[1951] EACA 283

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY, Ag. President, LOCKHART-SMITH, Ag. Vice-President, and SINCLAIR, Ag. C. J. (Tanganyika)

KAPOOR SINGH s/o HARNAM SINGH, Appellant (Original Accused)

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REX, Respondent (Original Prosecutor)

Criminal Appeal No. 166 of 1951

(Appeal from the decision of H. M. High Court of Tanganyika—Knight, J.)

Unlawful possession of gold—Admissibility of Government Assayer's Certificate— Disclosure of informer's identity—section 125, Indian Evidence Act.

The appellant was convicted of unlawful possession of raw gold. The Police received information that the appellant was thought to be in possession of gold and searched him. A small quantity of ore in "pebble" form was found on the accused. At the trial the prosecution tendered without objection by the defence a certificate headed "certificate of analysis" and signed by a Government Assayer of the Geological Division of the Department of Lands and Mines. At the trial the defence attempted to obtain the name of the person who had given information to the Police relating to the appellant's possession of the gold—the Magistrate held this need not be given.

Held (30-10-51).—(1) Section 154 (4) of the Criminal Procedure Code is merely an enabling section authorizing the reception of evidence of the report of a Government Analyst and dispensing with formal proof of the signature to such proof. Section 12, Assayers<br>Ordinance. An assayer's certificate is admissible in evidence subject to objection raised<br>at the time of production.

(2) Section 125, Indian Evidence Act, is clear and mandatory and leaves no discretion to the Court to compel a police officer to say whence he got information as to the commission of any offence. The English practice and procedure does not apply.

Appeal dismissed.

Cases referred to: McCulloch v. Hannam (1951) 1 A. E. R. 402; Marks v. Beyfus 25 Q. B. D. 494; Rex v. William Jones 21 C. A. R. 27.

Master with Vellani for appellant.

Summerfield, Crown Counsel, Tanganyika, for the Crown.

JUDGMENT.—The appellant was convicted in the District Court of Chunya District of the offence of unlawful possession of 1.4 oz. of raw gold, valued at Sh. 350, contrary to section 8 of the Gold Trading Ordinance (Cap. 127 of the Laws of Tanganyika, 1947) and punishable under section 14 of that Ordinance. Section 8 of the Ordinance provides: —

"If any raw gold is found in the possession, power, or control of any person, that person shall, unless he proves that he obtained it lawfully, be guilty of an offence against this Ordinance."

The facts found by the trial Magistrate, so far as material at this stage to an understanding of the case, are that on 15th February of this year Mr. Ellis, an Assistant Superintendent of Police stationed at Chunya, received information that the appellant was thought to be in unlawful possession of gold and would be leaving Saza Mine (which we understand to be a gold mine), for Singida that day. Acting on this information Mr. Ellis went to the appellant's house, which is on or near Saza Mine, and found the accused sitting in the cab of a truck. The appellant was called out of the truck and searched, and in the left breast pocket of his shirt was found a small quantity of ore in "pebble" form, which the Magistrate found, on the evidence, to contain 1.4 oz. of raw gold. Raw gold is defined in the Gold Trading Ordinance as meaning "gold in the raw state, and includes unrefined gold, amalgam, slimes and scrapings, and smelted gold which is not manufactured into an article of commerce". The appellant on being asked by Mr. Ellis for an explanation of his possession of this ore replied that it was not his property but that a Greek had given it to him and that he, the appellant, had given the Greek five bags of maize flour. At the trial, however, the explanation offered by the appellant was that he was so drunk at the time that he had no knowledge of how the ore in question had got into his pocket. coupled with a suggestion that one Moloo Ladha had "planted" the gold on him.

An appeal from this conviction was brought in the High Court of Tanganyika but was dismissed and the appellant now appeals to this Court on the grounds—

- (1) that the learned Judge of the High Court erred in upholding the conviction on the certificate of a Government Assayer that the piece of ore found in the possession of the appellant by the Police was raw gold; - (2) that he should have held that there was no evidence that the Government Assaver is a Government analyst as defined in section 154 of the Criminal Procedure Code (Cap. 20 of the Laws of Tanganyika); - (3) that he should have held that it was necessary for the investigation of the truth of the case to compel the disclosure of the identity of the informant and the source of the information, or that the trial Court should have ascertained the name of the informant and the source of the information: - (4) that he should have held that the trial Court had erred in convicting the appellant without finding that the possession was coupled with *animus* possidendi.

This last ground of appeal appears to be based upon a misapprehension of what the learned Magistrate's findings really were. He accepted the evidence of the prosecution that the appellant put his hand over his left breast shirt pocket as soon as he saw Mr. Ellis and his party approaching, and, after taking some currency notes out of his pocket, covered it up with his hand, and that when Mr. Ellis wanted to search that pocket the appellant struggled, and that the Police had to hold him by the arms. On this the learned Magistrate comments:-

"All of this shows that accused knew what he was doing at the time."

He considered and rejected the appellant's story that he was so drunk that it was possible for Moloo Ladha to have planted the packet of gold in his shirt pocket, underneath his sweater, without his knowledge. These findings are in effect a finding that the appellant was in "conscious possession" of the gold, in other words, that he had *animus possidendi*. These findings were confirmed on appeal to the High Court and as there was evidence to support them, they are not open to review in this Court.

The third ground of appeal as set out above refers to an attempt made by counsel for the defence at the trial to obtain from Mr. Ellis the name of the person who had given him the information relating to the appellant's possession of gold. Mr. Ellis was asked what was the race of the informer and replied that he did not wish to answer that question, and the learned Magistrate held that he need not do so. The relative section is section 125 of the Indian Evidence Act, which is in force in the Territory, and which, so far as is material to this appeal, reads:-

"No Magistrate or Police Officer shall be compelled to say whence he got any information as to the commission of any offence."

In support of this ground of appeal Mr. Master cited the English cases of Marks v. Beyfus, 25 Q. B. D. 494, and Rex v. William Jones, 21 C. A. R. 27. He also referred to section 3 and section 247 of the Criminal Procedure Code of Tanganyika and to section 17 (2) of the Tanganyika Order in Council, 1920, in support of his submission that these provisions, the general effect of which is that the practice and procedure of the criminal courts in England shall be followed in the High Court of the Territory, override the particular provisions of section 125 of the Indian Evidence Act and therefore enable this Court to apply the English rule as to the disclosure of the name of an informant as laid down in Marks $v$ . Beyfus (supra). In our view, however, this proposition is unsound. Section 125 of the Indian Evidence Act is clear and mandatory and in our view leaves no discretion to the Court. We were referred to a passage in Sarkar's Commentary on the Indian Evidence Act, 7th edition, page 1203. Under the heading "Limitations of the Rule (4)" appears the following comment: $-$

"Even where the privilege is strictly applicable the trial court may compel disclosure, if it appears necessary in order to avoid the risk of false testimony or to secure useful testimony."

But the authority cited for this is Marks v. Beyfus (supra) and in our view this is inconsistent with the specific provisions of the section. We think that the effect of the sections is more correctly stated in Woodroffe and Ameer Ali on the Law of Evidence applicable to British India, 9th edition, page 934, as follows: -

"The court has under this section apparently no discretion to compel an answer even if it consider disclosure necessary to show the innocence of the accused."

It follows therefore that there is no merit in this ground of appeal.

The first and second grounds of appeal relate to part of the evidence adduced at the trial to establish the fact that the ore found in the appellant's possession contained 1.4 oz. of raw gold. The first expert evidence on this question was given by Mr. Pickering (P. W. 2), the Regional Mines Officer stationed at Chunya, who examined the ore (exhibit A) in Court and gave it as his opinion that the exhibit was raw alluvial gold weighing 1.529 oz. Mr. Pickering was subsequently recalled for cross-examination by the defence in the course of which he said that he was a mining engineer and formed his opinion purely by his familiarity with gold. Counsel conducting the prosecution then stated that he intended to have the gold (exhibit A) assayed and at a subsequent hearing the prosecution tendered and put in evidence, without objection by counsel for the defence, a certificate (exhibit E) headed "Certificate of Analysis" and signed by a Government Assayer of the Geological Division of the laboratory service of the Tanganyika Territory Department of Lands and Mines. The material portions of this certificate read as follows: -

"The exhibit is gold and comes within the definition of 'raw gold' as laid down in the Gold Trading Ordinance.

The weight is $1.528$ oz. troy of which about 1.4 oz. is gold. The value of 1.4 oz. is Sh. 350.

Only an approximate gold content can be given as accurate determination involves the destruction of the identity of the exhibit.

Of the remainder about $7.3$ per cent is silver and $0.7$ per cent base metals.

This composition agrees very well with that of an alluvial gold, and bears no resemblance to any jewellery alloy; apart from this it is impossible to say whether this gold has ever been smelted.

Whether or not it has ever been smelted in no way affects the above statement that it is raw gold.

It is given as a considered opinion that the exhibit is alluvial gold."

Mr. Master's first objection to this certificate is that it was inadmissible for the reason that it did not appear *ex facie* that the person signing it was a "Government Analyst" within the scope of the definition in section 154 (4) of the Criminal Procedure Code of Tanganyika. The answer to this objection is that section 154 is merely an enabling section authorizing the reception in evidence of the report of a Government Analyst and dispensing with formal proof of the signature to such report. It does not preclude the prosecution or the defence from proving the nature of an exhibit by other expert evidence.

Section 12 of the Assayers Ordinance (Cap. 128 of the Laws of Tanganyika, 1947) provides: $\rightarrow$

"An assay certificate purporting to be signed by a Government Assayer or by the holder of a general assayer's licence issued under this Ordinance shall be admissible in evidence without further proof in any court and shall be prima facie evidence of the facts stated therein:

Provided that the court may in its discretion summon as a witness the assayer who signed the certificate."

In section 2 of the same Ordinance assaying is defined as: $-$

"The determination of the proportion of the mineral constituents of any ore or mineral substance." and

"Assaver" is to be construed accordingly.

Mineral constituent is defined as meaning: $-$

"Any chemical element, compound or radical in any ore or mineral substance."

Mr. Master has therefore contended that an assayer's certificate is only admissible as prima facie evidence of the mathematical proportions of the constituents of the substance assayed and is not evidence of what those constituents are. In other words, it is evidence that the substance consists of so much per cent of x and so much per cent of y, but is no evidence of what x and y are. We must confess to a feeling of bewilderment at the suggestion that an assayer can certify how much there is of $x$ in the exhibit and how much of $y$ without being qualified to say what $x$ and $y$ respectively are. We understood, however, that Mr. Master conceded in the instant case that it was competent for the assayer to certify that exhibit $A$ contained 1.4 oz. of gold but not that it was raw gold as defined, since his duty is only to make a quantitive analysis and not a qualitative one. The objection, however, in our opinion, if it has any merit at all, goes only to the weight and not to the admissibility of the evidence. As was recently pointed out by a Divisional Court of the King's Bench in McCulloch v. Hannam (1951), All E. R. 402 (a case relating to an analyst's certificate of a sample of milk with added water) everything which the analyst states with regard to his analysis is a matter of opinion and cannot be more than that. The weight to be accorded to the opinions of experts, as of any other evidence, is primarily

a matter for the court of trial, and therefore objections which go to the weight should be made at the trial. In the instant case no such objection was made, although counsel for the defence had indicated by his cross-examination of Mr. Pickering that he intended to attack the weight which might properly be attached to that officer's opinion. It is apparent from the record, however, that during the course of the trial it was not really in dispute that exhibit A was raw gold. Witnesses and counsel for the defence accepted this as a fact and the real defence put forward was that the appellant, though in physical possession of exhibit A, was not in "conscious possession" of it.

In our view, therefore, the certificate of the assayer was admissible in evidence and any objection to the opinion as stated therein should have been made at the time of its production when, if necessary, the assayer could have been called as a witness and examined or cross-examined.

For these reasons this appeal failed on all grounds as we indicated at the close of the argument, and was dismissed.

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