ASLAM Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS criminal revision under section 397 read with section 401 CrPC is filed against the order passed by the learned Special Judge, Indore under NDPS Act in Special Case No. 12/2011 dated 7.8.2015 whereby the learned Special Judge rejected the application filed by the present applicant under section 293(2) I ofCrPC. 1

(2.) THE fact giving rise to this criminal revision are that the charge -sheet was filed by the police station, Aerodrome, District Indore in Crime No.218/2011 under section 8/21 and section 29 of NDPS Act against the present applicant as well as another accused Dashrath Patidar s/o Devilal Patidar. After framing of charges the learned Special Judge proceeded with the trial. The statement of prosecution witnesses were recorded and the prosecution chose not to examine the Chemical Analyst Dinesh Kumar Sharma whose name was included in the list of witness in the charge -sheet and closed the case. Thereafter, before recording accused statement under section 313 of CrPC an application under section 293(2) of CrPC was filed for calling the chemical analyst as prosecution witness on the ground that the report of Forensic Science Laboratory did not disclose the details in respect of the quantity of sample used the remaining quantity of the sample, how much quantity is preserved and where the sample was kept when it was received in the laboratory.

(3.) THE learned Public Prosecutor filed the application on the ground that report of the chemical analyst is admissible in evidence without recording the statement of the chemical analyst and, therefore, he did not want to examine the chemical analyst and prayed that the application be dismissed. The learned Special Judge opined that if the prosecution do not want to examine a particular witness then the prosecution cannot be compelled to do that and following the principle laid down in the case of Mohanlal v. State of M.P. [2003(1) MPLJ227],Rajesh v. State [(2008)4 SCC 493], the learned Special Judge dismissed the application.