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- Report of Govt Analyst and CDL must give factual data (Part-2) - August 2, 2021
- Report of Govt Analyst and CDL must give factual data (Part-1) - July 25, 2021
Last Updated on August 2, 2021 by The Health Master
Report of Govt Analyst and CDL must give factual data
The Drugs and Cosmetics Act, 1940, provides for the procedure as to lifting of samples and also the testing from the Government Analyst. While Section 23 of The Drugs and Cosmetics Act, 1940, provides for the detailed procedure for taking a sample, and unless the procedure laid down in that section is followed no finality can be attached to the report of the Government Analyst or the Central Drugs Laboratory (CDL).
Section 25 of the Drugs Act provides for the test report to be delivered to the Inspector who has sent the samples. Provisions of said section 25 shall be read together and not in isolation. If the prosecution wants to prove the report of the Government Analyst and contend that it should be treated as conclusive evidence, it is necessary to observe the procedure mentioned in Section 23. The report of the Government Analyst under Section 25 is governed by the procedure mentioned in Section 23.
It is necessary to closely analyze the provisions of Section 25 of the Drugs Act. Section 25 of The Drugs and Cosmetics Act, 1940.
A reading of this section makes it clear that the report of the State Government Analyst is to be held to be conclusive only if it is not challenged according to the procedure given in the section (Even there is an exception to this rule also). This by itself proves that it is not conclusive evidence in the sense that it must be accepted.
It is open to an accused person to rebut the report and it is open to a Court to reject the report if the rebuttal is satisfactory. In other words, the legislature, although it has denied the right of cross-examination to an accused and has also made this report admissible in evidence without the Government Analyst deposing on oath, has provided an alternative procedure by which an accused can defend himself.
The Drugs and Cosmetics Act,1940, contains prescribed forms, and form 2 in Schedule A framed under Rule 6 of the Drugs Rules, 1945, clearly mentions the requirements which a certificate of test or analysis by the Central Drugs Laboratory should contain. It is mentioned in this form 2 that details of results of test or analysis with protocols of tests applied should be given. A report which does, not contain any factual data cannot be treated as conclusive evidence of the opinion given in the report.
In-State v. Sahati Ram, 1957 All LJ 647:
The Court observed that “It has been repeatedly pointed out by this Court, and in this connection, we may refer to two recent decisions of this Court, the one in Din Dayal v. State, in which one of us was a party, and the other in State v. Nathi Lal that the certificate of the Chemical Analyst should contain the factual data which the analysis should reveal and not merely the opinion of the Public Analyst as to what that data indicates about the nature o£ the article of food, and that if the certificate merely gives the final opinion of the Public Analyst and if such an opinion be held to be conclusive evidence about the nature of the article of food, the merit of the case against the accused is really decided by the public Analyst and not by the Court and the Court just gives its authority to the conclusion of the Public Analyst and that this cannot be the position in law.
The report of the Public Analyst in the present case does not, in our opinion, specify what Section 10 of the Act required him to specify and what could have been evidence for the consideration of the Court.”
In Dharam Deo Gupta Vs. State, 1958CriLJ1453:
Allahabad High Court observed that “ I am in entire agreement with the view expressed above and in my opinion, the legislature did not contemplate that cases should not be decided by Courts of law, but by Government Analysts, who do not even give the reasons for their opinion. If this was really the intention of the legislature, it would make Section 25(4) of The Drugs and Cosmetics Act, 1940, of the Constitution, for it would amount to denying the basic right to an accused person to defend himself and it would be against the established procedure of Law.
“That a person has a basic right to defend himself against an accusation has been held again and again by the Supreme Court. However strong and believable the evidence might be the accused must be given an opportunity of rebutting that evidence. If such an opportunity is not given it violates the fundamental conceptions of natural justice and it infringes Art 21 of the Constitution of India”.
It may also be kept in mind that the reasonable possibility of an error being committed by the Government Analyst when he is analyzing or testing a sample cannot be eliminated. The Court has a right to satisfy itself that the chance of a mistake has been eliminated. It can do so if sufficient factual data is given in the report. This factual data by itself will show that the opinion given is fully borne out.
To be continued ……. Report of Govt Analyst and CDL must give factual data (Part-2)
The opinion of the author is personal and based upon his understanding. The author is an Advocate practicing before Supreme Court and Delhi High Court. Email. [email protected]. Web: www.macecorpn.com
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