SHANTISWARUP Vs. STATE

JUDGEMENT

(1.) THIS is an application in revision on behalf of Shanti Swarup who has been convicted Under Section 60(a) of the U.P. Excise Act and has been sentenced to pay a fine of Rs. 500/ - with the direction that in default of payment of fine he will have to undergo rigorous imprisonment for three months. An appeal against that order was dismissed by the learned Sessions Judge.

(2.) THE main point urged on behalf of the applicant is that there is no proper evidence to establish that what was alleged to have been recovered from the possession of the applicant was Charas. According to the evidence relied upon by the learned Magistrate Sri. S.N. Gupta, the Chemical Examiner's report established that the sample of the article which had been recovered and was sent was found by the Chemical Examiner to be Charas. In the first instance it must be pointed out that the Chemical Examiner's report', apart from bearing no seal of the Chemical Examiner's Office and not being exhibited at the trial, was not even put to the applicant during the course of (sic) examination under Section 342 (sic) In these circumstances, it a(sic)s' that the report of the Chem(sic) Examiner should not have been (sic) into consideration at all. A(sic) this consideration there is the (sic)er difficulty that the evidence for establishing, that the sample of the article which was sent to the Chemical Examiner for analysis formed part of what was recovered from the possession of the applicant is not complete. The record discloses the fact, which finds. place in the judgment of the learned Magistrate himself, that on the 25th March, 1963, what was alleged to have been recovered from the possession of the applicant was brought from the Sadar Malkhana in a sealed packet and was opened by Sri. S.N. Gupta who himself separated part of the contents and sealed it by way of sample in a separate cover for the purposes of being sent to the Chemical Examiner for analysis. It is obvious that the trying magistrate had himself taken part in his executive capacity in the procedure which was undergone for obtaining the report of the Chemical Examiner. It is surprising that Sri. S.N. Gupta should have himself tried the case in his judicial capacity. It is well established that if a particular officer has taken part in his executive capacity in a procedure ultimately leading to the charge sheeting of an accused person, he should not himself sit and try such accused in his judicial capacity. In the present case Sri. S.N. Gupta would have been a proper witness in support of the prosecution case to establish that what was sent to the Chemical Examiner for analysis was part of the sealed packet containing what was alleged to have been recovered from the possession of the applicant. Even if there is evidence of some witness testifying to the part played by Sri. S.N. Gupta it is obvious that Sri S.N. Gupta was bound to accept that evidence as true. The judgment of the learned Magistrate, whilst referring to the Chemical Examiner's report states as follows:

(3.) I , accordingly, allow this revision and set aside the conviction and sentence awarded to the applicant. The fine, if already realised, must be refunded to the applicant.