Surjit Singh vs The State of Punjab

Man Mohan Singh Gujral, J.—Surjit Singh petittioner was convicted u/s 9-A of the Opium Act and was sentenced to two years'' rigorous imprisonment and a fine of Rs. 1,000. His appeal having failed he has come up in revision to this Court and in that revision petition he has filed an application being Criminal Miscellaneous No. 2041 of 1971 praying that four samples be taken out of the four parts of opium which were alleged to have been recovered from the accused and these samples be sent to the Public Analyst for further examination This petition has been made with a view to show that the substance alleged to have been recovered from the accused was in fact not opium.

A notice of this application was issued to the State and Mr. N.S. Bhatia appears to oppose it. On behalf of the State it was contended, on the basis of the decision in Karnail Singh v. The State (1966) 68 PLR 657 that under the law the petitioner could not ask for the re-examination of the substance alleged to have been recovered from him. In my opinion the argument is not well-founded. In Karnail Singh''s case, 500 grams of opium was alleged to have been recovered and the prayer made was that the entire bulk be sent for further examination by the Chemical Examiner and this prayer was refused on the ground that there was no justification for the accused either in law or in principle to ask for such a re-examination. It was further observed that if such request was allowed in principle then the entire bulk of opium would have to be examined by the appropriate functionary. In the present case, we find that the request is only for the re-examination of four samples drawn from different lots alleged to have been recovered from the possession of the accused. It is not prayed that the entire bulk of the substance be sent for Chemical Analysis I am, therefore, of the view that the ratio of the decision in Karnail Singh''s case does not stand in the way of the application being granted. In arriving at this conclusion I am also influenced by the view taken in Madan Lal v. The State of Punjab, (1971) 73 PLR 107 Wherein a similar request was allowed and the following observations were made:-

The prosecution must have been aware of the judgment of this Court in Karnail Singh''s case (supra), but the same was not produced at that time. Reliance on this judgment was also misconceived, Shamsher Bahadur, J. has only observed that it was not necessary to get the whole of the bulk examined when a sample taken from the same had already been examined by the Chemical Examiner. The accused, as already observed, only wanted another sample to be tested chemically by the Public Analyst of Calcutta. In such a situation, the judgment in Karnail Singh''s case could not be pressed into service.

The above observations are fully applicable to the facts of the present case and I, therefore allow the petition and direct that the trial Magistrate shall draw a simple each from the four lots into which the opium has been divided and send these sample to the Public Analyst after getting them sealed. The expenses of the analysis would be borne by the petitioner. The report from the Public Analyst should then be forwarded to this Court along with the affidavits of the Constables who are deputed to carry the sample to the Public Analyst. The revision petition be set down for hearing after the receipt of the report of the Public Analyst.