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Criminal Revision No. 225 of 1968, decided on 11th June 1969.

‑Analyt's report‑Not covered by S. 510‑Analyst not examined‑Contests of such report, held, inadmissible in evidence without formal proof.

Imperator v. Ahila Manaji No. 1 and another A I R 1923 Bom. 183 ; Bansilal Gangaram Vani v. Emperor A I R 1928 Bom. 241 ; ;Sulemar Shamji v. Emperor A I R 1943 Bom. 445 ; Muhammad Shafr v. Tire Crown P L D 1949 Lab. 175 ; 9 D L R 564 : Iljagar Singh and others v. Emperor A I R 1939 Lab. 149 and Happu v. Emperor A I R 1933 All. 837 rel.

‑ Adulteration ‑ Identity of articles sent to Analyst or Chemical Examiner not established‑ No proof that articles examined were same as recovered from accused‑Sealed sample bottles taken from accused's shop and tested by Analyst not produced before Court‑Report of Analyst, in circumstances, held, of no use as evidence‑Conviction sit aside.

A. Aziz for the Petitioner.

M. Behtar Ali for the Opposite‑Party.

Dates of hearing : 7th February, 10th and 11th June 1969.

The petitioner obtained this Rule against his conviction and sentence under section 44 read with section 7 of the East Pakistan Pure Food Ordinance, 1959 (hereinafter called the Ordinance).

Complainant P. W. 1 is a Sanitary Inspector of the Dacca Municipality. He visited the shop of the accused petitioner at 1, Bamakanta Nandi Lane on 30‑4‑64 and found him selling exposed and adulterated ghee. He purchased three chattacks of ghee on payment from the accused and put the same in three bottles and sealed those in presence of the accused. He made over one such sealed bottle to the accused and sent the two other sealed sample bottles to a public Analyst attached to the Dacca Municipality for chemical examination and report. The Analyst chemically tested the sample ghee taken from the shop of the accused and found the same to be adulterated. He accordingly submitted a report and P. W. 1 thereafter lodged a complaint against the accused for action under section 44 of the said Ordi nance. The accused‑petitioner was thus put on trial before Mr. A. Ahmad, Magistrate, 1st class, Dacca to meet a charge thereunder.

The plea of the accused was one of innocent. He asserted that there was foreign substance on the sample file of the case ghee and as a result the sample ghee was adulterated.

Prosecution examined two witnesses but the defence ex amined none. The report of the Analyst was also produced before the Court. The learned Magistrate on appraisal of the evidence and materials on record, convicted and sentenced the accused petitioner under section 744 of the East Pakistan Pure Food Ordinance, 1959 to pay a fine of Rs. 800 in default to, undergo rigorous imprisonment for three months. In appeal the learned Sessions Judge, Dacca modified the sentence and reduced it from Rs. 8C0 to Rs. 200 in default to rigorous imprison ment for three months. Hence the present petition before this Court.

The learned Advocate appearing for the petitioner has contended that the charge against the accused has not been proved that the adulteration and standard of purity of ghee has not at all been established by any evidence and that in the absence of examination of the Analyst the report Exh. 3 cannot go into evidence and the conviction is solely based on an inadmissible piece of evidence.

P. W. 1 the complainant has stated in his deposition that he purchased three chattacks of ghee on payment from the accused put the same in three bottles and sealed those in presence of the accused. He has further stated that he made over one such sealed sample bottle to the accused and sent the two other sealed sample bottles to the Analyst through his peon P. W. 2 for chemical test and report. He has also stated that the Analyst submitted a report marked as Exh. 3 P. W. 2 has corroborated P. W. 1 in this respect.

The Analyst has not been examined in the case. Save and except the report, Exh. 3 of the Analyst there is nothing on record to prove adulteration or standard of purity of ghee. Now the question is can the report of the Analyst go into evi dence without examination of the Analyst himself. P.W. 1 has only stated that the Analyst submitted a report. He cannot prove the contents of the said report. The Analyst having not been examined in the case, the contents of the report cannot be said to have been legally proved and without a formal proof of the contents, the report, in my opinion, cannot go into evidence. The report is thus wrongly admitted in evidence and it is an inad missible piece of evidence.

The learned Advocate appearing for the Dacca Municipality has drawn my attention to section 510 of the Code of Criminal Procedure and submitted that the report of the Analyst might go into evidence under that section. Section 510 of the Code runs as follows:‑

"Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, upon any matter or thing duly submitted 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 proceedings under this Code."

A careful perusal of the section will show that the report of an Analyst is not covered by this section. The section does not contemplate a report submitted by an Analyst. According to this section only the report of any Chemical Examiner or Assistant Chemical Examiner to Government may go into evi dence without formal proof. The section does not include any Analyst or any other expert except the Chemical Examiner or Assistant Chemical Examiner to Government. The term "Chemical Examiner" does not include a Government Excise Ana lyst or a professor of Anatomy of Medical College or a chemist of Government Laboratory or a Municipal Analyst or an Assistant to the Chemical Examiner. In this connection the cases reported in A I R 1923 Porn. 183, A I R 1928 Bom. 241, A I R 1943 Born. 445 and P L D 1949 Lah. 175 may be referred to.

The acceptance of a report of the Analyst as evidence in a criminal case without subjecting him to cross‑examination is extremely dangerous and no person should be put in peril or any punishment on such written report not given on oath and untested by cross‑examination. This is particularly so when the report is not merely factual but also contains opinion of the expert. So a report cannot form the basis of conviction without affording opportunity to the accused to cross‑examine the expert and the Court must examine the expert if it wants to rely on it. This view receives support from the cases reported in 9 D L R 564, A I R 1939 Lah. 149, A I R 1933 All. 837 and A I R 1960 Mad. 370.

There is another aspect of the matter. The report of an Analyst or Chemical Examiner cannot be of any use as evidence unless there is proof of the identity of the articles sent to the Analyst or Chemical Examiner with the articles examined by him. The prosecution must produce evidence that the articles 8 sent to the expert were the same, which were recovered from the accused. In the instant case the sealed sample bottles containing gee taken from the shop of the accused and tested by the Analyst were not produced before the Court. 'Chic is another defect in the prosecution case.

Thus the point raised by the learned Advocate has consider able substance. Non‑examination of the Analyst in the case has been fatal and the accused, in the circumstances, can rightly complain that the adulteration has not been proved and the conviction is based on inadmissible evidence.

For the reasons stated above, the order of conviction and sentence is liable to be set aside and it is accordingly set aside. But in view of the facts and materials on record I am not inclined to acquit the accused at this stage. The offence alleged is one against the society. 1n the circumstances, in the interest of justice. I think that the matter should go back to the original Court for re‑trial.

The report of the Analyst is already on record if the Analyst is now examined in the case, he will only speak about his report and nothing else. He is thus a witness of formal nature. The accused will get opportunity to cross‑examine him and as such, he is not likely to be prejudiced in any way.

In result, this Rule is made absolute and the suo motu Rule is discharged. It is directed that the accused petitioner be retired in accordance with law in the light of the observations made above.

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