SUKHDEV SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The point which arises for consideration in this Revision is, as to whether an accused person is entitled to require a Court trying the case under Section 9 of the Opium Act against him, to send an additional representative sample of the opium, alleged to have been recovered from his possession, for analysis to the Public Analyst concerned. A reference to Joginder Kaur v. The State of Punjab, would show that a Division Bench of this Court was seized of this matter. The Bench noticed four earlier Single Bench decisions of this Court, as per which it was held that the accused did have this right. The Bench, however, overruled these decisions, on a comparative consideration of the provisions of Section 13(1) of the Prevention of Food Adulteration Act, holding that there was no right conferred upon the accused, under the Opium Act to require the Court to send an additional representative sample for analysis.

(2.) Mr. Kuldip Singh, Bar-at-Law, learned counsel for the petitioner has vehemently submitted that the Division Bench decision in Joginder Kaur case (supra) requires reconsideration, as an important aspect of the matter had not been considered in the said decision. Mr. Kuldip Singh places reliance upon Article 39-A of the Constitution of India, as per which the State is called upon to secure that the operation of the legal system promotes justice, on a basis of equal opportunity. The learned counsel further contends that the denial opportunity to send an additional representative sample of the recovered article tantamounts to denial of opportunity to the accused to effectively defend himself. As this aspect of the matter has not been considered by the Division Bench decision mentioned above, the case may be laid before Honble the Chief Justice for obtaining orders of his Lordship for constituting a larger Bench to decide the matter. For the Petitioner: Mr. Kuldip Singh Bar-at-Law, Advocate. For the Respondent: Mr. V. P. Parashar, Advocate for A. G. Punjab. JUDGMENT (Dated 12-7-1982) S. S. Sandhawalia, C. J. - A veiled doubt the correctness of the view of the Division Bench in Joginder Kaur v. The State of Punjab (supra) has necessitated this reference to the larger Bench. 2. Sukhdev Singh petitioner is standing his trial before the Judicial Magistrate, Phul, under Section 9 of the Opium Act for having been allegedly in possession of a large haul of 30 kg. of opium on the 10th of April, 1978. After the prosecution evidence in the case had been concluded and the statement of the accused-petitioner duly recorded under Section 313, Criminal Procedure Code, an application was presented on behalf of the petitioner praying that another sample of opium be taken from the tins Exhibits P. 1 and P. 2 and sent to the Chemical Examiner for a fresh analysis. This application was contested on behalf of the respondent-State on the ground that the accused was not inflexibly entitled under the law to claim a second chemical analysis from fresh samples drawn from the contraband opium. Relying mainly on Joginder Kaurs case the learned trial Magistrate rejected the application on the 9th of August, 1980. Aggrieved thereby the petitioner has come up by way of this revision.

(3.) The Criminal Revision had originally come up before my learned brother Surinder Singh J., sitting singly. Before him, the king-pin of the petitionerTs stand (as is evident from the lucid reference order was that Joginder KaurTs case required reconsideration on the anvil of Article 39-A of the Constitution of India and this aspect had not at all been considered by the division Bench.