STATE OF GUJARAT Vs. LASANMAL MANUMAL

JUDGEMENT

(1.) * * * *

(2.) It was next contended by Mr. Baxi that the Chemical Analysers certificate was not admissible in evidence inasmuch as the Assistant Chemical Analyser who has signed the certificate is not the Assistant Chemical Analyser to the Government of Gujarat. Relying upon our judgment in Criminal Appeal No. 424 of 1961 decided on 19th June 1962 where we considered the provisions of sec. 510 of the Code of Criminal Procedure Mr. Baxi argued that the Chemical Analyser or the Assistant Chemical Analyser whose certificate is made admissible under sec. 510 Cr. P. C. must be a Chemical Analyser or an Assistant Chemical Analyser to the Government of the State where the prosecution is launched and therefore the Assistant Chemical Analyser who has signed the certificate in this case being the Assistant Chemical Analyser attached to the State of Maharashtra the certificate was not admissible. Now the raid and the seizure of the bottles in this case took place on January 27 1960 The certificate of the Assistant Chemical Analyser is dated March 22 1960 The first respondent was arrested on May 11 1960 and the chargesheet was submitted in this case on May 27 1960 Relying upon these dates Mr. Baxi contended that the prosecution in this case can be said to have been launched on the date when the charge-sheet was submitted i. e. May 27 1960 or in any event on May 11 1960 when the offence was registered. He contended that that being the position the prosecution must be held to have been launched in the State of Gujarat and therefore any certificate by the Chemical Analyser or an Assistant Chemical Analyser to the Government of the State of Maharashtra cannot be said to be admissible under sec. 510 of the Code. In our view this contention is not correct. The prosecution can be said to have been launched on the date when the relevant Police Officer takes cognizance of the offence on information received by him. It is not correct to say that the prosecution commences only on the date when a complaint is filed in a Court of law. It is true that prosecution means alleging a person of some offence before a judicial authority; but that is not the only meaning of the word prosecution. The prosecution means a proceeding whereby criminal law is set in motion against a person in respect of some offence. Therefore the raid by the police officer of the first respondents shop and the seizure of the bottles from that shop were acts or proceedings whereby criminal law was set in motion As observed in Salmond on Torts 12 Edition page 691 in a suit for malicious prosecution the defendant must be the person who sets the law in motion against the plaintiff and it would not be necessary that he should be a party to the proceedings. Thus an action for malicious abuse of process will lie against a solicitor who in his clients name as set the law in motion against a plaintiff. It is not therefore always necessary for a prosecution to commence that a complaint must have been lodged before a judicial authority. When the police officer raided the first respondents shop and seized the bottles his acts in effect constituted a proceeding in reference to which the P. S. I. took various steps Therefore the prosecution must be said to have commenced for January 27 1960 That proceeding was pending on the May 1 1960 when the Bombay Reorganisation Act 1960 came into force by virtue of sec. 92 of that Act that proceeding came to be transferred to the new State. Consequently all that was done in that proceeding till then must be held to have been done with and under valid authority. Mr. Baxi however contended that the proceeding contemplated by sec. 92 must either mean a suit or a case or an appeal and that the acts of the P. S. I. on January 27 1960 cannot fall under any one of these three categories. Sub-sec. (3) of sec. 92 however provides that for the purposes of sec. 92 proceeding includes any case suit or appeal. The definition set out in sub-sec. (3) of sec. 93 is an inclusive definition. In any event the word case has a wider connotation than the words suit or appeal. Under sub-sec. (1) of sec. 92 every proceeding pending immediately before the appointed day before a Court (other than a High Court) tribunal authority or officer in any area which on that day falls within the State of Maharashtra shall if it is a proceeding relating exclusively to the transferred territory stand transferred to the corresponding Court tribunal authority or officer in the State of Gujarat. It is clear from these provisions that the proceeding which commenced on January 27 1960 in reference to which P. S. I. Patel took various steps viz. raiding the first respondents shop seizing the bottles sending sample bottles to the Chemical Analyser for his analysis etc. amounted to a case within the meaning of sub sec. (3) which stood transferred to the corresponding officer of the State of Gujarat on bifurcation. The Assistant Chemical Analyser who on a requisition made by P. S. I. Patel analysed the sample bottles and made his report was an officer competent to make the report as he was an officer attached to the Government of the State of Bombay as it then was within whose territory the proceeding commenced on January 27 1960 It was within the territory of the State of Bombay as it then was in which the prosecution was launched and therefore the report of such a Chemical Analyser though he became attached to the Government of the State of Maharashtra after bifurcation was admissible under section 510 of the Code of Criminal Procedure.

(3.) The last contention urged by Mr. Baxi was that the certificate Ex. 2 does not contain any reasons for the conclusion set out therein; nor does it refer to any of the tests carried out by the Assistant Chemical Analyser; nor does it give any factual data as to the analysis made by the Assistant Chemical Analyser and therefore no probative value can be given to it and the burden of proof to establish that the contents of the sample bottles were prohibited liquor being exclusively upon the prosecution if no probative value is attached to the certificate then in that event the prosecution can be said to have failed to prove its case against the first respondent. In support of this contention Mr. Baxi relied upon the decision of Bhagwati J. in Suleman Usman Memon v. The State of Gujarat 2 G. L. R. 402. That decision has since then been considered on two occasions viz. in Criminal Appeal No. 49 of 1961 decided on October 30 1961 and Criminal Appeal No 407 of 1961 decided on February 27 1962 and also by my brother Divan in Criminal Revision Application No. 544 of 1961 decided on May 3 1962 Three principles emerge from these decisions viz.:-