EMPEROR Vs. BANSILAL GANGARAM VANI

JUDGEMENT

(1.) The applicant in this case was accused of possessing cocaine and so having committed an offence under Section 43(I)(a) of the Bombay Abkari Act, 1878, During the trial the report of a person called the excise analyst, Government Central Distillery, Nasik Road, that one bottle which had been sent to him contained cocaine, and that some other things contained no cocaine, was tendered in evidence and exhibited by the Magistrate. No objection appears to have been raised to this being done, and the Magistrate appears to have considered that the report fell under e, 510, Criminal Procedure Code. It is quite clear, however, that the report does not come under that section; and the Magistrate was presumably misled by the fact that this excise analyst was referred to in the evidence as a chemical analyser. The accused was subsequently convicted of the offence. On appeal to the Sessions Judge the point arose, that the report of the excise analyst was inadmissible in evidence. The Sessions Judge records in his judgment that this point was not taken in the petition of appeal, but cropped up in the arguments. He further says that, if that certificate be discarded, there was no other evidence to prove that the powder in the bottle in question contained cocaine, and accordingly he proposed to have the excise analyst examined under Section 428, Criminal Procedure Code. Upon this the pleader for the appellant stated that he did not Want to challenge the genuineness or the correctness of the certificate, and that he was prepared to admit that the powder in the bottle sent to the excise analyst was cocaine. The pleader further stated that he thought that it would be a sheer waste of time and money to call the excise analyst, and wanted the appeal to be decided upon the merits. Upon this the Sessions Judge found that the powder in the bottle contained cocaine.

(2.) In this application for revision it is contended that the learned Judge had no right to act on the admission 01 a pleader, and that any such admission was not binding upon the applicant. Further it is contended that the Sessions Judge was wrong in supplying a gap in the prosecution evidence by having the excise analyst examined under Section 428, Criminal Procedure Code, Mr. Thakor for the applicant has argued this question very clearly and fully. The Government Pleader for the Crown submits that, although the certificate was inadmissible in evidence, the accused did not in the original trial really deny that the bottle in question contained cocaine, and that the objection is a purely technical one, In regard to which further evidence can properly be taken under Section 428, Criminal Procedure Code.

(3.) It is certainly true that no stress was laid at the trial upon the denial that is now made that the bottle in question contained cocaine. It is true that the accused did not admit that it contained cocaine. But his main contentions, as shown by the Magistrate's judgment, were that the contents of the bottle had been substituted, so that its containing cocaine did not show that the accused had possessed cocaine, and also that the bottle had been tampered with, in that it was originally intact, whereas now it has a hole at the bottom of it. Then, again, as noted by the Sessions Judge, the point as to the admissibility of the certificate was not taken in the petition of appeal, and only cropped up in argument. Even assuming that Mr. Thakor is right in his contention that the Judge should not have acted upon the admission of the pleader of the appellant, the case is, I think, one where clearly such action on his part amounts to an irregularity, which has not caused a failure of justice, and which, therefore, can be properly held to fall under Section 537, Criminal Procedure Code.