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TMI Blog2018 (11) TMI 1955X X X X Extracts X X X X X X X X Extracts X X X X ..... g some of the contraband being identifiable through naked eye, inspection based on experience and knowledge, would be a great fallacy and we would respectfully state that it would be grossly unsafe to rely upon such an opinion based on naked eye inspection backed by experience or knowledge to arrive at a prima facie opinion of the commission of an offence to submit an accused to the rigors of trial by the Magistrate in the exercise of its powers under Section 190 Cr.P.C. - Non-inclusion of the Chemical Examiner's opinion in the report under Section 173 Cr.P.C. would expose the accused to unfounded dangers imperiling and endangering his liberty since the provisions of the N.D.P.S. Act in its applicability to a trial and conclusion are stringent in consequence. Thus, it is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan depriving the Magistrate of relevant material take cognizance and if it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer from visual inspection, smell or taste ? We have heard the matter. There has been conflict of sorts and contradictory judgments have emerged on the afore mentioned question. The learned Single Benches have held that the report under Section 173 Cr.P.C. submitted without the Chemical Examiner's report would be inconclusive and after the expiry of the statutory period, the accused would be entitled to the benefit of bail under Section 167(2) Cr.P.C. in that eventuality. A few judgments where such a view has been propounded are mentioned here below :- (1) Siya Ram v. State(U.T.) Chandigarh 2009(1) R.C.R. (Criminal) 58. (2) Sukhchain Singh v. State of Punjab 2015(4) R.C.R. (Criminal) 518 (Cr.M.M-15041 of 2014). (3) Gurpal Singh and others v. State of Punjab (Criminal Revision No.791 of 2016). (4) Ravinder v. State of Haryana 2015(4) R.C.R.(Criminal) 518 (Cr.M.M-28367 of 2014) decided on 26.9.2014. A contrary view has been expressed in the following cases :- (i) Nirmal Singh alias Kala v. State of Punjab (Criminal Misc. No.9411 of 2015). (ii) Kulwinder Singh v. State of Punjab (Criminal Misc. No.23782 of 2015). It would be important to refer to the provisions of law and Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court on the 3rd, they had in fact completed their investigation except for the report of the Imperial Serologist and drawing of the sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore, the mere fact that a second challan was put in on 5th October would not necessarily vitiate the first. All that S.173(1)(a) requires is that as soon as the police investigation under Chap.14 of the Code is complete, that should be forwarded to the Magistrate a report in the prescribed form. It refers to the definition of the police report as contained in Section 2(R) of the Cr.P.C. - police report means a report forwarded by a police officer to a Magistrate under sub-section(2) of Section 173 . The Full Bench concluded as below :- From the above observations of their Lordships of the Supreme Court it is clearly deducible that it is not incumbent on the investigating officer to reduce in writing the statement of the witnesses he may merely include their names in the list of witnesses in support of the prosecution case when submitting the charge-sheet. Surely, if the charge-sheet thus submitted would be complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow :- 36A. Offences trial by Special Courts.- .... ... ... ... ... (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the reference in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to ninety days , where they occur, shall be construed as reference to one hundred and eighty days . Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. Sections 19, 24 and 27-A of the N.D.P.S. Act are also extracted here below :- 19. Punishment for embezzlement of opium by cultivator.- Any cultivator licensed to cultivate the opium poppy on account of the Central Government who embezzles or otherwise illegally disposes of the opium produced or any part thereof, shall be punishable with rigorous imprisonment for a term which shall not be less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear on a report of the Public Prosecutor, apprising the Court of the progress of investigation and disclosing to it specific reasons for detention of an accused beyond the period of 180 days. Evidently, if the Public Prosecutor fails to seek extension from the Court before the expiry of 180 days, it would result in an indefeasible right accruing to the accused under Section 167(2) Cr.P.C. It would be apposite to refer to the order of the learned Single Judge contemplating two situations that may arise :- (1) Where the contraband so recovered is not apparent to the naked eye or could not be alive to common/special knowledge of the Investigating Officer. To put it in other words, only an expert report can establish the fact of existence of a contraband. (2) Where the contraband so recovered is apparent to the naked eye or police, the investigation authority may have some common/special knowledge of the recovered articles. Before we proceed with the matter, one needs to understand the meaning of the word 'cognizance'. Sections 190 to 195 of the Cr.P.C. are extracted here below :- 190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial. STATE AMNENDMENT(PUNJAB) In relation to the specified offences, section 192 of the Code shall be so read as if for the words Chief Judicial Magistrate , and the words Magistrate of the first class , or Magistrate wherever occurring, the words District Magistrate and Executive Magistrate , respectively, were substituted. 193. Cognizance of offences by Courts of Session.- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 194. Additional and Assistant Sessions Judges to try cases made over to them.- An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order direct him to try. 195. Prosecution for contempt of lawful a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate : Provided that - (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate ; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. 195A. Procedure for witnesses in case of threatening etc.- A witness or any other person may file complaint in relation to an offence under section 195A of the Indian Penal Code (45 of 1860). In State of West Bengal and another v. Mohd.Khalid 1995(1) SCC 684 it was observed by the Hon'ble Supreme Court in para-43 as follows :- 43. Then, the question is as to meaning of taking cognizance. Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an accused to the rigors of trial by the Magistrate in the exercise of its powers under Section 190 Cr.P.C. The only way that it can be done is to establish the nature of contraband on the basis of the Chemical Examiner's report and for this reason, the Chemical Examiner's report assumes an immense significance for the trial Court, to formulate an opinion as the very cognizance of an offence would depend on it. Non-inclusion of the Chemical Examiner's opinion in the report under Section 173 Cr.P.C. would expose the accused to unfounded dangers imperiling and endangering his liberty since the provisions of the N.D.P.S. Act in its applicability to a trial and conclusion are stringent in consequence. For this reason as well, it is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan depriving the Magistrate of relevant material take cognizance and if it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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