PUBLIC PROSECUTOR Vs. CHALAMAIAH

JUDGEMENT

(1.) The point involved in both these appeals is the same. It relates to the interpretation of Sec. 510 Cr. P. C. Both the accused who are the respondents in these two appeals were convicted under Sec. 4 (1) (a) and Sec. 4 (1) (g) of the Madras Prohibition Act (X of 1937) and sentenced to two months and four months rigorous imprisonment respectively by the trial Magistrate. The case against each of the accused was that on the 25th of October 1954 they were found in possession of liquor and also some substance which on chemical analysis was found to be fermented wash and were therefore charged under Sec. 4 (1) (a) and Sec. 4 (1) (g) of the Madras Prohibition Act. The trial court found both the accused guilty as charged and sentenced them as mentioned above. On appeal, the S. D. M. of Bandar while confirming the conviction of each of the accused under Sec. 4 (1) (a) acquitted both of them under Sec. 4 (1)(g) on the ground that the report of the Chemical Examiner, which was relied on for the prosecution to prove that the material recovered from the accused was fermented, was not evidence for the reason that he was not examined in court to prove the report. The Public Prosecutor has preferred these two appeals against the acquittal of each of the accused impugning the view of the S. D. M. as regards the admissibility of the Chemical Examiner's report. In support of these appeals, it is urged by Mr. Bhimaraju for the Public Prosecutor that the S. D. M. erred in thinking that the report of the Chemical Examiner was inadmissible for the reasons that the report was not that of a Chemical Examiner to the Government of Andhra and that even otherwise it could not fall within the operation of Sec. 510 Cr. P. C.

(2.) On the other hand, Mr. Satyanarayana besides trying to sustain the judgment on the reasons mentioned by the appellate court propounded also another proposition that such a report is hit at by Sec. 162 Gr. P. G. and consequently inadmissible in evidence. The first question, therefore, to be considered is whether the report sub- mitted was by the Chemical Examiner to the Government of Andhra to come within the purview of Sec. 510 of the Cr. P. G. This depends on whether the signatory to this document was appointed by the Government of Andhra to fulfil the functions of a Chemical Examiner. That this was done appears from the G. O. published in the Andhra Gazette of January 26th, 1955, Part I, page 98. The relevant notification is as follows : Competent Authority to exercise functions under section 56, Andhra State Act, 1953. (G. O. Ms. No. 60 Revenue, both January 1955)

(3.) In exercise of the powers conferred by section 56 of the Andhra State Act, 1953, (Central Act XXX of 1953), the Governor of Andhra hereby directs that the authority, officer or person specified in column (2) of the schedule below, shall be competent to exercise the functions exercisable under the law mentioned in the corresponding entry in column (i) of the said schedule in the Andhra State also. SCHEDULE Functions exercisable and the Act or rule etc. Designation of the authority, under which they are so exercisable. officer or person. (i) (a) To be Assistant Chemical Examiner to the First Assistant, Laboratory of the Government of Andhra for Excise and Board of Revenue (Excise), Prohibition for purposes of Section 510 Madras State, of Criminal Procedure Code. It is thus manifest that by this order the Government of Andhra had appointed the First Assistant, Laboratory of the Board of Revenue, Madras State, as the Assistant Chemical Examiner to the Government of Andhra for the purposes of S. 510 Cr. P. C. Indisputably the Assistant Chemical Examiner is included in S. 510 Cr. P. C. The lower court thought that Ex. P-2 the report in question could not be treated as one by the Assistant Chemical Examiner to the Government of Andhra for two reasons: (1) that he did not sign as Assistant Chemical Examiner to Government of Andhra; and (2) that it was also signed by the Chemical analyst. The contention put for ward by Mr. Satyanarayana before me is on the same lines. I must observe that there is no force in this reasoning. The mere fact that the Analyst, Board's Laboratory, had appended his signature to the document does not detract from the value or the legality of it. As regards the first ground, it is true that the Assistant Chemical Examiner did not describe himself as the Officer to Government of Andhra for Excise and Prohibition. But, it cannot be overlooked that this was sent to Government of Andhra and secondly he was an Assistant Chemical Examiner only to the Government of Andhra because so far as the Government of Madras is concerned, he was only the First Assistant of the Laboratory of the Board of Revenue. It is therefore futile to contend that Ex. P-2 should be ignored as the report of an Assistant Chemical Examiner to the concerned Government. In the circumstances of the case, the only reasonable inference that could be drawn it that it was in his capacity as Assistant Chemical Examiner to the Government of Andhra he submitted the report. That contention is therefore overruled. Another gound of decision was that since the report was received prior to the initiation of prosecution, it could not be received in evidence and in the absence of any such report there was no material to establish that the substance recovered from the accused was fermented wash to sustain a conviction under S. 4 (1) (g) of the Prohibition Act. This view of the trial Court was based on a judgment of a single Judge of Patna High Court in Chauth Mull v. Emperor'. It is useful to refer to the terms of Sec. 510 Cr. P. C.