- (1.) THE petitioners have prayed in this petition under section 482 of the Code of Criminal Procedure for quashing the order impugned dated 5.1.2006 passed by the 1st Additional Sessions Judge, Deoghar in T.R. Case NO.4 of 1997 whereby and where under the learned court below allowed the prosecution to prove report of the Chemical Examiner of the Excise Department and it was proved Ext. 6 in absence of its author.
(2.) THE brief fact of the case is that on tip -off when the Officer -in -charge, Deoghar Town police raided the house of the petitioner Suresh Singh and his brothers on 17.5.1995 he witnessed Suresh Singh and his brothers engaged in sale and purchase d Ganja (Hemp) with other 6 -7 accused persons in a ,room and that Suresh Singh and other accused were found making small packets of Hemp who at the sight of the police party began to flee but out of them, five could be apprehended at the spot. However, two of them made their good escape. Out of five apprehended two are the petitioners herein and 3rd petitioner is amongst the escaped two accused who was later on arrested. In course of search of their house, several small packets of Hemp consisting of 20 grams, 10 grams and 5 grams with weighting articles were recovered in presence of independent witnesses and seizure list was prepared. No document was produced in respect of the possession or sale of seized Hemp. It was further alleged that in the year 1990 also the petitioner, Suresh Singh with six others had been arrested with Hemp in connection with Deoghar P.S. Case No. 191 of 1990 in which charge sheet was submitted against him after investigation. The police on such recovery of alleged narcotic registered Deoghar P.S. case no. 90 of 1995. against the arrested 5 accused persons for the offence under section 21 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned counsel appearing for the petitioners submitted that in the present case only four witnesses were produced and examined on behalf of the prosecution and out of them three were unfavourable to the prosecution including the seizure witnesses of the alleged seizure of hemp. He further added that in spite of repeated summons to the Chemical Examiner of the Excise Department, Government of Bihar, he did not chose to appear in the witness box and his report sent vide letter no. 722 dated 3.7.1995 was proved by the prosecution and marked as Ext. 6 in the trial court below in spite of the repeated objection made on behalf of the defence. The learned counsel pointed out that report of the Chemical Examiner of the Excise Department was incomplete and hence it was not admissible and it did not come within the purview of Section 293 of the Code of Criminal Procedure so as to prove in absence of its author and therefore, serious prejudice was caused to the petitioners.
(3.) I have gone through the impugned order dated 5.1.2006 passed by the 1 st Additional Sessions Judge, Deoghar in T.R. Case No. 4 of 1997 and found that the learned court below has meticulously dealt with the provision of Section 293 of the Code of Criminal Procedure and has given his finding as hereunder: - "I have considered the rival submissions and perused the record. Accordingly to Section 293 Cr.P.C. 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, if court may think to summon and examine the mains. In this case report was submitted by chemical examiner which according to Section 293(4)(a) is admissible. Therefore, considering submission of both the parties and provision of Section 293 of Cr.P.C. report is exhibited as Ext. 6 put up on 9.1.2006 for recording additional statement under section 313 Cr.P.C.;