K.P.S. Sandhu, J.
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 pt in the presence of the witnesses at the time of their arrest and sent tot he Chemical Examiner for analysis and was analysis 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 them 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 pt 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 pt, 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.
4. Mr. H. S. Riar, learned Deputy Advocate-General, Punjab, has at the outset contended that Joginder Kaur's case (supra) has no applicability to the facts of the case in hand. According to the ratio of the aforesaid Division Bench authority, when once a representative sample of the substance recovered from a person has been found to be opium by the Public Analyst, during trial for an offence under S. 9 of the Opium Act the accused in his defence cannot ask the Court to send another representative sample to the same or another Public Analyst and his only right was to rebut the said report by calling the expert for cross-examination. In the present case, the prosecution has not sought any direction from the Court for sending the second sample to the Chemical Examiner. The case being still at the investigation stage, the investigating agency was fully competent to investigate freely and collect any evidence it thought proper. It is settled law that the investigating agency has an unhampered and unqualified right to investigate and collect evidence in a case and that the o would be reluctant to interfere with this valuable right of the investigating agency. Therefore, we agree with Mr. H. S. Riar that in this situation the correctness of the view enunciated in Joginder Kaur's case (1979 Chand LR (Cri) 101) (Punj & Har) (supra) is not at issue at all and that the only question which survives for adjudication is whether the investigating agency is competent to send a second sample to the Public Analyst for analysis during the investigation and whether the result of a second sample can be formed a basis for framing a charge. This question, we feel, has to be answered in the affirmative.
5. The investigating agency can certainly collect any evidence which it may deem proper to bring home the charge to the accused and no riders can be put on this right of the investigating agency. The petitioners may challenge the correctness of the second report in the Court and it is for the Court to decide about the evidentiary value of any piece of evidence collected by the investigating agency. This petition consequently fails and is hereby dismissed.
D.S. Tewatia, J.
6. I agree.
J. M. Tandon, J.
7. II also agree.
8. Petition dismissed.