JUDGMENT [ENTITY], J.
(1) This is a petition under [SECTION] of the [ACT] (in short "[ACT]:"). According to Shri [ENTITY], learned counsel for- petitioner, the alleged recovery of opium was effected from accused on, 6.6.1990 out of which 200-gms was sent to C.F.S.L. On 24.8.1990 a report , was received from C.F.S.L. and challan was filed on 6.11.1990, although the date on the report of C.F.S.L. is 24.8.1990. Mr.[ENTITY] has contended on the basis of the report that no case has been made out against the accused under the provisions of [ACT] and keeping that factor in view, the High Court granted bail on 7.11.1990.
(2) According to the petitioner, controversy has arisen as the prosecution after coming to know the insufficiency in their case moved an application after two years before the learned Additional Sessions Judge (ASJ) on 31.8.1992 for drawing the second sample from the case property. On 7.9.1992 learned Asj allowed the application and ordered that the second sample maybe sent to any other C.F.S.L. laboratory situated in North India barring C.F.S.L. Lodi Road and that of [ENTITY] as prayed by the counsel for the respondent. The following observation of the learned Asj is relevant I - "I have perused the record submitted and received from C.F.S.L. It shows that percentage of morphine could not be assessed as it was not present in traces. It is crystal clear that the report of C.F.S.L. is vague and unclear and leads the court no where."
(3) Thereafter the accused moved an application before the Asj to recall the order permitting drawing of the second sample by the respondent which prayer was declined by the learned Asj on 14.1.1993. Aggrieved by the order dated 14.1.1993, the petitioner has filed the present revision petition. Learned counsel for the petitioner has argued that once the report under [SECTION] of the [ACT] is submitted before the Magistrate, no further investigation can be done, more so, by the Court where the report has been filed and charge-sheet pursuant to such investigation has been filed and cognizance has been taken by the concerned Court. Mr.[ENTITY] has further contended that the provisions of [SECTION] of the [ACT] is in relation to investigation, if any, to be carried out in respect of an offence after the report under [SECTION] has been forwarded to the Magistrate, further evidence oral or documentary comes to the knowledge of prosecution then a further report regarding such evidence be also forwarded to the concerned Magistrate or Court. The basic contention of Mr.[ENTITY] is that the first C.F.S.L. report dated 24.8.1990 was with the prosecution and if the prosecution thought that it was appropriate to obtain a subsequent report, it was within their domain to send it to any other laboratory but after charge-sheet having been filed after the receipt of the report dated 24.8.1990 on 6.11.1990, the respondent has no right in law and learned Asj acted in complete disregard to the provisions of [ACT] in allowing the drawing of second sample to the respondent after few years. In support of his arguments he has cited Joginder Kaur V.The State of Punjab 1979 [ENTITY] Law Report 101, [PRECEDENT], [PRECEDENT] and [ENTITY] V.State of U.P. 1990 Cr.L.J.456. Learned counsel has further contended that the prosecution after having known .that the case of the prosecution is weak as bail was granted by the High Court after two years moved the application for drawing of second sample from the case property and the impugned order of the learned Asj permitting the respondent is without jurisdiction And totally illegal.
(4) On the other hand, Mr.[ENTITY], learned counsel for the respondent, has vehemently argued that after the amendment of [ACT] in the year 1976 and the inclusion of sub-section 8 in [SECTION], the intention of Parliament is manifested in the language of sub-section 8 that investigating officer or the investigating agency is not debarred in the interest of justice and to know the truth to have the second sample drawn from the case property. Another leg of his arguments is that the first order allowing the withdrawal of second sample was made by the learned Asj on 7.9,1992 and the present revision petition was filed beyond the stipulated period of limitation on 25.1.1993. In support of his first contention, Mr.[ENTITY] has cited The [PRECEDENT] , [PRECEDENT], [PRECEDENT], and [ENTITY] V.State (Delhi Admn) . The Supreme Court in [ENTITY]'s case (supra) while quoting the Law Commission which recommended for amendment of [SECTION] while introducing sub-section 8 in [SECTION] thus quoted I - "A report under [SECTION] is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under [SECTION] comes upon evidence bearing on the guilt or innocence of the accused. We should have though that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under [SECTION] has been sent, the police 'cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in [SECTION] that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing. the power to make further investigation and submit a supplemental report. It- is in the interest of both the prosecution and the defense that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct .the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a. Magistrate is to take in accordance with the provisions of the [ACT] in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation . We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that conies to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light."
(5) After hearing learned counsel for the parties at length, I am of the considered opinion and this what follows from the observations of the Supreme Court in [ENTITY]'s case (supra) that in the event of any fresh material or evidence coming in the possession or knowledge of the investigating officer, the investigating officer or the Police is not without power to investigate further in view of the new evidence or new material which has come to its notice. It is for the benefit of the prosecution as well as for the accused. The [SECTION] of the Code on the basis of this new material or evidence which has come to the light has given power to the Police to further investigate in the matter to find the truth. However, can this power be exercised in relation to a case property which was before the prosecution on the basis of which charge-sheet has . been filed and after two years prosecution comes before the Court seeks permission that they may be allowed to draw a second sample for further test, the answer is in negative. This would amount to a roving and fishing enquiry or to fish out evidence' against the accused after the charge-sheet has been filed against the accused, which is certainly not the intention of [SECTION] of the [ACT] I am also supported in my view by [ENTITY]'s case (supra) - "REVERTING back to the said sub- section's enacted by the legislature, it has to be noted that it is only permissive in character. The Investigating Officer (or Officer-in- charge of Police Station) may undertake a further investigation even after filing of a charge- sheet. If he does so, the further evidence collected by him shall be forwarded to the Magistrate along with a further report. Therefore, I am clearly of the view that neither the prosecution, i.e the informant nor the accused can claim as a matter of right a direction from a Court commanding further investigation by the Investigating Officer under [SECTION] after a charge-sheet was filed after investigation.
(6) An additional reason for corning to the aforesaid conclusion is that even for investigation there must be a point of finality. The law expects the discharge of duties by the Investigating Officer properly resulting in a report under [SECTION]. It may only be in some exceptional case where the Investigating Officer may have to collect some further evidence/materials and submitting to the Magistrate along with his further report. Such an exceptional case will only prove the general rule that normally investigation terminate with filing of the charge- sheet in Court. In other words, the Investigating Officer believes and places reliance on the evidence and material collected by him by then.
(7) In my considered opinion, after the challan has been filed, the C.F.S.L. report dated 24.8.1990 was, also filed along with the challan, on the basis of that report, the prosecution has to sustain its case, the prosecution cannot be allowed to improve upon its case in the absence of any new material or evidence as envisaged by [SECTION] of the [ACT] The arguments of Mr. [ENTITY] that the order was passed by the learned Asj on 7.9.1992 which was in essence the first order of allowing the respondent to draw the second sample and if the petitioner was aggrieved, he ought to have filed a petition challenging that order and in the absence of any challenge to that order, the petitioner cannot be permitted to maintain the present petition as the same being time barred. I have perused the records of the case. After the order was passed, the petitioner moved an application .challenging the legality of that order and on that application, a specific order has been passed by the learned Asj dated 14.1.1993. The order dated 7.9.1992 is intermingled with the order dated 14.1.1993. The present petition has been filed to challenge the order of learned Asj allowing the respondent to draw the second sample of 14.1.1993 and, therefore, I do not see any force in the contention of learned counsel for the respondent that the petition is time barred.
(8) For the reasons stated above, I set aside the orders dated 7.9.1992 and 14.1.1993. Nothing said in this order will be an expression of opinion on the merits of the case. The learned Asj is directed to proceed in the matter in accordance with law. Parties shall appear before the Asj on 8.3.1995.
(9) File of the Trial Court be sent forthwith.
(10) With these observations, the Petition stands disposed of.