IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Miscellaneous No. M-30091 of 2010 (O & M) Date of Decision: August 02, 2011 Ram Lal Sharma @ Rama & another .....PETITIONER(S) VERSUS State of Punjab .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Lalit K. Gupta, Advocate, for the petitioners. Ms. Rajni Gupta, Additional Advocate General, Punjab. . . . AJAI LAMBA, J (Oral) 1. This petition is directed against order dated 24.7.2010 passed by the Judge, Special Court, Patiala, whereby application filed by the petitioner-accused has been dismissed. The application was filed for taking second sample from bulk of case property and sending the same for chemical examination. 2. It has been pleaded that the local police was acting under the influence of one Devinder Singh @ Kali against whom, the petitioners had filed FIR bearing No.262 dated 17.6.2008 under Section Crl. Misc. No. M-30091 of 2010 [2] 307 IPC, Police Station, Sadar, Patiala. It has also been brought out that so as to get revenge, said Devinder Singh @ Kali has implicated not only the petitioner but also his wife in this case by way of showing recovery of 4 kgs of opium. 3. So as to show that petitioners have reasonable apprehension of fabrication of case against them, it has been averred that petitioner No.1 over-heard, while in police lock up, that investigating officer alongwith local police personnel had put some material which was not opium, in the bulk case property and has created false evidence. The material thus added is a mixture of Jaggery (Gur). 4. Learned counsel for the respondent-State has opposed the case of the petitioner on the ground that evidence is going on. Learned counsel however has not been able to refer to any legal provision that bars sending a second sample for chemical examination. 5. I have considered the contentions of the learned counsel. 6. As per chemical examiner’s report dated 14.7.2009 (Annexure P-2), 4.2% Morphine was found in the sample sent for chemical examination. In the considered opinion of this Court, the petitioners have been able to show sufficient grounds to indicate suspicion. 7. The accused has the right to show his innocence. Manifest injustice would be caused if the said right is denied to the petitioner-accused. The case property has been kept intact under proper seal. No possible prejudice would be caused to the prosecution by Crl. Misc. No. M-30091 of 2010 [3] sending second sample for examination. There is no embargo in law for taking a fresh sample from the preserved case property. The sentence provided under the Narcotic Drugs & Psychotropic Substances Act, 1985, for the alleged offence of being in possession of commercial quantity of opium is 10 years RI minimum. In such circumstances, it would be in the interest of justice to allow the application filed by the petitioner. 8. In the peculiar facts and circumstances of the case, the petition is allowed. Order dated 24.7.2010 is hereby quashed. 9. It is directed that a representative sample would be taken from the bulk case property in the presence of Presiding Officer, Special Court at Patiala and send the same for chemical examination. Needful would be done within 10 days from today. 10. The sample would be forwarded to Chandigarh Forensic Science Laboratory (CFSL), Sector 36-A, Chandigarh, for chemical examination. Incharge of the Laboratory shall ensure that the sample thus received, would be examined within two weeks and report forwarded to the Special Court at Patiala. 11. Copy of the order be given under signatures of the Special Secretary of the Bench. (AJAI LAMBA) August 02, 2011 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?