showed only the percentage of alcohol in the blood of the accused and did not disclose the method adopted by him for the examination of the blood. S. 510 of the Criminal Procedure Code reads as follows: "any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, 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. " This section does not require the chemical examiner to state the method adopted by him for the examination or analysis of the matter, or the reasons in support of his opinion. These are matters left to the chemical examiner, and the Statute has prima facie placed reliance on him for the correctness of these things. Sub-section (2) of S. 510 contains a provision to test the correctness of the report by examining the chemical examiner in court. This may be done suo mote or on the application of the prosecution or the accused. That shows that the report may be used as evidence without the chemical examiner being examined in court. It is, therefore, difficult to accept the interpretation given to S. 510 of the Criminal Procedure Code by the high Court of Gujarat in the above case. The decision in Suleman Usman Memon v. The State of gujarat AIR. 1961 Gujarat 120 was referred to in a later decision of that Court in State of Gujarat v. Shantaben AIR. 1964 Gujarat 136. This case arose under the Prevention of Food Adulteration Act, 1954. Dealing with the admissibility of a report made by a Public Analyst under S. 13 of this Act, which is analogous to S. 510 of the Criminal Procedure Code, the learned judge stated as follows: "what is made evidence under S. 13 of the Prevention of Food Adulteration Act and S. 510 of the Criminal Procedure Code, is a document purporting to be a report upon any matter or thing duly submitted for examination or analysis. The report contains the result of the examination or analysis and doss not contain any opinion. Opinion is not made evidence under s. 510 Cr. P. C. or under S. 13 of the Prevention of Food Adulteration Act. The result of the examination or analysis is factual and does not consist of any opinion. It has its value because the Chemical analyser and Public Analyst are qualified to make the examination or analysis of the articles submitted to them for examination or analysis. If the chemical analyser examines an article submitted to him and makes a report that that article contains one per cent of arsenic, there is no reason to reject that evidence, even if no reasons are given. " I respectfully agree with the view expressed above. It shows that the learned judge did not accept the proposition laid down in suleman Usman Memon v. The State of Gujarat AIR. 1961 Gujarat 120, to the effect that the report of a chemical examiner cannot be accepted in evidence unless it gives the data on which the opinion was based and the reasons in support of the same.
(3.) THE learned counsel for the petitioner relied also on two decisions of the Allahabad High Court in support of his contention Din dayal v. State AIR. 1956 All. 520 and State v. Sahati Ram and another AIR. 1958 all 34. Both these cases arose under the U. P. Pure Food Act, 1950, which is a statute similar to the Prevention of Food Adulteration Act, 1954. THEse decisions held that S. 10 of the U. P. Pure Food Act was similar to S. 510 of the code of Criminal Procedure, and that a certificate issued by a Public Analyst under S. 10 of the U. P. Pure Food Act could not be used as evidence of the fact that the article sent for analysis was adulterated, unless the certificate gave the data of the quantitative analysis or the public analyst was examined in court. THE above view of the Allahabad High Court does not seem to have been accepted by a later Division Bench of that Court in Municipal Board, Faizabad v. Lal Chand Surajmal and another AIR. 1964 Allahabad 199. This case arose under the Prevention of Food Adulteration Act, 1954. THE above-said two decisions of the Allahabad High Court were not referred to in this case. But their Lordships categorically held that the report delivered by a Public analyst under S. 13 of the Prevention of Food Adulteration Act is admissible in evidence, without examining the Public Analyst, and can be acted upon as evidence of what is stated therein. This decision has been followed by our High court in Food Inspector, Cannanore Municipality v. P. Kannan AIR. 1966 Kerala 70. This court had occasion to consider this question in several other cases also. In Arumugham Chettiar v. Food Inspector, Mattancherry Municipality, 1961 klt. 735 a learned Single Judge of this Court held in a case, which arose under the Prevention of Food Adulteration Act, 1954, that it was not necessary for the Public Analyst to give the quantitative make up of the article examined by him, and that a report delivered by him under S. 13 of the Act was evidence of the result of the analysis stated therein. THE same learned judge took an apparently different view in City Corporation of Trivandrum v. Antony 1962 KLT. 95. A Division Bench of this Court in City Corporation of Trivandrum v. T. R. Reddiar 1962 KLT. 199 also expressed the view that a report made by the Public analyst which only expressed his opinion but did not contain the data on which the same was based cannot be acted upon. This question again arose for consideration before another Division Bench of this Court in In re Abdul Azeeze 1963 KLT. 698. THE report delivered by the Public Analyst in that case was similar in nature to the one concerned in the case under consideration. THE decision in City Corporation of Trivandrum v. T. R. Reddiar 1962 KLT. 199 was explained away by the learned judges constituting this Bench, stating that it was no authority for the proposition that a report is not valid unless it shows the result of examination conducted by the Public Analyst. It was held in this case that, where the question was whether a prohibited coaltar dye was used in an article of food, the report need not contain the technical process by which the presence of the dye was identified. Reference may also be made to the decisions in Usman and another v. Food Inspector, Kozhikode Corporation 1965 KLT. 170 and state of Kerala v. Ramakrishnan Nair, 1965 KLT. 402 wherein it has been held that a report given by a Public Analyst can be accepted in evidence, even though h does not contain the mode of examination conducted by the Public analyst, or the procedure adopted by him in working out the result. THE proposition that a certificate issued by the Public Analyst under S. 13 of the prevention of Food Adulteration Act, 1954 can be admitted in evidence and acted upon by the Court without examining the Public Analyst, and that it is not necessary that the certificate should contain the tests conducted by the analyst or the method adopted by him in arriving at the result has been accepted by these two decisions. THE reasoning adopted in these two decisions apply to the interpretation of S. 510 of the Criminal Procedure Code; and there can be no doubt that a certificate issued by the chemical examiner is admissible in evidence without his being examined in court. The question whether a report made by a chemical examiner can be accepted in evidence and acted upon, unless it contains the data and the reasons for the conclusion arose in State v. Ramsingh Desasingh air. 1963 Bom. 68. The Division Bench of the Bombay High Court which decided this case dissented from the view taken by the Gujarat High Court in Suleman usman Memon v. The State of Gujarat (AIR. 1961 Gujarat 120 ). and held that a certificate issued by a chemical examiner was admissible in evidence without the chemical examiner being examined in court. In Madan Lal Arora v. The State (AIR. 1961 Cal. 240), a Division Bench of the Calcutta High Court held that it was not necessary to examine the chemical examiner in court for the purpose of acting upon a report made by him under S. 510 of the Code of Criminal Procedure. The High Court of Orissa has also taken the same view with regard to S. 510 of the Criminal Procedure Code in State of Orissa v. Kaushalya Dei (AIR. 1965 orissa 38 ). A similar view was expressed by the same High Court in The State v. Uma Charan Ram (AIR. 1966 Orissa 81) with regard to a report given by the public Analyst under S. 13 of the Prevention of Food Adulteration Act. Reference may also be made to the decision of the Mysore High Court in Mahadevayya veerabhadrayya Hiremath v. The State of Mysore (AIR. 1966 Mysore 75), wherein it is stated that a court cannot refuse to consider the evidence furnished by the certificate of the Chemical Examiner issued under the Mysore Prohibition act, merely because it does not mention the data on the basis of which the chemical examiner arrived at the percentage of the alcohol mentioned in the certificate or because no reasons are given for this conclusion.;


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