Harparshad vs State of Punjab

Ujagar Singh, J.—A case u/s 9 of the Opium Act was registered against the petitioner on the allegation that he was found in possession of opium. During investigation, sample of the opium was sent to the Chemical Examiner and as per report dated 4th April, 1985, the analysis indicated that the contents of the exhibit were not of opium and illicit opium may not be of homogenous composition. The Assistant Chemical Examiner further opined that if desired, remaining portion of the sample lying with the police may be got checked to eliminate the possibility of any opium piece in it, if already not examined. This report must have been received much before the presentation of report u/s 173 of the Code of Criminal Procedure. The petitioner was charged to stand trial for an offence u/s 9 of the Opium Act. A.S.I. Bakhshish Singh filed an application for a direction by the Court that another sample be allowed to be taken from the case property in the presence of the court and the same be sent to the Chemical Examiner for opinion. This application was forwarded by the Assistant Public Prosecutor.

The said application was opposed by the counsel for the petitioner on the ground that challan having been already presented, charges framed and thereafter two witnesses have been examined and that during trial there is no provision of law to provide another opportunity for the prosecution to rebut the earlier report of the Chemical Examiner. The trial Court relied upon Bharpoor Singh v. State of Punjab 1985 Cri LJ 599 (FB). The trial Court has allowed the application of the prosecution for sending a sample out of the remaining opium for chemical analysis.

The order of the trial Court has been challenged vide this petition by the petitioner. Learned Counsel for the petitioner has relied upon Jogender Kaur v. State of Punjab (1979) 2 Chand LR (Cri) 101 decided by a Division Bench of this Court wherein the accused-petitioner was not allowed to send a second sample for chemical analysis and the Bench observed:

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 cross-examination and then test his competency as an expert or to have any vagueness in the report clarified.

He has further argued that on the finding of the Division Bench a second sample cannot be allowed to be sent even at the instance of the prosecution. So long as the above noted Division Bench authority holds the ground, I am of the view that the prosecution cannot ,be allowed to have a second sample tested from the Chemical Examiner.

In Bharpoor Singh''s case 1985 Cri LJ 599 (Punj & Hary) (FB) (supra), the facts were different. In that case it was held that the Investigating Agency could certainly collect any evidence which it may deem proper to bring home the charge of the accused and no riders could be put on this right of the investigating agency and the petitioner could challenge the correctness of the second report in the Court and it was for the Court to decide about the evidentiary value of such report. In this Full Bench case the Investigating Agency had sent the second sample for Chemical Examiner''s opinion and after obtaining that opinion, the report u/s 173, Cri.P.C. (commonly known as challan) was to be put in the Court and in that case, the earlier Division Bench case was specially distinguished by holding that the Full Bench case was at the investigating stage whereas the Division Bench''s case (Joinder Kaur v. State of Punjab) 1979 2 Chand LR (Cri) 101 (supra) the second sample was sought to be sent during trial. The trial Court has committed a mistake in relying upon Bharpoor Singh''s case 1985 Cri LJ 599 (Punj & Har) (FB) (supra).

In view of the above observations this revision is accepted and the order of the trial Court is set aside. Parties to appear before the trial Court on April 27, 1987.