Decided on June 25,1979



A.M.AHMADI - (1.) * * * *
(2.) The question then is whether the delay on the part of P. W. 6 Badharsing in forwarding the muddamal samples to the Chemical Analyser Baroda can be said to be so inordinate as to raise an inference or presu mption of the sample bottles having been tampered with during the 21 days they were in the custody of the said witness. The raid was carried out by P. S. I. Baish on 20th May 1976 and the sample bottles were delivered to Badharsing on the same day. They were in the custody of Badharsing upto 11th June 1976 on which day they were delivered to Police Constable Champabhai Tajabhai for being carried to the office of the Chemical Examiner Baroda for examination and report. P. W. 5. (Ghanshyam Ambalal Khambholja the Assistant Chemical Analyser received the bottles on the same day and he made a note regarding the physical condition of the bottles he deposed before the court that the seals were found intact with the slips bearing the signatures of the panch witnesses. These bottles were in his office till 17th June 1976 on which date the contents thereof were analysed and the reports Ex. 14 to 19 were prepared on the basis of the results of the tests. The prosecution has therefore examined all those witnesses who dealt with the said bottles from time to time till they were finally examined by the Chemical Examiner. The chain so far as the evidence in this connection is concerned is complete and it does not transpire from the evidence of all these witnesses that any foul play had taken place during the 21 days the bottles were in the custody of writer head Badharsing. Merely because there was a delay of about 21 days on the part of the writer head Badharsing in forwarding the bottles to the office of the Chemical Examiner Baroda an inference or presumption that the bottles may have been tampered with cannot be raised. No such inference or presumption arises under the statute. At best it can be said to be a rule of prudence or guidance bearing on the appreciation of prosecution evidence. It is merely a circumstance which the court must bear in mind and if the court comes to the conclusion on the totality of the evidence that the delay is so inordinate and unjustified that foul play could be the objective of the prosecution it may refuse to place reliance on the prosecution evidence. No hard and fast rule can however be laid down in this behalf and the contention of Mr. Thakkar that mere delay in forwarding the sample bottles is sufficient to create a doubt in the mind of the court cannot be entertained. It also transpires from the evidence of Police constable Champabhai that along with these bottles he was asked to carry muddamal articles concerning other cases to the Laboratory at Baroda. This would go to show that the practice was to collect the muddamal samples and after they were sufficient in number to forward them in one bulk to the Chemical Examiner at Baroda presumably as a measure of economy. Be that as it may as pointed out earlier no hard and fast rule can he laid down in this behalf and each case would have to be judged on its own facts. But that apart in the instant case the prosecution has led evidence to complete the chain and nothing has been brought out in cross-examination to doubt the bona fides of the prosecution. It must also be remembered that by the time the case come up for hearing before the learned trial Magistrate the investigating officer P. S. I. Baish was already transferred and was serving at Morwa. I am therefore not prepared to hold with the learned trial Magistrate that the delay is fatal to the prosecution.
(3.) Mr. Thakkar invited my attention to the observations of Bhagwati J. (as he then was) in Criminal Appeal No. 186/52 (STATE V. SOMAJI) decided on 2nd August 1962 It must immediately be pointed out that the observations are in the nature of obiter dicta and they run as under: "It is of the utmost importance that in prohibition cases where any liquor is alleged to have been seized such liquor must be sent as soon as possible to the Chemical Analyser for examination and that it should not be allowed to remain at the Police Station for an inordinate length of time." These observations do not lay down any general proposition that in all cases where there has been a delay in forwarding the sample to the Chemical Examiner an inference of foul play must necessarily arise. Reliance was however placed by MR. THAKKAR ON JETHAJI SUVAJI V. STATE OF GUJARAT (1966) 7 G.L.R. 927 in which the observations of Bhagwati J. in the aforesaid unreported decision were quoted with approval and it was observed that whenever there is a long delay the court expects the police officer to explain the same in the course of his evidence. In that case the delay was undoubtedly a long delay of 3 1/2 months and the prosecution had not given any explanation whatsoever to explain the delay. In addition the samples did not bear the signatures of independent persons such as panchas aforesaid unreported decision were quoted with approval and it was officer to explain the same in the course of his evidence. In that case the not given any explanation whatsoever to explain the delay. In addition the and that strengthened the suspicion which arose because of the inordinate delay in forwarding the bottles for analysis. It was in the facts of that particular case that the court came to the Conclusion that the delay gave rise to a reasonable suspicion or doubt that possibly the sample were tampered with while they were lying at the police station. Even this decision does not lay down any such hard and fast rule as was sought to be canvassed before me ky Mr. Thakar.;

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