C.S. Tiwana, J.
1. This appeal on behalf of the State is directed aganst he judgment dated January 9, 1980, of the Additional Sessions Judge. Bhatinda, whereby Nachhattar Singh, the respondent, was acquitted of the offence Under Section 9(a) of the Opium Act, He had previously been convicted by the Judicial Magistrate First Class, Mansa, by judgment dated October 17, 1978, for the said offence and had tjeen sentenced to undergo rigorous imprisonment for nine months and to the payment of a fine of Rs. 500/-. It was in appeal against that judgment that the acquittal of the respondent took place.
2. It had been alleged against the respondent that on October 27, 1977 in the area of village Tamkot opium weighing 1.020 kg was recovered from his possession, for the keeping of which he did not have any permit. Head Constable Kashmir Singh PW 2 accompanied by Constable Joginder Singh PW 1 and some other Constables was returning by an official tempo after the investigation of some case at village Burj Hari, and when he was at a distance of about 15Q yards from the bus stop of village Tamkot, the respondent was seen going in some suspicious circumstances while holding a jhola. He was arrested and the opium in the quantity already mentioned was recovered from him, Thereafter 10 gm of opium was separately sealed and it was then got examined from the Chemical Ejcamner to the Punjab Government at Patiala. 2.2 per cent morphine was found in that sample of opium. The remaining opium had been separately sealed. It was the seal of -Head Constable Kashmir Singh having an inscription of 'K. S.' which was used for sealing both the parcels of opium. After use the seal was entrusted for safe custody to Constable Joginder Singh PW 1. The conviction of the respondent was primarily based on the statements as made by Constable Joginder Singh PW 1 and Head Constable Kashmir Singh PW 2, Affidavits of Constable Gurnam Singh PW 3 and Head Constable Gurbakhash Singh PW4 were filed for showing that the sample of opium subsequently sent to the Chemical Examiner had not been tampered with by anybody while it remained deposited at Police Station, Mansa, where the case against the respondent had been got registered by Head Constable Kashmir Singh. An intimation through a ruqa had been sent by Head Constable Kashmir Singh at 1.20 p. m. on October 27, 1977, after the recovery of the opium and the first information report was recorded at Police Station, Mansa, at 2.10 P.M. that day.
3. Before the trial Court some discrepancies in the statements of the two witnesses of recovery were pointed out by the learned Counsel for the respondent. They were not considered sufficient for disbelieving the witnesses. The respondent had taken this plea that on a day prio'r to the alleged recovery he had been arrested from his village Khialan Malakpur and subsequently a false case under the Opium Act was m>de out against him. He examined Hakam Singh DW 1 and Inder Singh DW 2 who deposed that the respondent had been arrested in their presence. This evidence was disbelieved by the trial Court. The lower appellate Court took note of a Single Bench authority of this Court reported as Boota Singh v. State of Punjab, (1980) 82 Pun LR 202 : 1980 Cri LJ 336 and for that reason gave this finding that the material recovered from the respondent did not stand proved to be opium. The said authority having been overruled in Inder Singh v. State of Punj., 1981 Chand LR (Cri) 114(a Division Bench ruling, the learned Counsel for the respondent was unable to support the acquittal merely on this ground that the recovery alleged to have been effected from the respondent was not one of opium. The learned Ad- ditional Sessions Judge did not discuss the merits of the prosecution evidence. learned Counsel for the respondent has also not urged anything for disbelieving the recovery. We agree with the the appreciation of the prosecution evidence as done by the trial Court and hold that the respondent had in fact been arrested in the manner alleged by the prosecution and then the recovery of the opium was made from him,
4. learned Counsel for the respondent has taken this technical objection that none from the office of the Chemical Examiner came forward to depose or file an affidavit to show that the sample of opium had not been tampered with during the period it remained with the Chemical Examiner. The respondent did not take a positive stand at the stage of the recording of the evidence that there had been any interpolation in the office of the Chemical Examiner in relation to the sample which was examined. It was anly urged at the stage of the hearing of the arguments that it was the duty of the prosecution to show by leading some kind of evidence that the sample of opium had not been tampered with in the office of the Chemical Examiner. The trial Court took into consideration this fact that no official of the Chemical Examiner was interested in tampering with the sample and that all official acts done by a public servant in the discharge of his duties could be presumed to be valldly done. It was mentioned by Constable Gurnam Singh PW 3 in his affidavit that he had left the sample of opium in the office of the Chemical Examiner. The learned Counsel for the respondent laid stress on this point that it should have been entrusted to the Chemical Examiner himself. The trial Court took into consideration this fact lhat it was not possible for the Chemical Examiner to personally receive the samples sent to him in all types of cases,
5. In the report, Exhibit PE, of the Chemical Examiner it was specifically mentioned that the seal on the exhibit was intact and agreed with the sample seal sent. That means that up to the time the sample was examined there had been no interference in the same. The argument of the learned Counsel for the respondent before us is that the report of the Chemical Examiner is ad- missible only for showing the sample to be one of opium and that any further observation made by him with regard to the condition of the sample at the time of the examination cannot be received in evidence under the provisions of Section 293, Cr. P. C The learned Counsel has obtained support for his argument from a Single Bench ruling of this Court-Santa Singh v. State. (1970) 72 Pun LR 618, wherein the scope of Section 510 of the old Code of Criminal Procedure which corresponds to Section 293 of the new Code was considered. The following quotation from the headnote itself would clarify the view taken in that case:
Held, that according to the provisions of Section 510, Cr.P.C. it is only the report of the Chemical Examiner upon any matter or thing duly submitted to him for examination, that can be used as evidence. In other words, it is the report by which is implied the opinion of the Chemical Examiner, which can be used as evidence provided the matter or thing, in respect of which such opinion is sought has been duly submitted to him for examination. In the context, the word 'report' refers to the report proper pertaining to the examination of the matter or thing forwarded to him and not to any incidental intimation noted or endorsed in that report. Section 510, Cr.P.C. dispenses with the necessity of production of Chemical Examiner as a witness in Court to prove the contents of his report pertaining to the examination. It does not dispense with the necessity of proof of any other incidental or consequential matter, about which a note has been appended in that report.
We respectfully differ from the above view. Section 293 of the Cr.P.C. lays down that any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted lo him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, The use of the word 'document' can lead to this inference that not only the opinion of the Chemical Examiner but all that is stated in the report becomes admissible without formal proof. If this were not so, such practical difficulties would arise as would render the examination of the Chemical Examiner or somebody from his office a dire necessity, and not only the position of the seal but even reference numbers of the communications received from the police would have to be proved by examining some witness so as to connect the material examined with the one sent for examination. The view taken in Santa Singh's case 1970) 72 Pun LR 618(supra) is, therefore, over-'ruled.
6. Several Single Bench rulings of this Court were then referred to by the learned Counsel for the respondent for showing that it was imperative for the prosecution to lead evidence about the non-tampering of. the sample in case it had been entrusted by the police authorities to some functionary other than Chemical Examiner himself. The particulars of these rulings are as follows:
(1) Criminal Revision No. 219 of 1979(Tehal Singh v. State of Punjab) decided by Tewatia, J., on Nov. 20, 1980.
(2) Criminal Revision No. 304 of 1979(Gurcharan Singh v. State of Punjab) decided on Feb. 5, 1981, by Tewatia, J.
(3) Amarjit Singh v. State of Punjab, 1981 Chand Cri Cas 170 (P&H;, decided by Punchhi, J.,
(4) Atma Singh v. State of Punjab, 1981 Chand Cri C 181(P&H;, decided by Punchhi, J., and
(5) Bishno v. State of Punjab, 1981 Chand Cri C 243: 1982 Cri LJ NOC 22(P&H;, decided by Dewan, J.
7. The ratio in State of Rajasthan v-Daulat Ram : 1980CriLJ929 was taken into consideration for giving this finding that unless somebody from the office of the Chemical Examiner filed an affidavit showing that the sample of an article remained in the same state, as it had been handed over by the police till its actual examination, the link evidence would not be taken to be complete. In that case samples of opium were taken from the Excise Headquarters and were then handed over to a Sub-Inspector of a certain police station. Thereafter another witness had handed over the samples to the Superintendent of Police, Jodhpur, for onward transmission to the Public Analyst, but the samples were not accepted by the office of the Superinten-tendent of Police, as the labels Were not in order. Then follows the following holding (Para 1 :
It is the admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S. I. Aidanram, P.S. TIdai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this period - a fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not_ proved that right from the stage of the seizure of the opium up to the time when the samples were handed over to the public analyst the seals remained intact.
Thus the dictum in Daulat Ram's case 1980 Cri LJ 929)(SC) enjoins upon the prosecution to prove this fact that up to the stage the sample reaches the Public Analyst the police had not tampered with the same-so to substitute the article which was contained in the original sample. The seal used by the police is ordinarily handed over to a person of their choice and hence, it is not difficult for them to obtain back the seal and use it over again. The Courts, therefore, always insist that somebody should come forward to depose that there has been no tampering of the seal till the sample gets out of the reach of the police authorities. We are of the view that the ratio of Daulat Ram's case 1980 Cri LJ 929)(SC) cannot by analogy be applied to the employees working in the office of the Chemical Examiner. Those employees are not at all interested in the success of the prosecution case. It could only be the person who has been prosecuted for the recovery of some incriminating article who would be interested in the substitution of any material that was to be examined. Any mischief on the part of such a person would be sufficiently guarded against by obtaining this report of the Chemical Examiner that the seals were intact till the contents of the sample had been examined by him. If the Courts were to insist that in every case all those persons who handled the sample in the office of the Chemical Examiner should depose about this fact that the sample had not been tampered with. till it was opened for examination, it would very nearly render nugatory the beneficial provisions contained in Section 293 of the Cr.P.C. The insistence upon obtaining depositions of the employees of the Chemical Examiner's office would prolong trials without any useful purpose being served. As pointed out by the trial Court, it would not be possible to entrust all the samples to the Chemical Examiner himself for keeping them in safe custody till their examination. We are thus against extending the ratio of Daulat Ram's case beyond its actual scope. The report of the Chemical Examiner to this effect that the seals on the sample were intact when it was examined by him is considered by us to be a sufficient safeguard against any mischief that could be perpetrated in the office of the Chemical Examiner. 8. We thus hold that the material recovered from the possession of the respondent was opium. We allow this appeal and convict Nachhattar Singh respondent Under Section 9(a) of the Opium Act. He being a previous convict cannot be released on probation. On account of the lapse of time we do not want 1o restore whole of the sentence awarded to him by the trial Court. He shall undergo rigorous imprisonment for six months together with the fine of Rs. 500/-. In default of the payment of fine he shall further undergo rigorous imprisonment for three months.