S.C. Agarwal, J. - (1.) THIS revision under Section 397/401 of the Code of Criminal Procedure is directed against order dated 30/6/2011 passed by Additional Sessions Judge (Ex-Cadre), Court No. 1, Jalaun at Orai in Sessions Trial No. 212 of 2010, Stete v. Nainapati under Section 60 Excise Act and Sections 272 / 273 IPC, P.S. Konch, whereby application of the accused-revisionist for taking another sample from the case property and sending it to another expert was rejected.
(2.) THE revisionist is facing trial under Sections 272 / 273 IPC for possessing illicit liquor, which was found by the Public Analyst to be injurious to health and unfit for human consumption, as the sample was found containing urea. Learned counsel for the revisionist submitted that the report given by Public Analyst, Lucknow is not correct and the revisionist has a right of rebuttal of getting the sample of liquor analyzed by a higher authority i.e. Director, Central Food Laboratory, Kolkata or Chandigarh and learned Additional Sessions Judge committed illegality in rejecting the application on the ground that there is no such provision in the code of criminal procedure to enable the defence to get the sample analyzed. Learned counsel for the revisionist has placed reliance on Section 233 Cr.P.C. to show that the accused is entitled to adduce evidence in defence and right to adduce defence evidence includes right to get the sample reanalyzed from a competent Laboratory. In the alternative, the submission is that if the prosecution has a right to get the sample analyzed by Public Analyst, on the same analogy, the defence has also a right to get the sample analyzed by Director, Central Food Laboratory, as provided in the Prevention of Food Adulteration Act.
(3.) LEARNED A.G.A. supported the impugned order and submitted that there is no reason to doubt the report of Public Analyst and without any substantial cause, the sample cannot be sent to Central Food Laboratory and the provisions of the Prevention of Food Adulteration Act are not applicable in the instant case. To prove the allegation that sample of liquor was unfit for human consumption and injurious to health, the police and the prosecution relied upon the report of Public Analyst, to whom the sample of liquor was sent for analysis. If a right has been conferred on one party, there is no reason why the said right cannot be exercised by the adverse party. When on one hand, the report of Public Analyst is being used against the revisionist to prove that the sample was injurious to health and contained urea, the defence also has a right to get the another sample of the seized material sent to the Director, Central Food Laboratory for analysis. The case is at the stage of defence evidence. The defence evidence does not mean that only oral evidence is to be adduced. To get the sample analyzed by a Laboratory and producing the report of such analysis and examination of expert in evidence is also part of defence evidence. In these circumstances, even though, there is no provision in Cr.P.C. for sending the sample of liquor to Director, Central Food Laboratory, there is no bar either. The rights which are available to the prosecution are also available to the defence. Both the parties have to be treated equally. In these circumstances, the impugned order cannot be sustained and is liable to be set-aside. Revision is allowed. Impugned order dated 30.6.2011 is set-aside. The application of the revisionist for re-examination of the sample stands allowed. Learned Addl. Sessions Judge is directed to summon the case property in Court and in presence of both the parties, Court shall direct taking up of a proper representative sample, which shall be sealed with the seal of the Court and shall be sent to Director, Central Food Laboratory for analysis. For this purpose, all steps shall be taken and all fees shall be paid by the revisionist in accordance with law and the rules.;