Allowed

Shridhr Laxman Chennuri v. the Union of India and Anr.

Bombay HC6 Jul 2010APEAL/545/2006

Case brief

AI extract

What is this about?

The High Court of Bombay held that the prosecution was fatal for not examining the Chemical Analyst to prove the CA report. The conviction under the NDPS Act was quashed on the ground that key evidence remained unproved.

What did the court decide?

Appellant acquitted of charges and released forthwith unless required in any other case. Judgment of Special Judge set aside.

Shridhr Laxman Chennuri Vs the Union of India and Anr. — Narcotics (NDPS) | Bombay HC (2010)

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(Cri.Appeal 545)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 545 OF 2006

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Shridhar Laxman Chennuri)
Hindu, aged about 55 years)
permanently residing at 02,)
Bharath Bldg., Ayodhya Nagari)
Manpada Road, Dombivali (East))
Dist. Thane and presently)
undergoing sentence at )
Kolhapur Central Prison, )
Kolhapur)...Appellant

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Versus

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`1.` `The Union of India`	`)`
`(At the instance of The`	`)`
`Intelligence Officer,`	`)`
`Narcotics Control Bureau,`	`)`
`3`^rd`floor, Exchange Building,`	`)`
`Sprott Road, Ballard Estate,`	`)`
`Mumbai – 400 038`	`)`
`2. The State of Maharashtra`	`).`	`..Respondents`

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(Cri.Appeal 545)

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Mr.Anil Lalla i/b Lalla & Lalla for Appellant
Mr. S.K. Shinde for Union of India.
Mr.A.S. Shitole -APP for State

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CORAM: V.M. KANADE J. DATED: 6TH JULY, 2010

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JUDGMENT:

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1.The Appellant has filed this appeal, challenging
the judgment and order passed by the learned Special
Judge dated 7th April, 2006 whereby he was pleased to
convict the Appellant herein for the offences
punishable under section 8(c) r/w. Section 25 and
under section 8(c) r/w. 22 of the N.D.P.S. Act and the
Special Judge was pleased to sentence him to suffer
R.I. for 10 years and to pay fine of Rs.1,00,000/- and
in default of payment of fine, to suffer further R.I.
for a period of three months on both the counts.

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2.The Appellant was arrested on 8.2.2001 and he is
in custody since then. The Appellant, therefore, has
already undergone almost 9 years and 6 months of
sentence out of the 10 years which was awarded by the
Sessions Court.

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(Cri.Appeal 545)

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3.Brief facts are as under:

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The officers of the NCB received specific
information which was recorded in writing and
pursuant to the said information, they proceeded to
carry out the raid at a factory premises situated in
MIDC Area of Taloja, Dist. Thane. The officers of
the NCB were supposed to take search of mini truck
bearing No.MH-04-S-8235 which was parked in the
compound of the said factory premises. This
information was reduced into writing on 8.2.2001 by
the Intelligence Officers Shri P.S. Namboodri and Shri
A.K. Thakkar. Copy of this information was forwarded
to the Superior Officer Shri S.M. Dange, who directed
the said officers to carry out the raid.

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4.When the raiding party found that the truck which
was parked in the said compound, had conducted search.
In the said truck, they found 51 HDPE sacks and when
the bags were opened, they found to contain Mandrax
tablets weighing 1423.690 kgs. Thereafter samples
were drawn, they were sealed and the labels were
affixed on the said samples. The bulk muddemal
property was also closed, packed, sealed and labeled.
Personal search of the Appellant was taken and

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(Cri.Appeal 545)

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panchnama was, accordingly, drawn. The Appellant was
arrested and during the course of investigation, the
Investigating Officer also arrested the Accused Nos.2
and 3 and Accused No.4. The samples which were drawn
during the panchnama, were sent for the purpose of
analysis to the Dy. Chief Chemist, New Customs House,
Mumbai. Tests reports were received and the
chargesheet was finally filed by the prosecution. The
Special Judge was pleased to frame charges against the
Appellant, who pleaded not guilty to the said charges.
The prosecution examined 31 witnesses. The defence
examined only one witness viz. DW-1 – Sanjay Pandurang
Kolhe. During the trial, the defence of the accused
was that a mini-truck was not found parked in the
factory premises of the Accused-Appellant herein, and
secondly, that he was not in conscious possession of
the contraband, allegedly recovered from the said
truck. Thereafter, on the basis of the evidence on
record, the Appellant was convicted.

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5.The learned Counsel for the Appellant, inter alia,
urged that the Trial Court had acquitted the other
accused viz. Accused Nos.2 to 4. It was urged by Shri
Lalla , the learned Counsel appearing on behalf of the
Appellant – Accused that the prosecution has not
examined the Chemical Analyzer, who had conducted the

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(Cri.Appeal 545)

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tests on the samples drawn by the NCB. It was,
therefore, submitted that the report of the Chemical
Analyzer, was not proved, as required under the law.
It was further submitted that PW-31,who was examined
by the prosecution was not an expert since he was not
analyzer in this case. It is submitted that non
examination of the expert was fatal to the prosecution
case as held by the Apex Court and this Court in
catena of cases.

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6.The learned Counsel appearing on behalf of the
prosecution, on the other hand, submitted that the
C.A. Report received from the Deputy Chemical Analyzer
was taken on record as Exhibit -34 (colly) since it
was not disputed by the accused.

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7.The Learned Counsel appearing on behalf of the
Appellant has relied on the judgment of the Division
Bench of this Court in the case of Nicklaus Peter
Heel vs. State of Goa, reported in 1998 (2) Mh.L.J.
884. It was submitted that the ratio of the said
judgment would squarely apply to the facts of the
present case.

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8. I have heard both the Learned Counsel for the
Appellant and the learned Counsel for the Respondent

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(Cri.Appeal 545)

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at length. In my view, there is much substance in the
submission made by the learned Counsel for the
Appellant. In the present case, it is an admitted
position that PW-31, who has been examined by the
prosecution has not analyzed the samples though the
C.A. report was brought on record at Exhibit-34
(colly). In fact, the contents of the C.A report have
not been proved at all. In my view, the Special Judge
has clearly erred in relying on the said C.A. report
as the accused had not taken objection to the said C.A
report and since it was taken on record, the same was
held to be proved. The law on this point is quite
well settled. The Apex Court in the case of Murarilal
vs. State of Madhya Prades reported in AIR 1980 SC
page 531, in paragraph 4 has discussed how an
expert's evidence could be appreciated and has
observed thus:-

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“True, it has occasionally been said on
very high authority that it would be
hazardous to base a conviction solely on
the opinion of a handwriting expert.
But, the hazard in accepting the opinion
of any expert, handwriting expert or
any other kind of expert, is not because

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(Cri.Appeal 545)

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experts, in general, are unreliable
witnesses- the equality of credibility
or incredibility being one which an
expert shares with all other witnesses,
but because all human judgment is
fallible and an expert may go wrong
because of some defect of observation,
some error of premises or honest mistake
of conclusion. The more developed and
more perfect a science, the less the
chance of an incorrect opinion and the
converse if the science is less
developed and imperfect. The science of
identification of finger-prints has
attained near perfection and the risk of
an incorrect opinion is practically non-
existent. On the other hand, the science
of identification of handwriting is not
nearly so perfect and the risk is,
therefore, higher. But that is a far cry
from doubting the opinion of a
handwriting expert as an invariable rule
andinsistinguponsubstantial
corroboration in every case, however the
opinion may be backed by the soundest of
reasons. It is hardly fair to an expert

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(Cri.Appeal 545)

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to view his opinion with an initial
suspicion and to treat him as an inferior
sort of witness. His opinion has to be
tested by the acceptability of the
reasons given by him. An expert deposes
and not decides. His duty is to furnish
the Judge with the necessary scientific
criteria for testing the accuracy of his
showing that the ingredients which
according to the Chemical Analyser are
not medicinal do in fact bear medicinal
properties. To permit the prosecution
to rely upon a mere negative opinion
without making available to the accused
the grounds on which that opinion is
based, seems to us to be unwarranted
procedure, a procedure which runs
counter to the well-established
restrictions subject to which alone
opinion evidence can be accepted. We may
seem to repeat, but it is necessary to
emphasize that Courts are not bound to
accept evidence merely for the reasons
that the Legislature has made that
evidence admissible.”

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(Cri.Appeal 545)

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Similarly, in the case of Suleman Usman Menon vs.
The State of Gujarat reported in 1961(2)Cri. L .J. 78,
the Apex Court in paragraph 5 observed thus:-

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“It is not enough for the Chemical
Examiner merely to state his opinion as
to what was the concentration of alcohol
in the sample of the blood analysed by
him. The report of the Chemical Examiner
must show the tests or experiments
performed by him, the factual data
revealed by such tests or experiments
and the reasons leading to the formation
of the opinion from such factual data.
Otherwise the report would have no value
as a piece of evidence. This legal
propositionemergesclearlyand

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unmistakably if one bears in mind the
true nature of the evidence furnished by
the report. …... It must, however, be
remembered that the opinion of the
Chemical Examiner is merely a piece of
evidenceonthepointregarding
concentration of alcohol in the blood of

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(Cri.Appeal 545)

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the accused and it is the Court which
has to form its opinion on the entire
evidence as to whether the concentration
of alcohol in the blood of the accused
was not less than 0.05 per cent. The
reportoftheChemicalExaminer
containing his opinion must, therefore,
disclose the factual data on which the
opinion is based and the reasons in
support of the opinion. Opinion is no
evidence unless reasons in support of

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the opinion are given, for it is then
only that the Court can scrutinize the
reasons and decide for itself as to what
weight should be attached to the
opinion.”

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9.In the present case, the admitted position is that
the contents of the C.A. report have not been proved
by the PW-31, who has not conducted the chemical
analysis of the samples and as such, the Trial Court
could not have relied on the C.A. report merely
because the accused had not objected to bring the said
report on record.

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(Cri.Appeal 545)

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10.In the present case, therefore, the prosecution
has failed to establish that the contraband which was
seized by the raiding party was Mandrax tablets. In my
view, therefore, non-examination of the C.A. in the
present case is fatal to the prosecution case. The
Apex Court and this Court in the the case of Nicklaus
Peter Heel (supra) and other cases have held that
non-examination of the Chemical Analyzer is fatal to
the prosecution case and on that ground alone the
Appellant deserves to be acquitted of charges which
are levelled against him. In any case, the Appellant
has practically undergone the entire sentence.

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10.TheAppellant,therefore,underthese
circumstances, is acquitted of the offence of which
he had been charged. The judgment and order passed by
the learned Special Judge is, therefore, set aside.
The Appellant is acquitted and is directed to be
released forthwith unless he is required in any other
case.

Shridhr Laxman Chennuri v. the Union of India and Anr.

Case brief

What is this about?

What did the court decide?

Shridhr Laxman Chennuri v. the Union of India and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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