- (1.) PETITIONER Ratanlal was convicted under sec. 4/9 of the Opium Act by the learned Sub-Divisional Magistrate, Begun and was awarded a sentence of 1-1/2 years' rigorous imprisonment and a fine of Rs. 500/- ; in default of payment of fine to further undergo rigorous imprisonment for a period of four months. On appeal, the learned Sessions Judge, Partabgarh, by his judgment dated 22. 12. 1962 maintained the conviction of the petitioner, but reduced the sentence of imprisonment to three months and that of fine to Rs. 200/- and it was ordered that in default of payment of fine, petitioner shall undergo rigorous imprisonment for a month. It is against this judgment of the learned Sessions Judge that the present revision petition has been filed by the petitioner. When the revision petition of the petitioner came for admission before a Single Judge of this Court, it was ordered that a notice be issued to the petitioner why his sentence should not be enhanced. The notice for the enhancement of sentence was, therefore, issued and registered as D. B. Criminal Revision No. 276 of 1963. It is under these circumstances that these revision petitions have come before this Bench.
(2.) THE prosecution story, briefly stated, is as follows: On 21. 7. 1961, Kalian Khan, Constable was coming in a bus from Singoli to Begun. At village Turkari petitioner Ratanlal boarded the bus with a bedding and occupied a seat behind Kalian Khan, and he put his bedding near his seat. It is alleged that smell of opium was emitting out of the bedding. This created suspicion in the mind of Kalian Khan. At the Begun bus stop Kalian Khan made enquiries about the contents of the bedding from the petitioner and it is said that the petitioner admitted before him that he was carrying contraband opium in his bedding. Petitioner, was, thereupon brought along with the driver and conductor of the bus to the Police Station, Begun where a report (Ex. P. 4) was lodged by Kallah Khan. On a search being taken of the bedding, 4 seers and 1/2 chattak of opium was recovered from it. THE Station House Officer took out of it 2-1/2 tolas as a sample and sealed the same before the motbirs and the sample was sent to the Public Analyst through the Superintendent of Police, Chittorgarh. From the report of the Public Analyst (Ex. P. 6), it was found that the sample contained 2. 91 per cent of morphine. THE accused-petitioner was, therefore, challaned in the court of the Sub-Divisional Magistrate, Begun who convicted and sentenced the accused-petitioner as aforesaid. Mr. Dalpat Singh, appearing on behalf of the petitioner, has assailed the judgments of the two courts below on the following grounds: (1) The prosecution has failed to establish the conscious possession of the accused, as the bedding was not proved to be that of the petitioner. (2) The prosecution has miserably failed to prove that the article recovered from the bedding alleged to be that of the petitioner was opium because (a) it is not established that the sample examined by the Public Analyst was the same which was taken by the Station House Officer from the said bedding and (b) that the report was not put to the petitioner when he was examined under sec. 342 Criminal Procedure Code by the trial Magistrate. This piece of evidence cannot, therefore, be read against the petitioner. (3) The report of the Public Analyst Ex. P. 6 does not mention the test applied by him to arrive at the conclusion that the sample contained morphine and, therefore, the report is very meagre and cryptic and cannot have any probative value. As regards the first contention of the learned counsel, the fact that the petitioner boarded the bus with the bedding in which the alleged opium was recovered at the Police Station, Begun, is established beyond any manner of doubt by the prosecution by producing Abdul Sattar (P. W. 2), Kalian Khan (P. W. 3) and Chouthmal (P. W. 4 ). Both the courts below have placed reliance on their testimony. Learned counsel for the petitioner could not point out any infirmity in these statements and hence we do not find any reason to take a different view of this evidence. It may also be pointed out that this objection relates to a question of fact, which has been accepted by the two lower courts to have been established by the prosecution beyond any shadow of doubt, that the bedding containing the alleged opium belonged to Ratanlal petitioner. In this view of the matter, this contention has no force. As regards the second point, learned counsel has laid too much of stress on the fact that the prosecution has not proved that the sample examined by the public Analyst was the same which the Station House Officer had taken from the bedding of the petitioner and sealed on 21. 7. 1961. According to 1 earned counsel, the sample was sent to the office of the Superintendent of Police, Chittorgarh, from where it was sent to the Public Analyst, and unless it was established by evidence that the same sample, which was sealed by the Station House Officer, Begun was sent by the Superintendent of Police to the Public Analyst, the report of the Public Analyst (Ex. P. 6) cannot be connected with the article recovered from the possession of the petitioner. Mr. Raj Narain, on the other hand, has contended that the report Ex. P. 6 itself speaks that the sample was received by the Public Analyst by post parcel in a sealed condition, and that the seals were intact and unbroken, and, therefore, he urges that the sample that reached the hands of the Public Analyst was the same which was recovered from the possession of the petitioner. He has, however admitted that no question was put to the accused regarding the report of the Public Analyst, when the accused was examined under sec. 342 Criminal Procedure Code, but his contention is that this deficiency in the trial did not cause any prejudice to the petitioner. This contention of learned counsel for the petitioner that his case has been prejudiced by not putting the report of the Public Analyst Ex. P. 6 to the accused in his examination under sec. 342 Criminal Procedure Code has little force. His argument is that if a question had been put to him during his examination about the said report, he could have raised a plea that the report did not relate to the sample which was taken by the Station House Officer, Begun from the possession of the accused, and in support of that plea it was open for him to have led evidence to show that the said report was inadmissible in evidence. We find that the sample taken by the Station House Officer, Begun on 21. 7. 1961 from the bedding belonging to the accused was sealed by him and was sent to the Superintendent of Police, Chittorgarh to be forwarded to the Public Analyst for chemical examination. From the report (Ex. P. 6) it is; however, evident that the Public Analyst received that sample from the office of the Superintendent of Police, Chittorgarh with seals intact, but it was not mentioned in the report that the seals found on that sample were that of the Station House Officer, Begun or of the office of the Supdt. of Police. Mr. Dalpat Singh has urged that the sample might have been changed at the office of the Supdt. of Police, Chittorgarh by mistake or otherwise and a different sample could have been sent under his seals. This possibility cannot altogether be ruled out. It is for avoiding such a contingency that the law requires the prosecution to prove that the same sample with the seals intact reached the Public Analyst which was taken from the possession of the accused. Learned Deputy Government Advocate in this connection has drawn our attention to a letter on the file written by the Superintendent of Police, Chittorgarh on 25. 7. 1961 to the Public Analyst to show that the seals put on the sample by the Station House Officer, Begun were intact when it was despatched from Chittorgarh under registered post parcel, but we regret that we cannot take note of this letter as it has not been proved according to law. In the absence of any specific evidence to the effect that the sample of opium reached the Public analyst in its original condition and it was not tampered with during the process of transmission, it is difficult for us to accept the contention of the learned Deputy Government Advocate that the report of the Public Analyst (Ex. P/6) must be interpreted to mean that seals of the Station House Officer, Begun, were found intact when the sample reached the Public Analyst. This Court on various occasions has observed that it is necessary for the officer recovering the articles that he should immediately take steps to seal them, and evidence may be led by the prosecution that from the time the articles came in the possession of the Police up to the time they reached the Chemical Examiner, the seals put on such articles remained intact. (See : The State vs. Motia ILR (1953) 3 Raj. 655; Mst. Javitri Devi alias Shanti vs. State ILR. (1956) 6 Raj. 1027 and The State vs. Banwari ILR (1959) Raj. 107 ). Now the Supreme Court in a recent case of Ukha Kolhe vs. The State of Maharashtra (l), has laid down that it was incumbent on the prosecution to prove that the seals put on the sample remained intact till the sample reached the hands of the Chemical Examiner. In that case, Dr. Rote collected on 3rd April, 1961 in a phial the blood of the accused to be examined by the Chemical Examiner to find out its alcoholic contents and put his seal on that phial, but he delivered the phial to the Sub-Inspector of Police on 13th April, 1961 who in turn sent the same to the Chemical Examiner on 18th April, 1961. No evidence was, however, led by the prosecution to prove that the seal put by Dr. Rote was intact and the precautions were taken to ensure against the tampering with the contents of the phial when it was in the Civil Hospital and later on in the custody of the Police between 13th April to 18th April, 1961. The report of the Chemical Examiner mentioned that the sealed phial was received by him from the Police officer but it did not mention that the seal was the one which was put by Dr. Rote. In this context, their Lordships of the Supreme Court observed, as follows: "evidence regarding the dealing with the phial since it was sealed and it was submitted for examination of the Chemical Examiner may appear to be formal; but it has still to be led in a criminal case to discharge the burden which lay upon the prosecution. " No doubt, the evidence that the sample of the incriminating article reached the hands of the Chemical Examiner in the same condition in which it was taken by the Police Officer is formal, yet it cannot be dispensed with and in the absence of such an evidence, it is open to the accused to take a plea that the chemical examination report of the Public Analyst cannot be read against him to fasten the guilt on him. We would have called the Public Analyst in the witness box to show whether the seals of the Station House Officer were intact or not when he received the sample from the office of the Superintendent of Police, Chittorgarh, but looking to the nature of the offence and the time already spent in this case, we do not feel inclined to accept the prayer of the learned Deputy Government Advocate to examine the Public Analyst as a witness at this stage to remove this formal defect. As the report of the Public Analyst (Ex. P. 6) cannot be read in evidence against the accused on account of the defect referred to above, we are constrained to hold that the prosecution has failed to prove that the article recovered from the possession of the petitioner was opium. Since the case is being disposed of on this ground, we do not propose to deal with the other objection raised by learned counsel about the probative value of the report (Ex. P. 6 ). The revision petition of petitioner Ratanlal is, therefore, allowed. His conviction and Sentence under sec. 4/9 of the Opium Act are set aside and he is acquitted of the aforesaid charge. He is on bail and he need not surrender to it. In view of the decision of the revision application of petitioner Ratanlal, D. B. Criminal Revision No. 276 of 1963 is hereby dismissed. . ;