Bombay HC: The Session Judge must record evidence of Chemical analyser in NDPS Case to Prove CA Report

The next important flaw which can be seen is the failure of the prosecution to examine the CA. It is noticed that in the Vidarbha region, in the trials under the NDPS Act, the CA is not examined. In my view, this is a serious mistake on the part of the prosecution. It needs to be placed on record that in Greater Mumbai, in every case under the NDPS Act, the CA is examined. In Vidarbha region, while deciding the appeals against the conviction and sentence in NDPS cases, it is noticed that this aspect is taken for granted by the prosecution. It needs to be stated that in Vidarbha region, the majority of the cases under the NDPS Act are with regard to the seizure of the ganja. The examination of the CA, in the case of the analysis of ganja, is very important because, in the report of the CA the description of the substance in detail is recorded invariably. The description of the substance, seized as a ganja, is required to be proved to bring it within the ambit of the definition of ganja under Section 2(iii)(b) of the NDPS Act. In this case, the prosecution has failed to examine the CA. In this case, the learned prosecutor did not produce remnant samples received from the office of CA. Similarly, the prosecutor did not produce the representative samples drawn at the time of the seizure on the spot as well as drawn in presence of the learned Magistrate at the time of the inventory. The remnant samples are required to be shown to the CA to bring on record the nature of the narcotic drug and the description of the drugs. Similarly, the representative samples are required to be opened before the Court at the time of the evidence of the concerned witness. The presiding officer is required to note down the description of the narcotic drug/substance found in the sample packets. It is further pertinent to mention that if the seized drug is not destroyed, then the same shall also be produced before the Court while recording the evidence of the witness. The description of the substance found in the packets/sacks shall also be recorded. The learned presiding officer is required to record this part of the evidence very meticulously and note down the description of substance.

{Para 18}

 19. I am conscious of the fact that under Section 293 of the Code of Criminal Procedure, the reports of certain Government scientific experts may be used as evidence in an inquiry, trial or other proceedings. The record shows that no specific order was passed by the learned Judge, while admitting the CA report. It is to be noted that, in cases under the NDPS Act, as and when a CA report is tendered, the Court shall insist the prosecutor to examine the CA. If the CA is available, then the learned Judge shall not exhibit the report without examining the CA. The trial of the offences under the NDPS Act cannot be taken lightly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 449 of 2023 and 457 of 2024

Decided On: 25.10.2024

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

G.A. Sanap, J.

Citation: MANU/MH/7026/2024.

Read full Judgment here: Click here.

Print Page

Bombay HC: What procedure the court should adopt while recording evidence of CD or pen drive or any other electronic gadget in criminal trial?

 

It is to be noted that the video recording of the entire process was the best evidence in the possession of the prosecution. The question that was required to be addressed by the learned Judge while recording such evidence was as to how it has to be converted into legally admissible evidence. The learned Judge and the learned prosecutor have committed a procedural error. The proper procedure had not been followed. In this case, the main witnesses are the panch witnesses, the photographer, other members of the raiding party and the investigating officer. If the evidence consists of a video recording of the particular incident or part of the incident, the recorded incident must be proved through the concerned witness. As far as the video recording or recorded CCTV footage is concerned, the witness who is an eyewitness to the incident or acted as a panch witness or in other capacity, must describe the incident on oath before the Court. In such a case, at the time of recording the evidence of the concerned witness, the video recording, either recorded in the CD or pen drive or any other electronic gadget, must be played on the screen. The witness, after playing the CD, must describe or translate the video recording or the contents of the recording in his own words on oath before the Court. If it is an audio recording, then the part of the audible conversation must be transcribed and placed on record under the signature of the investigating officer. Unless and until the recorded video or CCTV footage is played at the stage of evidence of the witness, the witness would not be able to describe or narrate the incident in his or her own words on oath before the Court. In this way, at the stage of recording of evidence, each and every witness concerned with the video recording of the incident or any part of the incident must describe or narrate the incident in his or her own words on oath before the Court. If it is not so done, then it would be very difficult to understand or read that video recording by the presiding officer, prosecutor or Advocate. This procedure has to be scrupulously followed. This has not happened in this case. The CD was not played while recording the evidence of the panch witnesses, the photographer, the other members of the raiding party and the investigating officer. It is therefore apparent that the legally admissible evidence as to the contents of the recording/CD has not at all been recorded. {Para 15}

16. The CD is a part of the record. At the stage of the arguments in these appeals, the CD was played in the Court. It is evident that the video recording commenced with the apprehension of the appellant. The CD contains the recording of the inspection of hut, recovery of the substance, the description of the substance and further part of the proceedings. The CD further contains the recording of the raid and recovery at the house of Shatrughna. The learned Judge was required to play the CD at the time of recording evidence of each witness and record the contents appearing on the screen with the help of the concerned witness. If this procedure had been followed, then the contents of the CD would have become legally admissible evidence. This procedure had not been followed. This has caused prejudice to the appellants as well as to the prosecution. The important evidence collected in the form of the video recording has not been converted into legally admissible evidence. In order to verify the correct factual position, at the stage of the argument of the appeals, the video recording was played. It was very difficult to understand the contents of the CD. If the evidence of the witnesses had been recorded on playing the video recording at the time of the evidence, then the oral testimony of the witnesses on oath, as to the contents of the CD would have been part of the record.

17. It is evident that in this case the detailed description of the ganja has not been recorded in the panchanama. Similarly, the detailed description of the ganja has not been stated by the witnesses. The substance seized from the possession of the appellant can be seen from the video recording. It was necessary to show this part of the recording to the witnesses and record the description of the substance in detail through each and every witness. In my view, this is a fundamental flaw in this case. The appellants could not be held responsible for this mistake or rather a mess. It was the responsibility of the learned prosecutor to insist before the learned Judge to play the CD when the witnesses were in the witness box. It was not done by the learned Prosecutor/ incharge of the case. Similarly, the learned Judge did not follow this procedure scrupulously. It seems that the learned Judge did not act diligently while recording the evidence of the witnesses with regard to the incident or a part of the incident video-graphed by the investigating officer. Learned Judge has observed in his judgment that there was no objection as such on the part of the appellants to this CD. In my view, this observation is totally perverse. This observation is not only against the appellants, but it is also against the prosecution. In this case, the required evidence as to the contents of the video recording or CD has not been properly recorded. There is a procedural error. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 449 of 2023 and 457 of 2024

Decided On: 25.10.2024

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

G.A. Sanap, J.

Citation: MANU/MH/7026/2024.

Print Page

Whether CD Evidence not accompanied by contemporaneous certificate as per S 65B of evidence Act is admissible?

 Relying upon the judgment in the case of Anwar P.V. (supra), this Court elaborated upon the mode of proving of electronic record by order dated 4-1-2016 passed in E.P. No. 24/2014 (Kamal Patel Vs Ramkishore Dogne, as hereunder:

"12. In the case at hand, the objectionable matter formed part of the speeches made in the public meetings convened by the respondent. Those speeches were recorded video-graphed by the Election Commission, presumably by using video cameras. Thereafter, the contents of the memory card of the video cameras must have been transferred to a computer and the CDs forming record of the Election Commission must have been prepared. Thus, even the so called original CDs in the record of the Election Commission, would not constitute primary electronic evidence of the speeches. Moreover, in the case at hand, the CDs supplied to the petitioner were copies of the record maintained in the Election Commission and annexures P/19 to P/25 are in fact the copies prepared from the copies supplied to the petitioner by the Election Commission. Thus, in order to ensure the source and authenticity of the electronic record, a contemporaneous certificate issued at the time of each transfer, in terms of section 65-B (4) of the Evidence Act, would be required because the Supreme Court has specifically held that in the case of CD, VCD, chip etc, the same shall be accompanied by the certificate in terms of section 65-B obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

13. In aforesaid view of the matter, no useful purpose would be served by indulging in the exercise of summoning the Returning Officer along with CDs/DVDs of annexures-P/19 to P/25 maintained by the Election Commission because even those CDs/DVDs would be inadmissible.

14. Coming to the second prayer regarding the Compact Discs sent to the Returning Officer along with complaint dated 19-11-2013, it may be noted that there is no pleading in the election petition as to who prepared the video recording of the flex hoarding displayed near State Bank of India and in what manner, using which instrument. However, by means of I.A.No.14043/2015, which would be considered in latter part of this order, the certificate on affidavit issued by one Santosh S/o Ram Narayan Agrawal is sought to be filed, stating that he had video-graphed the flex hoarding using his mobile phone. He transferred the video into his computer and prepared the Compact Disc furnished to the Returning Officer along with the complaint. However, it may be noted that aforesaid certificate is dated 21-10-2015; whereas the CD was prepared before 19-11-2013. Thus, the certificate now sought to be filed was not "obtained at the time of taking the electronic document" and is valueless for purpose of ensuring the source and authenticity of the contents of the Compact Disc. Thus, the second part of prayer can also not be allowed.

8. Reverting back to the facts of the case, we may note that the petitioner proposes to file five compact discs purportedly issued as certified copies of the record of the speeches made by respondent no.1 and maintained by the Returning Officer. In support of these compact disc, three certificates under Section 65-B of the Evidence Act have been filed. These may be found at page Nos 1, 3 and 436 of the documents proposed to be filed along with I.A.No.15554/2016.

9. Certificates at page No.1 and 3 do not bear any date. They are issued by the Proprietor of Abhishek Digital Colour Lab, Sidhi. The certificate at page no. 436 has been issued by Returning Officer of the concerned Vidhan Sabha Constituency. It is dated 16.9.2016.

10. As noted about, it has been held by this Court in the case of Kamal Patel (supra) that in order to ensure the source and authenticity of electronic record, a contemporaneously issued certificate is necessary. In the instant case, the videography was purportedly done by Abhishek Digital Colour Lab, Sidhi, by using viedo-cameras. Thus, the original electronic record was the memory card of the concerned video-camera. From the memory card, the electronic record must have been transferred to a computer and from the computer to the official compact disc maintained in the office of the Returning Officer. Thus, even the compact disc maintained in the office of Returning Officer was secondary evidence. From that compact disc, the certified copies of the compact disc must have been prepared and these certified copies have now been filed along with certificates as stated above.

11. Certificates at page Nos. 1 and 3 bear no date. They were filed in the Court on 18-11-2016. Thus, it cannot be said that they were issued contemporaneously at the time of transfer of record from memory card to the official compact disc. These subsequently procured certificates clearly constitute an attempt on the part of the petitioner to fill up the gaps in electronic evidence. The certificate issued by the returning officer only cover the second part of the transfer of electronic evidence, i.e., from official compact discs to the certified copies.

12. In aforesaid circumstances it cannot be said that the certificates filed by the petitioners by way of additional documents fulfill the requirements of section 65-B (4) of the Evidence Act. As such, the compact discs and certificates under section 65-B (4) filed therewith cannot be permitted to be taken on record. The admissibility of remaining documents in evidence shall be considered when they are tendered in evidence.

Madhya Pradesh High Court

Sharadendu Tiwari vs Ajay Arjun Singh on 17 January, 2017

Print Page

Procedure to be followed by defence for proving CD evidence

 In R.M. Malkani vs. State of Maharashtra (1973) 1 SCC 471 : 1973 (2) SCR 417, this Court
has observed that tape recorded conversation is admissible
provided first the conversation is relevant to the matters in
issue; secondly, there is identification of the voice; and,
thirdly, the accuracy of the tape recorded conversation is
proved by eliminating the possibility of erasing the tape record.
13. In Ziyauddin Barhanuddin Bukhari vs. Brijmohan
Ramdass Mehra and others (1976) 2 SCC 17 : 1975 (Supp) SCR 281, it was held by this Court that
tape-records of speeches were “documents”, as defined by
Section 3 of the Evidence Act, which stood on no different
footing than photographs, and that they were admissible in
evidence on satisfying the following conditions:

“(a) The voice of the person alleged to be speaking
must be duly identified by the maker of the
record or by others who know it.
(b) Accuracy of what was actually recorded had to
be proved by the maker of the record and
satisfactory evidence, direct or circumstantial,
had to be there so as to rule out possibilities of
tampering with the record.
(c) The subject-matter recorded had to be shown
to be relevant according to rules of relevancy
found in the Evidence Act.”
 In view of the definition of ‘document’ in Evidence Act,
and the law laid down by this Court, as discussed above, we
hold that the compact disc is also a document. It is not
necessary for the court to obtain admission or denial on a
document under sub-section (1) to Section 294 CrPC
personally from the accused or complainant or the witness.
The endorsement of admission or denial made by the counsel
for defence, on the document filed by the prosecution or on the
application/report with which same is filed, is sufficient
compliance of Section 294 CrPC. Similarly on a document
filed by the defence, endorsement of admission or denial by
the public prosecutor is sufficient and defence will have to
prove the document if not admitted by the prosecution. In
case it is admitted, it need not be formally proved, and can be
read in evidence. In a complaint case such an endorsement
can be made by the counsel for the complainant in respect of
document filed by the defence.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1525 OF 2015
(Arising out of S.L.P. (Crl.) No. 9151 of 2015)
Shamsher Singh Verma 
V
State of Haryana 
Citation; 2015ALLMR(Cri)4923, 2016CriLJ364, 2015(4)Crimes353(SC)

Print Page

Whether witness can be cross examined with reference to his previous statement in CD?

Now a previous statement recorded on tape is admissible in evidence, I do not understand as to how a compact disc, (CD), which is capable of containing not only the audio signal but also the video signal can be held to be inadmissible in evidence by mere reference to Section 145 of the Indian Evidence Act, 1872. It does not require an expert opinion to find that a CD records not only the statement made by a person or the conversation between the persons but also the live picture frames of the person making a statement or the persons engaged in conversation. In other words, a CD can contain record of not only the statement or conversation but also of the person or the actors who can be heard and seen as making statements. Thus, by all means, a CD can be said to be containing previous statements of the persons appearing therein and, therefore, by the application of the principle of law laid down in the Constitution Bench Judgment of the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra), the previous statements recorded in the CD would also be admissible in evidence. Therefore, I am of the view that the learned Additional Sessions has committed a serious error of law in not considering these aspects of the matter and refusing to apply the law laid down by the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others 

Equivalent Citation: 2015(2)BomCR(Cri)428

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application (APL) No. 124 of 2015

Decided On: 09.03.2015

 Munaf and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:S.B. Shukre, J.

Print Page

How to prove evidence of CD in Civil or matrimonial proceeding?

Equivalent Citation: 2011(2)ALLMR577, 2011(3)BomCR100, 2011(113)BOMLR479, 2011(3)MhLj564

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 8 of 2010 IN Suit No. 16 of 2008

Decided On: 28.01.2011

Mrs. Havovi Kersi Sethna Vs. Mr. Kersi Gustad Sethna

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Law of Evidence - Tape Recorded Conversation - Admissibility thereof in evidence - Held, it is settled law that tape recorded conversation is admissible in evidence. The appreciation of evidence would require consideration of three requirements; identification, relevancy and accuracy. It is left to the Defendant to pass those tests. If the tests are not passed, the tape recorded conversation would be of no use in effect ultimately. Notice of motion disposed of.

Law of Evidence - Sealing of recorded conversation - Recording of Evidence Tape Recorded Conversation - Held, the requirement of sealing the recorded conversation would not be applicable in this case. This is a civil trial. There is no question of sealing of a conversation recorded by a party to the civil lis himself. The sealing requirement is only in criminal trials. Notice of motion disposed of.

Tape recorded conversation is admissible in evidence provided the identification, relevancy and accuracy of same is proved.

Requirement of sealing of recorded conversation used as evidence is not applicable to a civil trial but is applicable only to a criminal trial.

Print Page

How to appreciate electronic evidence of CD in case of gang Rape?

As per the evidence of P.W. 19 Scientific Officer, who issued Ex. P-31 opinion, there is no morphing. Hence, the contention of the learned counsel for the accused that there is morphing in the C.D., in the light of evidence of P.W. 19 and in the absence of any motive on the part of P.W. 1 to implicate them, is liable to be rejected.

40. Further the contention of the learned counsel for the accused A-1 to A-10 is that the evidence of C.D. and the evidence of P.W. 19 are inadmissible in evidence under the provisions of Section 65-B of the Indian Evidence Act. He further contended that as there is no voice evidence on record to prove M.O. 7 is used by A-1 calling the other accused and further there is no material on record to show that M.O. 7 cell phone belongs to A-1, they cannot be convicted. In the present case, as noted above, the crime C.Ds. were sent to FSL and after scientific examination by P.W. 19 with the assistance of other officers, opined that there is no morphing and issued Ex. P-31 and this circumstance corroborates the oral testimony of P.W. 1. The seizure of M.O. 7 from A-1 was made as per his confession in the presence of panch witness P.W. 13, who supported the case of the prosecution. Apart from confession, the other circumstances, particularly the evidence of P.W. 19, who issued Ex. P-31 report based on scientific examination and the consistence evidence of P.W. 1, which is inspiring confidence and in the absence of any motive for P.W. 1 to implicate the accused, the contention of the learned counsel for these accused, merits for rejection.

Equivalent Citation: 2015 (3) ALT (Crl.) 91 (A.P.),2015(4)crimes343 AP

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

Crl. A. Nos. 576, 586 and 588 of 2010

Decided On: 08.04.2015

 Peddi Phani Kumar and Ors.
Vs.
 State of A.P.

Coram:G. Chandraiah and M.S.K. Jaiswal, JJ.

Print Page

Whether CDR report is admissible in evidence in absence of certificate as per S 65B of evidence Act?

On CDR, learned counsel for accused No.1 strenuously submitted that there is no compliance of the mandatory provisions of Section 65B of the Indian Evidence Act and therefore, CDR reports cannot be admitted in evidence. In support, Shri Khamkar, learned counsel placed vehement reliance on Anvar P. V. Vs. P. K. Basheer and others 7. In this case, the Hon'ble Supreme Court overruled its previous decision in AIR 2005 SC 3820 and held in para 19 & 22 as under:-

"19. Proof of electronic record is a special provision introduced by the IT Actamending various provisions under the Evidence Act. The very caption of Section 65Aof the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law under Sections 63 and 65 has to yield."

"22. The evidence relating to electronic record, as 7 AIR 2015 Supreme Court 180 42 of 51 crapl 432.12 Group.doc noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note ofSections 59 and 65A dealing with the admissibility of electronic record. Sections 63and 65 have no application in the case of secondary evidence by way of electronic record;

the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65Bobtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."

Bombay High Court

Balasaheb Gurling Todkari And Ors vs The State Of Maharashtra on 9 June, 2015

       CORAM :-  SMT. V. K. TAHILRAMANI AND
                          INDIRA K. JAIN, JJ.

 Citation: 2015ALLMR(Cri)3464, 2015(3)BomCR(Cri)51

Print Page

Whether it is necessary to seal required conversation of CD in civil case?

Documentary evidence requirement of sealing the required conversation of CD is of essense in cirminal case. Such Procedure not required to be followed in civil trial.

Bombay High Court

Mrs.Havovi Kersi Sethna vs Mr.Kersi Gustad Sethna on 28 January, 2011

Bench: R. S. Dalvi

Citation: 2011(3) Bom CR 100

Print Page