S.B.SINHA,J. - (1.) LEAVE granted.
(2.) WHETHER an order of bail granted in favour of the appellant herein could have been directed to be cancelled on the basis of a report of analysis of the articles recovered from him containing 'heroin' is the core question involved herein. Before, however, we advert to the said question, we may notice the factual matrix involved in the matter. On or about 14.08.2004, the luggage of two persons, viz., Abdul Munaf and Zahid Hussain, who were traveling in a bus were searched and allegedly contraband weighing 2 kgs. was recovered. A purported statement was made by the said accused persons that the said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him. Apart from the said statements of the said accused persons, no other material is available on record to sustain a charge against him. On the basis of the said statement, the appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in terms of S.67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Appellant contends that he was tortured and the statement was obtained forcibly from him on some blank documents. He later on retracted therefrom. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 stating that the sample did not contain any contraband substance. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance allegedly recovered from the coaccused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act for sending the sample to another laboratory. The court, however, did not pass an order of discharge in favour of the appellant but released him on bail, stating: "Accordingly, as mentioned above, there is no ground that by accepting the application of the complainant and order be passed for sending the second sample for examination to another laboratory. If the investigating officer so desires, then in accordance with the ruling expounded as above, he is free to send the second sample to any of the laboratories for its examination at his own level. On the basis of the abovementioned observations, the application of the complainant is rejected."
(3.) THE prosecution, however, sent another sample to the Central Revenue Control Laboratory, New Delhi. A report dated 6.01.2005 was sent opining that the sample under reference was tested positive for Diacetyl morphine (Heroin), which according to the said report was found to be 2.6% of the sample tested.;