- (1.) A case under 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 under S.173 of the Code of Criminal Procedure. The petitioner was charged to stand trial for an offence under 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.
(2.) 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.
(3.) 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.;