MADAN GOPAL Vs. STATE

JUDGEMENT

(1.) I have heard learned Counsel for the applicant on this revision in great detail and I find that there is no reason to interfere with the judgment of the appellate Court. The main point urged on behalf of the applicant was that in this case an error of procedure was committed in not examining as a witness the Excise Inspector who proved that the contents of the bottles recovered from the applicant was country liquor. The Excise Inspector came more or less as an expert witness to prove the result of his examination of the contents of the bottles. Instead of being examined in Court his evidence was taken on affidavit under Section 510A Code of Criminal Procedure. It appears to me, that if Section 510A Code of Criminal Procedure is interpreted, keeping in view the next preceding Section 510 Code of Criminal Procedure, it cannot be held that the lower Courts were wrong in treating this Excise Inspector as a witness of a formal character, expert witnesses like a Chemical Examiner, Assistant Chemical Examiner, Chief Inspector of Explosives, Director of Finger Prints Bureau or Officer of a mint are under Section 510 Code of Criminal Procedure ordinarily exempted from being called as witnesses and their reports themselves have been made admissible in evidence. The Excise Inspector, in examining and giving his report as to the contents of the bottles, was discharging functions which were very similar to that of the Chemical Examiner and If in these circumstances, the Courts held that under Section 510A his evidence could be taken on affidavit, it cannot be said that any irregularity was committed. There is the further circumstance that the record indicates that the Excise Inspector did in fact come before this very Court on a date on which this case was actually going on before him and swore mis affidavit in open Court. Immediately thereafter the other witnesses were examined in the case. The affidavit sworn by the Excise Inspector was actually put on the record as evidence of PW 4 and then PWs 5 and 6 were examined In the circumstances, the applicant and his counsel were fully aware of the fact that the evidence of the Excise Inspector was being taken on affidavit, instead of examining him in Court, arid yet, no prayer at all was made on behalf of the applicant that the Excise Inspector may be examined in Court or permitted to be cross examined under Sub -section (2) of Section 510A Code of Criminal Procedure. It seems that the applicant deliberately retrained from raising an objection at the appropriate stage, when it could have been met by actually giving the applicant an opportunity to cross -examine that witness in the hope that he would later be able to challenge the validity of the proceedings on this ground if he was convicted. Even in the appellate Court, it is significant that on behalf of the applicants though a grievance was made that the prosecution had not examined that Excise Inspector as a witness and had taken his evidence on affidavit, no request was put before the appellate Court to take additional evidence, summon that witness and then enable to the applicant to cross -examine that witness. In fact, even in this Court the attempt has been to challenge the validity of the proceedings rather than to actually obtain the benefit of cross -examining the witness. Clearly, this happened because the applicant had no question to ask from that witness and merely decided to take advantage of what, according to him, was a technical irregularity or illegality. On such a ground, in any case, this Court would not interfere in exercise of its revisional powers.

(2.) TWO other points that were urged by the learned Counsel were that in this case the investigation of the case was made by an officer not legally empowered to do so under Section 49 of the Excise Act and that the complaint had been made in Court by an officer not empowered to do so under Section 70(1)(a) of the Excise Act. Both these points have to be decided against the applicant in view of a Division Bench decision of this Court in State v. Tilloo (1) ( : AIR. 1957 All. 654). Further, so far as the question of investigation is concerned, even if it be held that an irregularity was committed in entrusting the investigation to an officer who was below the rank of an officer in charge of a police Station, that irregularity would not justify interference in this revision, as no consequent failure of justice has been pointed out and the provisions of Section 537(a) Code of Criminal Procedure stand in the way of any such interference at this stage. So far as the filing of the complaint is concerned, this objection was not taken in the trial Court or the first appellate Court. No doubt, the charge sheet was sent to Court and was signed by a Sub Inspector Other than an officer in charge of a police station; but it was also endorsed, by two other officers, and if this point had been taken in those Courts the question should have been investigated whether either of those two officers also satisfied the requirements of an officer who could make a report to the Court under Section 70(1)(a) of the Excise Act. For these reasons, these grounds also have no force.

(3.) MERE fact that there was mention of evidence of a defence witness any one of the grounds of appeal did not necessarily cast any duty on the appellate Court to deal with the evidence of that witness. There has been no error at all. The conviction and sentence are justified. The revision is dismissed.