BHARPOOR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The precise question of law which necessitated this reference to a larger Bench is as to whether the investigating agency is competent to send a second sample of opium for analysis to the Chemical Examiner when one has been sent earlier and a report on the same has been received and whether on the basis of the report on the second sample a charge can be framed against the accused.

(2.) The facts which gave rise to this reference are as under. The petitioners were apprehended by the police on 15th Aug. 1981, and opium was recovered from their possession. A sample was taken out of the opium alleged to have been recovered from the petitioners in the presence of the witnesses at the time of their arrest and sent to the Chemical Examiner for analysis and was analysed by him. According to the report of the Chemical Examiner dt. 14th Jan. 1982, a copy of which is Annexure P1 to the present petition, the contents of the sample were not opium. The investigating agency then sent another sample for analysis. The Chemical Examiner vide his report dt. 16th March, 1983, Annexure P2, opined that the substance sent to him as sample was opium. On the basis of the second report, the learned trial Magistrate vide his order dt. 6th June, 1983, framed a charge under S.9(a) of the Opium Act against the petitioners. A copy of the same is annexed to this petition as Annexure P3. Aggrieved by the aforesaid order of the Magistrate the petitioners came up in this Court under S.482 of the Cr.P.C. for quashing the charge and the prosecution launched against the petitioners in case F.I.R. No.145, dt. 15th Aug., 1981, of Police Station, Dhuri, under S.9 of the Opium Act.

(3.) The aforesaid petition under S.482 of the Cr.P.C. came up for hearing before me. Mr. Harbans Singh, Senior Advocate appearing for the petitioners, contended before me that the investigating agency was not competent to send the second sample for analysis and that the charge framed on the basis of the report on the second sample was bad in law. He relied on a Division Bench authority of this Court reported as Joginder Kaur v. State of Punjab, 1979 Chand LR (Cri) 101. Since this important law point was involved in the case which was likely to crop up frequently the matter was referred by me to a larger Bench. This matter then came up before a Division Bench consisting of brother D.S. Tewatia, J., and myself. We were of the view that since the correctness of Joginder Kaur's case (supra) was challenged it was appropriate that the case be decided by a Full Bench. Hence, this reference.