RAJESH KUMAR AND ANR.versusSTATE GOVT. OF NCT OF DELHI

                            [2008] 3 S.C.R. 391


                       RAJESH KUMAR AND ANR.                           A
                                    v.
                    STATE GOVT. OF NCT OF DELHI
                    (Criminal Appeal No. 380 of 2008)
                           FEBRUARY 25, 2008
                                                                       B
            [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ]

             Code of Criminal Procedure, 1973- s. 293 - Reports of
        Government scientific experts - Deposition of expert in
        proceedings before the Court - Necessity of:... Held: Is not   c
        obligatory.
          Punjab Excise Act, 1914 - s. 61 - Conviction under, for
     smuggling liquor - Upheld by courts below - High Court
     holding that as documents marked in terms of s. 293 Cr.P.C,
     examination of witness to prove the Excise Control Laboratory D
"\ ~ report not required - On appeal, held: Conviction justified-
     However, sentence of six months simple imprisonment
     reduced to the period already undergone - Code of Criminal
     Procedure, 1973 - s. 293 - Sentence/Sentencing.
           It is alleged that the appellants indulged in the E
      smuggling of liquor from Haryana to Delhi. The raiding
      party intercepted the vehicle in wh.ich the appellants were
      traveling and apprehended the appellants. The bottles of
      liquor were recovered. Form M-29 was filed up. The
    ~ samples were sealed and seht to the Excise Control F
      Laboratory for testing and the samples tested positive as
      whisky. Prosecution examined the witnesses and they
      testified as to recovery of samples. Appellants were
      convicted for offence under s. 61 of the Punjab Excise
      Act, 1914 and sentenced to six months simple G
      imprisonment. The Sessions Judge upheld the order. In
      the Revision petition, the High Court referring to the
~   # evidence of the prosecution witnesses about sealing and
      sending samples to the Excise Control Laboratory held
                                  391                             H
    392       SUPREME COURT REPORTS                 [2008] 3 S.C.R.


A that there was no necessity for examining any witness to            '        '
  prove the Excise Control Laboratory report as documents
  were marked in terms of section 293 Cr.P.C. Hence the
  present appeal.
          Disposing of the appeal, the Court
B
         HELD: 1.1 A bare reading of sub-sections (1) and (2)
    of Section 293 Cr.P.C. of Criminal Procedure shows that it        ,,
    is not obligatory that an expert who furnishes his opinion
    on the scientific issue of the chemical examination of
c   substance, should be of necessity made to depose in
    proceedings before Court. [Para 9] [395-F]
          Usha Ko/he v. The State of Maharashtra AIR 1963 SC
    1531; Bhupinder Singh v. State of Punjab AIR 1988 SC 1011
    - relied on.
D
       2. With regard to the submission that the appellants
  have already suffered custody for more than three months,           "
                                                                           .
  and the occurrence took place nearly 13 years back, there
  was no minimum sentence prescribed at the relevant point
E of time. That being so, while upholding the conviction,
  the sentence is reduced to the period already undergone.
  [Para 1O] [395-G; 396-A]
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 380 of 2008
F
         From the final Judgment and order dated 18/1/2007 of
    the High Court of Delhi at New Delhi in Crl. R.P. No. 190/2006.
        M.N. Krishnamani, Soumyajit Pani and Ansar Ahmad
    Chaudhary for the Appellants.
G
        B.B. Singh, Abha R. Sharma and D.S. Mahra for the
    Respondent.
          The Judgment of the Court was delivered by
                                                                           •
          Dr. ARIJIT PASAYAT, J. 1. Leave granted.
H
            RAJESH KUMAR AND ANR. v. STATE GOVT. OF NCT                    393
.,.   1
                   OF DELHI [Dr. ARIJIT PASAYAT, J.]

                 2. Challenge in this appeal is to the judgment of a learned A
           Single Judge of the Delhi High Court dismissing the revision
           petition filed by the appellants. By the revision petition challenge
           was to the judgment of learned Additional Sessions Judge, New
           Delhi, upholding the conviction and sentence imposed by the
           learned Metropolitan Magistrate.                                     B
                 3. Background facts in a nutshell are as follows:

                   The appellants were alleged to have been indulging in
             smuggling of liquor from Haryana to Delhi. The prosecution
             alleged that upon receipt of information, S.I. Lalit Mohan,          c
             alongwith certain police officials, constituted. a raiding party,
             assembled near a traffic intersection and on 8.4.1994 at about
             1.45 A.M. intercepted a Tata 407 vehicle in which the appellants
             were travelling. Despite being signalled to stop, the vehicle sped
             away. The police officials chased it, and stopped it and
                                                                                  D
             apprehended the appellants. Eighteen cartons containing 12
 " "         bottles of "Bonnie Scot" Special Malt Whisky, each being an
             750 ml bottle, were recovered. Two sample bottles were taken
             out separately as samples and (from each carton i.e., 36 bottles).
             The heads of the samples bottles were enclosed in White
           · Pullanda and sealed with the letters "LMN". Form M-29 was            E
             also filled. The seal was handed over to Head Constable Satpal
             Singh. An FIR was lodged and a site plan was prepared. The
             appellants were arrayed as accused and arrested. The Excise
      ..     Control Laboratory opined that the samples submitted tested
             positive as Whisky. The appellants were charged with having          F
             committed offence under Section 61 of the Punjab Excise Act,
             1914 (in short the 'Act'). They stood trial pleading not guilty.
                   4. The prosecution examined three witnesses. All of them
            testified as to recovery of the samples. The accused persons
                                                                                  G
            did not lead any evidence in their defence. They however, denied
            the accusations through statements under Section 313 of the
  •         Criminal Procedure Code, 1973 (in short the 'Cr.P.C.')
                 5. The Metropolitan Magistrate i.e., the Trial Court by
            judgment and order dated 1.5.2001 found the appellants guilty         H
    394       SUPREME COURT REPORTS                  [2008] 3 S.C.R.


A and sentenced them to six months simple imprisonment with
  fine of Rs.2,000/- and in default a further three months simple
  imprisonment. The appeal preferred by the petitioners to the
  Additional Sessions Judge was dismissed by order dated
  22.2.2006.
B       6. The only stand before the High Court was that there was
  delay in dispatch of the sample and none was examined.to prove
  the reports. The High Court found that there was no substance
  in the plea. Referring to the evidence of SI PW3 and PW1 about
  the sealing and sending samples to the Excise Control
C Laboratory, it was noted that the Form M-29 was filled up by
  PW 2 at the time of recovery. All the prosecution witnesses have
  testified that the same was filled up by PW3. The seal after use
  was handed over to PW1. These were tallied with the specimen
  seal of M29 when the Excise Control Laboratory sealed them. It
D was noted that there was no necessity for examining any witness
  to prove the Excise Control Laboratory report as documents
  were marked in terms of Section 293 Cr.P.C.
        7. Learned counsel for appellants reiterated the
  submissions made before the High Court. Learned counsel for
E the respondent, on the other hand, supported the judgment of
  the High Court. It is submitted that no question was put to either
  PW1 or PW3 on the aspect of alleged delay in sending the
  samples.
F         8. Section 293 Cr.P.C. reads as follows:
          "293. Reports_ of certain Government scientific
          experts. (1) Any document purporting to be a report under
          the hand of a Government scientific expert to whom this
          section applies, upon any matter or thing duly submitted
G         to him for examination or analysis and report in the course
          of any proceeding under this Code, may be used as
          evidence in any inquiry, trial or other proceeding under
          this Code.
          (2) The Court may, if it thinks fit, summon and examine any
H
              RAJESH KUMAR AND ANR. v. STATE GOVT. OF NCT                   395
v                    OF DELHI [Dr. ARIJIT PASAYAT, J.]
        "
                   such expert as to the subject-matter of his report.             A
                   (3) Where any such expert is summoned by a Court and
                   he is unable to attend personally, he may, unless the Court
                   has expressly directed him to appear personally, depute
                   any responsible officer working with him to attend the Court,
                   if such officer is conversant with the facts of the case and    B
                   can satisfactorily depose in Court on this behalf.

                   (4) This section applies to the following Government
                   scientific experts, namely:-

                   (a) any Chemic~! Examiner or Assistant Chemical                 c
                   Examiner to Government;

                   (b) the Chief Controller of Explosives;
                   (c) the Director of the Finger Print Bureau;
                                                                                   D
    ~   ...        (d) the Director, Haffkeine Institute, Bombay;
                   (e) the Director [Deputy Director or Assistant Director] of
                   a Central Forensic Science Laboratory or a State Forensic
                   Science Laboratory;
                                                                                   E
                   (f) the Serologist to the Government.
                   (g) any other Government Scientific Expert specified by
                   notification by Central Government for this purpose.]"
        ).           9. A bare reading of sub-sections (1) and (2) of Section
              293 shows that it is not obligatory that an expert who furnishes     F
              his opinion on the scientific issue of the chemical examination
              of substance, should be of necessity made to depose in
              proceedings before Court. This aspect has been highlighted
              by this Court in Ukha Ko/he v. The State of Maharashtra (AIR
              1963 SC 1531) and Bhupinder Singh v. State of Punjab (AIR            G
              1988 SC 1011 ). Therefore, there is no substance in the revision
              petition so far as the conviction is concerned .
    • •
                   10. Learned counsel for the appellants submitted that the
              appellants have already suffered custody for more than three
                                                                                   H
    396        SUPREME COURT REPORTS                (2008) 3 S.C.R.


A months, and the occurrence took place nearly 13 years back. It
  is noted that there was no minimum sentence prescribed at the
  relevant point of time. That being so, while upholding the
  conviction, we reduce the sentence to the period already
  undergone. The prayer for exemption from surrendering was
B accepted by order dated 12.4.2007.
           11. The appeal is disposed of accordingly.
    N.J.                                      Appeal disposed of.




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