(1.) This is a petition under Section 397 of the Code of Criminal Procedure (in short "Cr.P.C:"). According to Shri Jagat Rana, learned counsel for- petitioner, the alleged recovery of opium was effected from accused on, 6.6.1990 out of which 200-gms was sent to C.F.S.L. On 24.8.1990 a report , was received from C.F.S.L. and challan was filed on 6.11.1990, although the date on the report of C.F.S.L. is 24.8.1990. Mr.Rana has contended on the basis of the report that no case has been made out against the accused under the provisions of NDPS Act and keeping that factor in view, the High Court granted bail on 7.11.1990.
(2.) According to the petitioner, constroversy has arisen as the prosecution after coming to know the insufficiency in their case moved an application after two years before the learned Addtional Sessions Judge (ASJ) on 31.8.1992 for drawing the second sample from the case property. On 7.9.1992 learned ASJ allowed the application and ordered that the second sample maybe sent to any other C.F.S.L. laboratory situated in North India barring C.F.S.L. Lodi Road and that of Chandigarh as prayed by the counsel for the respondent. The following observation of the learned ASJ is relevant I -
(3.) Thereafter the accused moved an application before the ASJ to recall the order permitting drawing of the second sample by the respondent which prayer was declined by the learned ASJ on 14.1.1993. Aggrieved by the order dated 14.1.1993, the petitioner has filed the present revision petition. Learned counsel for the petitioner has argued that once the report under Section 173 (2) of the Cr.P.C. is submitted before the Magistrate, no further investigation can be done, more so, by the Court where the report has been filed and charge-sheet pursuant to such investigation has been filed and cognizance has been taken by the concerned Court. Mr.Rana has further contended that the provisions of sub-section 8 of Section 173 of the Cr.P.C. is in relation to investigation, if any, to be carried out in respect of an offence after the report under sub-section 2 of Section 173 has been forwarded to the Magistrate, further evidence oral or documentary comes to the knowledge of prosecution then a further report regarding such evidence be also forwarded to the concerned Magistrate or Court. The basic contention of Mr.Rana is that the first C.F.S.L. report dated 24.8.1990 was with the prosecution and if the prosecution thought that it was appropriate to obtain a subsequent report, it was within their domain to send it to any other laboratory but after charge-sheet having been filed after the receipt of the report dated 24.8.1990 on 6.11.1990, the respondent has no right in law and learned ASJ acted in complete disregard to the provisions of Cr.P.C. in allowing the drawing of second sample to the respondent after few years. In support of his arguments he has cited Joginder Kaur V.The State of Punjab 1979 Chandigarh Law Report 101, Smt.Nirmala Devi V.State of Haryana 1994 Cr.L.J. NOC 249, Harprasad V.State of Punjab 1988 Cr.L.J. 532 and Shyama Charan Dubey V.State of U.P. 1990 Cr.L.J.456. Learned counsel has further contended that the prosecution after having known .that the case of the prosecution is weak as bail was granted by the High Court after two years moved the application for drawing of second sample from the case property and the impugned order of the learned ASJ permitting the respondent is without jurisdiction And totally illegal.