SHRI PREMADHAR RAJBANSI Vs. THE STATE OF ASSAM

JUDGEMENT

(1.) THE challenge in this revision is to the conviction of the Petitioner under Section 5(a) of the Assam Opium Prohibition Act, for short the Act, for the offence of possessing 5 Kg 150 grams of opium. In assailing the same, Shri Das has advanced two main points and two subsidiary submissions. I may first dispose of the minor aberrations to which my attention is invited. It is first contended that acceptance of the recovered articles, as opium on the strength of Exts. 6 and 7 was not permissible as the Chemical Examiner who bad given the certificate had not been examined. There is no force in this submission as Section 293(1) Code of Criminal Procedure, to which I am fairly referred by Shri Das himself, permits such a report to be "used as evidence". That section applies, as provided in Sub -section (4), inter alia, to a Chemical Examiner. Exts. 6 and 7 being report' of Chemical Examiner, this section has its full application. In view of this, the decision in AIR 1971 Assam and Nagaland 32, to which reference is made by Shri Das, cannot assist the Petitioner as that case had dealt with a report from an Assistant Technical Officer, to which Section 293 would not apply, The decision in Re Marudai AIR 1960 Madras 370 cannot also be called in aid by the Petitioner as in that case the examination of the expert in the Court was desired, because, on the basis of some bones exhumed much after the occurrence, an opinion was given that these belonged to the deceased in the case. This opinion definitely needed to be tested by cross -examination. But in the case at band, the opinion that the article was opium followed almost irresistibly from the finding relating to the chemical tests undertaken. It may also be stated that when the P.Ws. had deposed in the trial Court that the recovered article was opium, there was no challenge on this score.

(2.) ANOTHER subsidiary submission is about the mode of examination of the Petitioner by the learned trial Court, it is stated that by putting the incriminating circumstances in one question, the Petitioner did not proper opportunity to have his say in the matter. I am not inclined to accept this submission inasmuch as the question, though one, does contain the necessary Incriminating facts by and large. No prejudice at all can be said to have been caused by the mode of examination undertaken by the learned trial Court.

(3.) SOME subsequent renderings may now be referred. In Radha Kishan v. State of U.P. : AIR 1963 SC 822, it was stated that only two consequences follow where a search is in contravention of Sections 103 and 165 of the Code of Criminal Procedure (old), whose parallel sections in the Code of Criminal Procedure (new) are Sections 100(1) to 100(8) and 165. The two consequences were said to be that where the search is in contravention of the provision, the same could be resisted by the person whose premise are sought to be searched and secondly the Court in such a situation may be inclined to examine carefully the evidence regarding the seizure It was made clear by this Bench of the 3 learned Judges that beyond these two consequences, no further consequence ensues, and the seizure of the article is not vitiated. Of course, it was emphasised that these provisions are not meant to be disregarded.