HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

CRR No. 2089 of 2020 (Ishwarlal S/o. Ramniwas Patidar. V/s. State of M.P.)

Date : 15.01.2021 :

Applicant by Shri Yashpal Rathore Advocate.

Respondent/State by Shri Ayushman Choudhary, Panel Advocate.

Heard the learned counsel for the parties through video conferencing.

O R D E R

The applicant/accused has filed the present revision u/s.

397, 401 of the Cr.P.C. against the order dated 9.9.2020 whereby the applications filed u/s. 293 of the Cr.P.C. and u/s. 65 of the Evidence Act filed by the prosecution have been allowed by the learned Special Judge, Narcotic Drug Psychotropic Substances Act (NDPS Act), Mandsaur.

2. The applicant is facing trial u/s. 8/21, 29 and 31 of the NDPS Act registered at Crime No.353/2016, by the Police Station Sitamau, District Mandsaur. The prosecution has examined all the witnesses and the statement of the accused has also been recorded on 21.7.2020. Thereafter, the trial was fixed for final hearing on

27.7.2020.

3. According to the applicant, the arguments have already been advanced on 27.7.2020 and on the said date, the prosecution has filed an application u/s. 293 of Cr.P.C. seeking permission to exhibit the certified copy of the FSL report as secondary evidence without calling the witness. The application was opposed by the applicant on the ground that the original FSL report is not available on the record, therefore, Certified Copy the same is inadmissible in evidence. Upon raising such an objection, the prosecution has filed another application u/s. 65 of the Evidence Act on the ground that the certified copy of the FSL report is a public document and the same is liable to be admitted as a secondary evidence. The applicant opposed the application by filing the reply on 14.8.2020. Vide impugned order dated 9.9.2020 learned Special Judge has allowed both the applications by directing the prosecution to call Ajay Kumar Sharma to prove the contents of the FSL report. Hence the present revision before this Court.

Vide order dated 19.10.2020, this Court has stayed the delivery of judgment and fixed the case for final arguments. With the consent of parties, this revision is heard finally.

4. Shri Yashpal Rathore, learned counsel appearing for the applicant argued that after the conclusion of the evidence and final arguments in the trial, the prosecution has filed the application u/s. 293 of the Cr.P.C. that the Certified Copy of photocopy of the FSL report be permitted to be exhibited in the trial but the original FSL report is not available on record and along with the challan, even otherwise FSL report is not a public document, hence the same is not admissible under the Evidence Act as secondary evidence. As per provisions of Section 293 of the Cr.P.C. the original report is liable to be produced in the trial. In support of his contention, he has placed reliance over the judgment of coordinate Bench of this Court in the case of Govind Nandilal Lodhi V/s. State of M.P. : 2002 (1) MPLJ 569. Upon raising such an objection, the prosecution has filed an application u/s. 65 of the Evidence Act that the FSL report has been certified by a person who has prepared the original copy and being a public document the certified copy same is liable to be taken into evidence. Even the said application was opposed by the applicant, but the learned Special Judge has wrongly allowed both the applications. Learned counsel further submitted that the ingredients of Section 65 are missing as there is no pleading that the original report has been misplaced or lost or destroyed. The issue is no res integra as in the case of Govind Nandilal Joshi (supra) it has been held that the report of a scientific expert is not a public document and such report cannot be proved u/s. 77 of the Evidence Act. Section 293 is confined to primary evidence. He further submitted that if the photocopy or certified copy is permitted to be produced u/s. 293 of the Cr.P