[ASSIZE COURT]

1951 Present: Dias S.P.J.

REX v. GUNAWARDENE et al.

S. C. 2-M. C. Ratnapura, 16,250

Criminal Procedure Code (Cap 16), s. 406 (3)-Government Analyst's report ore a question unconnected with chemical analysis-Admissibility-Proper direction to be given to Jury-Government Analyst's name not on the list of witnesses in case committed for trial-right of prosecution under s. 406 (4) to ash for summons on Government Analyst without amending indictment.

The provisions of section 406 (3) of the Criminal Procedure Code, which makes admissible in evidence the report of the Government Analyst upon any matter or thing duly submitted to him for examination or analysis, are not confined to matters or things submitted to him for " chemical analysis ". There fore, his report on a question of ballistics is admissible in evidence without calling him, subject to the provisos contained in sub-sections (4) and (5) of section 406,

It is the duty of the trial Judge in such cases to tell the jury that they should appreciate that in considering the weight to be attached to the report, it had been admitted without being tested by cross-examination. It is also the duty of the Judge to draw attention to any surrounding facts or circumstances which may tend to support or negative the correctness of the facts or inferences stated in the report.

Where the Attorney-General has committed a case for trial before a higher Court, merely placing the report of the Government Analyst as an exhibit in the list of productions, without adding the name of the Government Analyst to the list of witnesses, it is open to question whether the prosecution under the proviso to s. 406 (4) can request the Court to summon the Government Analyst as a witness for the prosecution. The right of the defence to request the Court under s. 406 (4) to summon that officer as a witness for the defence cannot be questioned. Perera v. Dharmaratne (1946) 47 N. L. R. 38 distinguished.

ORDER made in the course of a trial before the. Supreme Court.

 S. P. M. Rajendram, with R. Nagalingam, for the 1st accused.

 R. Nagalingam, for the 2nd accused.

 A. B. Perera, with L. H. R. Peiris, for the 3rd accused.

S. P. M. Rajendram. with L. H. R. Peiris, for the 4th accused.

 L. H .de Alwis, for the 5th accused.

T. S.' Fernando, Crown Council with A. G. M. Ameer, Crown Counsel, for the Crown.

March 5, 1951. DIAS S.P.J.-

Can the report of the " Government Analyst " upon matters such as questions of ballistics which may not need chemical analysis be admitted in evidence against an accused person without calling the Government Analyst into the witness box under section 406 (8) of the Criminal Procedure Code, as amended by Ordinance No. 23 of 1945, section 2 '?

Originally, no doubt, the functions of the Government Analyst were confined to matters of chemical analysis. It is a well known fact that today that officer has attracted to himself a great many other functions which cannot be described as " chemical analysis ". Amongst such other functions he is called upon to examine firearms, bullets, cartridge cases, &c, in order to assist the Courts in the administration of justice. His competency to do this work is not in question. The point is whether when he expresses his opinion, he should appear as a witness in the Court and give evidence and face cross-examination, or whether his report alone can legitimately be admitted without his being called under s. 406 (3) of the Criminal Procedure Code ?

This problem arose directly in the present case. The Government Analysts Report P17 shows that he was asked to report whether certain distorted slugs P6 and P7, and two card wads P9 and P9A found at the scene of an alleged murder by shooting were parts of cartridges. He was also requested to express an opinion as to the kind of gun from which they were fired, and whether the gun P3 was or was not the firearm fr