R.C. Kathuria, J.
1. Jarmanjit Singh and Balwant Singh, petitioners seek quashing of FIR No. 131 dated 7.12.2001 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'') with Police Station, Mamdot, District Ferozepur.
2. The facts of the case have to be noticed briefly in order to focus the controversy involved. SubInspector Trilochan Singh along with ASI Jaswant Rai, ASI Jaswinder Pal and other police officials was proceeding on patrol duty in Government vehicle bearing No. PB05D9850 driven by Sewa Singh. After the police party had reached near Canal Bridge, main road, Fazilka in the area of Village Lakhoke, a secret information was received by Sub Inspector Trilochan Singh to the effect that Balwant Singh son of Karnail Singh resident of Village Jattalla, Police Station, Mamdot was engaged in illegal business of contraband and had proceeded to Rajasthan during the night time in a Maruti car bearing No. DDU2486 for bringing poppy husk and would return to his village during the morning time. Finding this information credible, a Nakabandi was arranged by SubInspector Trilochan Singh at about 5.15 a.m. on the road which goes from Village Jattalla. At about 7.00 a.m., the police party noticed a car coming from the side of Village Lakhoke. Seeing the police party, driver of the car stopped the car on the bridge and came out of it. After coming out of the car, he ran towards the pavement of the canals on the eastern side. With the help of other officials, the car was encircled. On checking the car, Balwant Singh son of Karnail Singh, resident of village Jattalla was found sitting inside. Balwant Singh disclosed the name of his companion as Jarmanjit Singh, who was successful in making good his escape. SubInspector Trilochan Singh then informed Balwant Singh that he had suspicion that the former was carrying poppy husk in the car and the former informed him that his search could be conducted before a Magistrate or some gazetted officer or before him. Balwant Singh in turn informed him that the car be searched before a gazetted officer. Thereafter memo in this regard was prepared which was attested by Balwant Singh, accused and ASI Jaswant Rai and ASI Jaswinder Pal Singh. Hardev Singh, DSP was contacted on wireless and he reached the spot at 8.15 a.m. in government Gypsy. A separate consent memo was prepared by DSP and thereafter search of the car in question was conducted which led to the recovery of two bags containing poppy husk. One bag was found under the feet of Balwant Singh and another bag was kept in the dicky of the car. Each bag was found containing 30 kgs. of poppy husk. Two samples of 200 grams each were separated from each bag and thereafter samples and bags containing residue poppy husk were sealed with the seals of `MS'' and `HS'' and thereafter taken into possession vide seizure memo prepared in this regard. Ruqa was transmitted to the police station on the basis of which present case was registered. Sample was sent to the Chemical Examiner at Government Laboratory, Jalandhar for analysis. The Assistant Chemical Examiner, Government of Punjab in his report stated that analysis indicated that the contents of the exhibits were not poppy husk. Thereafter, the second sample was sent to the Forensic Science Laboratory, Chandigarh on 30.1.2001 by Sub Inspector Arjun Singh, S.H.O. of Police Station, Mamdot through Constable Baldev Singh. On analysis, the contents were found to be poppy straw. On completion of the investigation challan was put in Court on 21.3.2002. Taking into consideration the police report submitted under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code'') and the documents annexed therewith charge under Section 15 of the Act was framed against the petitionersaccused by the Court of Special Judge, Ferozepur and thereafter the case was posted for prosecution evidence. It is at this stage the present petition had been filed seeking quashing of the FIR in question.
3. I heard counsel for the petitioneraccused as well as the State counsel at length.
4. Learned counsel representing the petitionersaccused while seeking quashing of the FIR in question strenuously urged before me that after the contents of the samples which were sent to the Chemical Examiner, Government Laboratory, Jalandhar were, on analysis, found to be not poppy husk, S.H.O. Arjun Singh of Police Station, Mamdot could not have sent the second sample to Central Forensic Science Laboratory, Chandigarh and got a fresh report and on that basis launched the prosecution against the petitionersaccused. The action of SubInspector Arjun Singh, SHO of Police Station, Mamdot for getting the second sample analysed from the Central Forensic Laboratory, Chandigarh was questioned on two counts. Firstly, that no permission of Court was sought during the investigation of the case for sending the second sample to the Central Forensic Science Laboratory, Chandigarh. Secondly, that there is no provision under the Act akin to the provisions of Section 13 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as `the Act of 1954'') and other similar enactments under which a right has been conferred upon the prosecution as well as the accused to get another sample analysed from another approved laboratory. Therefore, filing of the report and launching of the proceedings stood vitiated. In support of the stand taken reliance was placed on Joginder Kaur v. The State of Punjab, 1979 C.L.R. 101 and Sukhdev Singh v. The State of Punjab, 1982 Criminal Law Times 267.
5. Opposing the submissions made, it has been contended by the State counsel that after the negative report of the sample sent to the Chemical Examiner, Jalandhar was received, S.H.O. Arjun Singh had sent another sample which had been seized at the spot to the Central Forensic Science Laboratory, Chandigarh for analysis which action of the SHO is not prohibited under the law because as per circular order No. 9 issued by the Additional Director General (Crimes), Punjab, Chandigarh, copy of which is AnnexureP.1, such a recourse is permissible and thus no illegality of procedure or law had been committed by him. It was also pointed out by him that on reanaylsis the contents were found to be poppy husk and thereafter challan was put in Court and taking into consideration the report of the Central Forensic Science Laboratory, Chandigarh, the charge was framed by the Special Judge, Ferozepur which was fully justified under the circumstances of the case.
6. In order to appreciate the submissions made a notice has to be taken in detail of various provisions of the Act as amended from time to time which have bearing on the controversy raised. Though the provisions of the Act form a Code in itself but whole gamut of procedural requirements have not been covered under these provisions. It is for that reason Section 51 of the Act expressly provides that provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as these are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. There is no specific provision in the Act which lays down that contraband articles seized in terms of the provisions of this Act shall be sent for analysis to the Chemical Examiner of the State or any other Central Forensic Science Laboratory. Rule 2(c) of the Norcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as `the Rules'') which have been framed by the Central Government in exercise of the power conferred under Section 9 read with Section 76 of the Act states that "Chemical Examiner" means the Chemical Examiner or Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or, as the case may be, Ghazipur. The role of the Chemical Examiner in terms of the above rule has been confined to matters covered by the Rules and for that reason the State Government resorts to get the contraband articles analysed from the Chemical Examiner of the State. The report furnished by the State Chemical Examiner is admissible under the provisions of Section 293 of the Code because there is no provision in the Act on the basis of which it can be construed that obtaining of the report of the Chemical Examiner will be inconsistent with the provisions of the Act. Therefore, applicability of Section 293 of the Code for the purpose of receiving the report of the Chemical Examiner as evidence being the opinion of the Expert appointed by the State Government for the purpose of the Act hs never been questioned.
7. In Murli Dhar v. State of Haryana, 1990(3) RCR(Crl.) 656, a Division Bench of this Court had held that in view of Section 51 of the Act, the provisions of the Code shall apply in so far as these are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under this Act and any action taken contrary to the provisions of the Act would not be saved under Section 156 of the Code which power of the Executive Police is ousted, curtailed and controlled by the provisions of the Act. Accordingly, it was concluded that the provision of the Code would apply only to the extent these are not inconsistent with the provisions of the Act. Therefore, in the absence of any specific provision in the Act, the Chemical Examiner appointed by the State Government conduct the chemical examination of the sample and his report in discharge of his duties as Chemical Examiner is admissible in evidence in view of the provisions contained in Section 293 of the Code.
8. In Ruban Joseph v. State, 1993 Cri.L.J. 2138, report of the Assistant Director of Chemistry, Forensic Science Laboratory, who had analysed the sample of opium was accepted as a report of the Expert under Section 293(4)(e) of the Code in absence of any specific provision in this regard in the Act. It was held that he was competent to analyse and certify as to the nature of the substance and his opinion can be used as evidence under Section 293 of the Code.
9. In the instant case the petitioner has not taken any objection to the report of the Chemical examiner, Jalandhar. Rather, on the basis of his finding arrived at in the analysis report, the petitioner has sought the quashment of FIR in question. It means that despite there being no specific provision in the Act regarding the analysis to be done by the Chemical Examiner, the acceptance of the report submitted by Chemical Examiner of the State Government, Jalandhar, has not been challenged by the petitioner. Manifestly, there is no bar in the Act that another sample which was drawn at the time of seizure of poppy husk cannot be sent for reanalysis by the Central Forensic Science Laboratory, Chandigarh because the report of such laboratory has to be construed as the report of the expert which would fall in the ambit of Section 293(4)(e) of the Code. The reference made from the side of the petitioneraccused to the provisions of Section 13 of the Act of 1954 is misplaced because Section 11(1)(c)(i) cast a duty on the Food Inspector to send one of the packets of the sample obtained for analysis to the Public Analyst under intimation to the Local Health Authority. Section 13 of the Act of 1954 envisages different situation under which Local Health Authority has the cause against whom prosecution has been launched under the Act to get the sample of article of food kept by the Local Health Authority analysed by the Central Food Laboratory.
10. Narcotic Control Bureau, New Delhi has issued Standing Instruction No. 1/88 dated 15.3.1988 in relation to drawal, storage, testing and disposal of samples seized under the Act and procedure to be followed in this regard. Para 1.3 of the instructions stated that :
"1.3. All illicit narcotic drugs or psychotropic substances recovered from a person, place, conveyance etc. are material evidence as they are liable to confiscation. Further, they constitute primary evidence for any act, omission or commission on the part of a person rendering him liable for punishment under Chapter IV of the N.D.P.S Act, 1985. Most of the narcotic drugs and psychotropic substances cannot be conclusively proved to be such drug or substances merely by visual examination in the trial Court and they require to be ............. (not legible) .............. to be conducted by chemists authorised under Section 293 of C.P.C. 1973."
11. Para 1.5 of the above instructions further provides as under :
"1.5. Place and time of drawal of sample :
Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot."
12. Para 1.21 deals with the custody of the duplicate sample and also states as under :
"1.21. Custody of duplicate sample :
Duplicate sample of all seized narcotic drugs and psychotropic substances must be preserved and kept safely in the custody of the Investigating Officer alongwith the case property. Normally duplicate sample may not be used but in case of loss of original sample in transit or otherwise or on account of trial court passing an order for a second test, the duplicate sample will be utilised."
13. Other instructions contained in Standing Instruction No. 1/88 dated 15.3.1988 need not be noticed because they have no bearing to the present controversy. After the above stated instructions were issued, new Section 52A was inserted by Section 14 of the Act and Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1989, (Act 2 of 1989) which came into force w.e.f. 29.5.1989 (hereinafter referred to as `the amended Act''), the same reads as under :
"52A. Disposal of seized narcotic drugs and psychotropic substances. (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the official Gazette specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officerincharge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or substances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
14. The provisions of above Section are somewhat analogous to Section 110 of the Customs Act, 1962. It appears that Section 52A of the amended Act was incorporated into the Act by the Amending Act of 1989 with a definite purpose with regard to the expeditious disposal of the seized narcotic drugs and psychotropic substances even before the stage of trial. The procedure prescribed under Section 52A(2) of the Act has to be followed with regard to the preparation of inventory certificate by the Magistrate regarding the correctness of the inventory taken in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or drawing representative samples of such drugs or substances. In order to comply with the purport and spirit of the amended provisions of Section 52A of the Act the Central Government in exercise of the powers conferred by sub section (1) of Section 52A, having regard to the hazardous nature, vulnerability, theft, substitution and constraints of proper space, issued the notification No. 381(E) dated 29.5.1989, specifying the following narcotic drugs and psychotropic substances, namely :
"1. Narcotic Drugs :
(i) Opium; (ii) Morphine; (iii) Heroin; (iv) Ganja; (v) Hashish; (vi) Codein; (vii) Thebaine; (viii) Cocaine; (ix) Poppy straw and any other manufactured drug as defined under clause (xi) of Section 2 of the Act.
2. Psychotropic Substances :
(i) Methaqualone; (ii) T.H.C.; (iii) Amphetamine; and (iv) any other psychotropic substances as defined under clause (xxiii) of Section 2 of the said Act."
15. So as to regulate and determine the manner in which the narcotic drugs and psychotropic substances as specified in notification S.O. No. 381(E) dated 29.5.1989, the Central Government published Circular JUDGMENT No. 9 prescribing a detailed procedure in this regard. Copy of the same has been placed on record as AnnexureR1 on behalf of the respondents. Apart from prescribing the quantity to be drawn in each sample for chemical test instead of narcotic drugs and psychotropic substances detailed therein it has been stated that in case of seizure of a single package or container, one sample in duplicate shall be drawn. It is also mentioned therein that normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. At this stage the procedure prescribed in SectionIV with regard to the action to be taken by police and other empowered officers for pretrial disposal needs to be noticed which is contained in clauses 4.0 to 4.7 of Circular JUDGMENT No. 9 and is as under :
"4.0. Where any narcotic drug or psychotropic substance has been seized and forwarded to the officerincharge of the nearest police station to the officer empowered under Section 53, the officer, referred to in paragraph 33 of the order shall prepare an inventory of such narcotic drugs or psychotropic substance containing such details relating to their description, quality, quantity, mode of packing, marks, number of such other identifying particulars of the narcotic drugs or psychotropic substances for the packing in which they are packed, country or origin and such other particulars as may be considered....... relevant to the identity of the aforesaid drugs in any proceedings under the Act and make an application to any Magistrate for the purpose of :
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representatives samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
4.1. Where an application is made under subsection (2) of Section 52A of the Act, the Magistrate shall as soon as may be allow the application.
4.2. Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs, or narcotics drugs or psychotropic substances and any list of samples drawn under subsection (2) ibid and certified by the Magistrate as primary evidence in respect of such offence.
4.3. While preferring application under Section 52A to any Magistrate, any basis may be laid on "expediency of disposal". The grounds that may be highlighted may pertain to:
(i) risk of pilferage, theft and substitution;
(ii) constraints of storage and hazardous nature;
(iii) high potestical and valacrability of abuse;
(iv) high tentations to traffickers;
(v) diminution in the value of other articles (including conveyance), due to long storage, etc.
4.4. Since the filing of chargesheet/complaint is a condition precedent for expeditious issue of orders for pretrial disposal, complaints by the respective enforcement agencies must be filled after completion of investigation within the stipulated period of 90 days of seizure/arrest, on a priority basis. This requires to be meticulously adhered to.
4.5. While moving the application under subsection (2) of Section 52A of the Act as above, production of all seized articles/drugs, etc. along with the panchnama (in original) and detailed inventory thereof is essential. The inventory shall be complete in all respect and contain such particulars, as may be relevant to establish nexus/identity of articles. The chemical analysis report should also be simultaneously filed.
4.6. After the court orders are passed for pretrial disposal of drugs, those drugs which have no legitimate value (excepting opium, morphine, codeine and thebaine, which are required to be transferred to the Government Opium and Alkaloid Works, Undertaking at Ghazipur or Neemuch, as the case may be) are required to be destroyed consistent with the guidelines issued under the order and not repugnant to the Court''s order.
4.7. As bulk of seizure of drugs relates to illicit import or export and are made at the points of entry or exit or in transit traffic, such drugs are liable to seizure under Section 110 of the Customs Act, 1962 and confiscation under Section 111 or 113 ibid. In such cases, it would be appropriate to initiate proceedings under the Customs Act also."
16. Thus, statutory provisions of Section 52A of the Act envisage active and meaningful involvement of the Magistrate at the stage of investigation even before the trial of case begins.
17. What value should be attached to the guidelines issued by the Central Government came to be discussed in case Khet Singh v. Union of India, 2002(2) RCR(Crl.) 277 (SC) : JT 2002(3) SC 208, wherein notice was taken of the clause 1.5 of Standing Instruction No. 1/88 dated 15.3.1988 issued by the Narcotics Control Bureau, New Delhi as well as clause 3.8 of Standing JUDGMENT No. 2/88. In para 10 of the judgment at page 212, it was observed as under :
"The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer incharge of the investigation of the crimes coming with the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer incharge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody."
18. It was further observed in para 16 of the judgment as follows :
"Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence."
19. The above quoted observations would clearly indicate that though the Apex Court had laid down that these instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer incharge of the investigation of the crime under the Act but at the same time where any procedural illegality is committed in the search and seizure, it would not be a sufficient ground to render the evidence inadmissible. Rather, a duty has been cast upon the Court to find out whether serious prejudice has resulted to the accused where noncompliance of the procedure has been done by the Investigating Officer.
20. Reverting to the controversy raised in the present case, it is manifest from the above quoted standing instructions dated 15.3.1988 issued by the Narcotics Control Bureau, New Delhi that in the situation contemplated in clause 1.21, the second sample can be sent for analysis in case of loss of original sample in transit or otherwise on account of trial Court passing an order for a second test for which duplicate sample has to be utilised. These guidelines do not envisage that to dislodge the report of Chemical Examiner already obtained and available on record, the second sample can be got analysed by the accused. In this case the second sample has been sent by the Investigating Officer at the stage of investigation and before submitting the police report under Section 173 of the Code without getting the permission of Court, which recourse is unwarranted under the circumstances of the case.
21. In Vishwas Bhosle, Assistant Collector of Customs v. Onyekwo Felix Nwafar and another, 1995(2) Cr.L.J. 769, brown sugar weighing 8 kgs., valued at Rs. 16 lakhs were seized from the person of the respondentaccused on 19.7.1988 while he was in process of boarding the flight for Adis Ababa. For the recovery made he was prosecuted and charge under Section 8(c) read with Section 21, Section 8(c) read with Sections 5, 28 and 23 of the Act and under Section 135(1)(a) read with Section 135(1)(ii) of the Customs Act, 1962 was framed against him. The trial of the case started on 21.6.1993. Five witnesses of the prosecution were examined. When a panch witness was being examined, the prosecution noticed that the sample remnant was not produced in the Court and for that reason it was not shown to the witnesses and could not be identified by them. On enquiry the prosecution was informed by the Custom Officer that the sample remnant was kept in the custom godown and the same came to be destroyed under Section 52A of the Act. Prosecution was also informed by the Custom Officer that the remnant received from the Chemical Analyser along with his report which was kept along with seized Muddemal had also been destroyed and, therefore, it could not be produced in Court during the course of examinationinchief of panch witnesses. Under these circumstances, though the report of the Chemical Analyser, was on the record, but in absence of the sample the prosecution was not in a position to examine the Chemical Analyser in support of his report and prove the same. It is at this stage the Public Prosecutor moved an application to the Court with the request to allow the prosecution to get the sample which was collected by the Magistrate from the seized Muddemal under Section 52A of the Act and had been retained by the Magistrate in Court room to send it to the Chemical Analyser and obtain fresh report of the same in the interest of fair trial and interest of justice. This application was opposed on behalf of the accused. The Judge vide order dated 4.8.1993 came to the conclusion that sending the sample which was collected in the presence of Special Metropolitan Magistrate in compliance of Section 52A of the Act would be reopening the investigation which cannot be permitted under the law. It is thereafter the revisional jurisdiction of the High Court was invoked under Section 482 of the Code. Taking notice of the provision of Section 52A of the Act and provisions of Sections 311 and 482 of the Code coupled with the dictum of law laid down in State of Karnataka v. L. Muniswamy and others, AIR 1977 SC 1489; State, Delhi Administration v. Pali Rama, AIR 1979 SC 14 and Mohanlal Shamji Soni v. Union of India and another, 1991(3) RCR(Criminal) 182 (SC) : AIR 1991 SC 1346, it was observed in paras 8 and 9 of the judgment as under :
"8. I think this is a fit case wherein High Court should exercise its inherent power conferred under Section 482 of the Criminal Procedure Code, enabling the Prosecutor to complete the missing link between the substance seized and the Chemical Analyser''s report or the same seized subsequently. In the case of Delhi Administration (supra), it has been observed that to obtain expert''s opinion would not amount to filling up the gap in the prosecution case. The alleged offence is a very serious offence not against the State but against the human race capable of killing not one or two individuals but in mass. The seized contraband would have been successfully distributed amongst the consumers. Therefore, with a view to achieve satisfactory public purpose, it is undoubtedly the duty of the Court to secure the ends of justice by legal means.
9. In view of the above observations, I allow this application, set aside the order of the Special Judge dated 4th July, 1993 and the learned Special Judge is directed to send Article 15 to the Chemical Analyser and obtain his opinion. On receiving the opinion, the Prosecutor as well as the accused be allowed to examine the Chemical Analyser according to law."
22. The observations made in the above case is a pointer to the fact that another sample was ordered to be drawn from the residue brown sugar during the trial of the case. Thus, the Court in the interest of fair trial and larger public interest had allowed another sample to be analysed by the Chemical Analyser.
23. Somewhat different question arose in Joginder Kaur v. State of Punjab (supra), wherein the facts were that 5 kgs. and 800 Grams of opium was recovered from the possession of the petitioneraccused. A representative sample out of the aforesaid bulk of opium was sent to the Chemical Examiner of the Punjab who opined that the substance sent to him was opium. During the trial of the case accused moved an application for sending additional sample to the public analyst for expert opinion. While rejecting his contention, it was observed in para 12 of the judgment as under :
"12. In regard to the experts whose reports have been made admissible in law as piece of evidence by the aforesaid provisions of the Criminal Procedure Code, the only right that the accused has, is to request the Court to call the expert for crossexamination and then test his competency as an expert or to have any vagueness in the report clarified. By doing so, the accused can create doubt in the competency of the Analyst or expose the vagueness of the report and thus erode the evidentiary value of the report, or for that matter, of the evidence of the expert. The accused also have a right to examine an expert witness of his choice to challenge the opinion expressed by the expert (on whose report or testimony the prosecution relies) on the basis of the facts found by him. He can also rebut the said opinion with the aid of the authoritative text books. However, what is not open to an accused in such cases is to have the facts found again either by the same expert or by another expert. Such a right does not exist in abstract. In cases where the law makers have felt the necessity of conferring such a right on an accused they have expressly provided therefor, as is the case in regard to the cases arising under the Prevention of Food Adulteration Act, where under Section 13, which is in the following terms, an express right has been conferred on an accused to have the other sample sent to the Director of the Central Food Laboratory, who is a superior authority and whose opinion has expressly rendered conclusive superseding the one expressed by the State Public Analyst."
24. It was further stated in the above mentioned judgment that no right analogous to the right under the Act of 1954 was conferred under the Opium Act to the accused.
25. In Sukhdev Singh v. The State of Punjab (supra) 30 kgs. of opium was recovered from the possession of Sukhdev Singh on 10.4.1978. After the prosecution evidence was concluded and the statement of the accused under Section 313 of the Code was recorded, an application was filed on behalf of the petitioneraccused praying that another sample of opium be taken from the tins Ex.P.1 and P.2 and be sent to the Chemical Examiner for a fresh analysis. This application was contested by the State on the ground that under the law accused is not entitled to claim second analysis of the fresh sample drawn from the contraband opium. Relying mainly on the Joginder Kaur''s case (supra), the trial Court rejected the application of the accused on 9.8.1980. Aggrieved by the said order the revision was filed in this Court. This Court observed that significantly no such provision or right exists under the Opium Act as claimed by the petitioneraccused and for that reason placing reliance on the observations made in Joginder Kaur''s case (supra), the revision was dismissed.
26. It would be noticed that in the above mentioned case, the controversy came to be agitated under the Opium Act still accused was not allowed to have a second Chemical Examiner report in the face of earlier report available on record. Therefore, the facts of the above mentioned cases as such would not help to settle the controversy in the given circumstances of the present case.
27. In the present case, the facts are entirely different even from the earlier case Vishwas Bhosle, Assistant Collector of Customs v. Onyekwo Felix Nwafar and another (supra). It is manifest from the record in this case that the Investigating Officer had not sought the permission of the Court at the time when he sent the second sample for analysis to the Central Forensic Science Laboratory, Chandigarh. The Investigating Officer had also not followed the procedure prescribed in Section 52A(2) of the Act. The question whether noncompliance of these provisions would render the search and seizure illegal and would degenerate the recovery of the poppy husk as inadmissible is not required to be determined in this case. The fact remains that it has been specifically provided in clause (c) of subsection (2) of Section 52A that the sample to be sent for analysis has to be taken out in the presence of Magistrate and it is required to be duly certified by him. The spirit of these provisions is required to be followed as and when the original sample is lost in transit or otherwise where trial court on being satisfied from the material placed on record orders for the second test as envisaged in Standing Instruction No. 1/88 dated 15.3.1988 referred to above. In the present case, despite the first report of the Chemical Examiner being available on record the police of its own has moved the Chemical Examiner for a fresh test and report solely for the purpose of overcoming the findings given in the first report. Such a course was not warranted under the circumstances of the case and cannot be upheld. There is no statutory sanction under the provisions of the Act or the guidelines issued by the Narcotics Control Bureau, New Delhi that second report of the Chemical Examiner of the State Government or Forensic Science Laboratory or the Central Government would supersede the first report. Upholding the course adopted by the Investigating Officer in this case would result in anomalous position. There is no reason or basis to ignore the report of the Chemical Examiner, Government Laboratory, Jalandhar who on analysis had found the contents of sample not to be poppy husk because it cannot even be urged from the side of the Staterespondent that first sample sent for analysis to the Chemical Examiner, Government Laboratory, Jalandhar had been lost or destroyed and for that reason the Investigating Officer had sent the other sample for analysis to the Central Forensic Science Laboratory, Chandigarh. Even otherwise, the net consequence of obtaining analysis report of the second sample by the Investigating Officer is that contents of the sample, drawn from the same bulk poppy straw are different which creates doubt as to the acceptability of entire recovery of bulk of 60 kgs. of poppy straw. In this case, the Investigating Officer has deliberately not chosen to get any certification of the Magistrate before sending the second sample for reanalysis as discussed earlier. Therefore, the second analysis report obtained by the Investigating Officer from the Central Forensic Science Laboratory, Chandigarh cannot be made the basis for prosecution of the accused.
For the aforesaid reasons, the petition is allowed. FIR in question and the subsequent proceedings taken therein including the prosecution of the petitionersaccused in Court are quashed.
