JUDGMENT - V.H. BHAIRAVIA, J.:---The facts leading to this application under section 482 of the Criminal Procedure Code are in brief that the contraband drugs i.e. brown sugar weightage 8 kgs., valued at Rs. 16 lakhs were seized from the person of the respondent-accused on 19-7-88 while he was in process of boarding the flight for Adis Ababa and a complaint was filed against the accused being NDPS SPL Case No. 1093 of 1988 in the Court of SPL Judge Shri S.K. Shah at Bombay. A charge under section 8(c) r/w. section 21, section 8(c) r/w. section 5, 28 and 23 of the NDPS Act, 1985 and under section 135(1)(a) r/w. section 135(1)(ii) of the Customs Act, 1962 was framed. It is submitted that the trial was commenced from 21st June, 1993 and about 5 witnesses have been examined by the prosecution. By examining the panch witnesses, the prosecution found that the sample remnant was not produced in the Court and therefore, as remnant could not be shown to the panch witnesses for identity of the same. On enquiry, the prosecution were informed by the Customs Officer that the sample remnant and the seized Muddemal were kept in Customs godown and the same came to be destroyed under section 52-A of the NDPS Act. Accordingly, the prosecution was informed that the remnant received from the Chemical Analyser alongwith his report which was kept alongwith seized Muddemal had also been destroyed by inevidently and therefore, it could not be produced in the Court during the course of examination-in-chief of the panch witnesses. However, the report of the Chemical Analyser Exhibit 29 was on record but in the absence of the sample, it was not possible for the prosecution to examine the Chemical Analyser in support of his report and to prove Exhibit 29. The learned Prosecutor made an application with a request of allowing the prosecution to get the sample which was collected by the Magistrate from the seized Muddemal under section 52-A of the Act and has been retained by the Magistrate in Court room, to send it to the Chemical Analyser and obtain fresh report of the same in the interest of fair trial and in the interest of fair justice. 2. 2. The learned Designated Judge after hearing the learned Public Prosecutor and the learned counsel on behalf of the Respondent-accused, rejected the application by his order dated 4th August, 1993 and held that "sending the sample which was collected in the presence of Spl. M.M. in compliance of section 52-A of the NDPS Act would be reopening in the investigation and a step in the investigation which cannot be permitted under the law". 3. Against the said order, the Appellant-Original complainant has preferred this Criminal Application invoking the inherent jurisdiction of this High Court under section 482 of the Criminal Procedure Code, praying for quashing and setting aside the order of the learned Special Judge and the Designated Court may be directed to send the sample retained by the Magistrate (Article 15) to the Chemical Analyser for its examination and analysis and report thereon. 4. Heard the learned Prosecutor Mr. Patwardhan for the applicant-complainant and Miss Y.N. Katpitia, learned counsel appearing on behalf of the respondent No. 1. The learned Public Prosecutor submitted that the view taken by the learned Judge is erroneous and bad-in-law, therefore, it is not sustainable. The learned Public Prosecutor further submitted that the power conferred under section 311 of the Criminal Procedure Code to the Court for arriving the just and true decision, the Court may call or recall and record the evidence of the witness under this provision. The learned Public Prosecutor vehemently submitted that the learned Special Judge has refused to exercise his power and thus abused the process of law. It has been vehemently submitted by the learned Public Prosecutor that the sample which was collected and sent to the Chemical Analyser, no doubt remanant received back alongwith the report (Exhibit 29) but the same was kept and preserved in the Customs godown alongwith other contraband articles and goods. It has been submitted that it is the policy of the Central Government to destroy the narcotic drugs etc. after following the procedure under section 52 of the NDPS Act, 1985. It has been submitted by the learned Public Prosecutor that the sample Article 15 is the same material collected by following the procedure under section 52-A of the Act to be analysed by the expert i.e. Chemical Analyser. after following the procedure under section 52 of the NDPS Act, 1985. It has been submitted by the learned Public Prosecutor that the sample Article 15 is the same material collected by following the procedure under section 52-A of the Act to be analysed by the expert i.e. Chemical Analyser. The procedure laid down under section 52-A as under :- 52-A. Disposal of seized narcotic durgs and psychotropic substances.---The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of phsychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. 5. The sample taken under section 52-A(2) and certified by the Magistrate is to be treated as primary evidence in respect of such offence. The learned Public Prosecutor therefore, emphatically submitted that no doubt Article 15 is the primary evidence against the accused connected him with the offence committed but with a view to hold the substantial evidence for proving the seized article as contraband article, it would be necessary to get the experts opinion which would enable the Court to arrive at the just and correct decision. The learned Public Prosecutor has submitted that this Court has wide power under section 482 of the Criminal Procedure Code and for securing the ends of justice, the Court may pass such order as may be necessary to give effect to any order under this Code. 6. As against this, Miss Y.N. Katpitia, learned Counsel appearing on behalf of the respondent-accused, submitted that the impugned application is not maintainable under section 311 of the Criminal Procedure Code. It has been vehemently submitted by her that the power under section 311 of the Code confers on the Court only for sending summons and examine or recall and re-examine any such person if his evidence appears to be essential to the Court. She has submitted that under this section, nowhere it is empowered the Court to send the sample to the Chemical Analyser and ordering to get the sample examined and analysed by the Chemical Analyser. She has submitted that under this section, nowhere it is empowered the Court to send the sample to the Chemical Analyser and ordering to get the sample examined and analysed by the Chemical Analyser. This would amount to collect new evidence and thus it would amount to re investigation of the prosecution case which is not empowered under section 311 of the Code and it will prejudice the respondent-accused person in his defence. She has further submitted that the prosecution itself is responsible for the commission of such a serious mistake by remaining negligent in not preserving the remaining sample until the trial is over knowing fully well that the remaining samples are required to be produced before the Court at the time of trial, failing therein would be fatal to the prosecution case. She has submitted that the respondents-accused were arrested on 28th March, 1989, report of the Chemical Analyser was received on 29th December, 1989 and the charge-sheet was issued on 31st April, 1990. She pointed out that the prosecution which was very much conscious and aware about the disposal of the muddemal article and was not in a position to produce it before the Court, should have promptly got the Article 15 analysed by the Chemical Analyser well in advance before the trial commenced. Now, after a lapse of more than 3 years and that too after the examination of five prosecution witnesses is over, the prosecution has moved this application. She has vehemently submitted that the prosecution has not specifically stated in this application as to under what provision of law this application is maintainable. However, the learned Judge is purported to have exercised his power under section 311 of the Criminal Procedure Code. She has also submitted that the prosecution has failed to give satisfactory explanation for the delay in filing this application. Therefore, the delay in filing this application should not be condoned and the prosecution should not be allowed to fill up the lacuna in the present case. She has relied on the following authorities in support of her arguments: 1. A.I.R. 1978 S.C. page 847; 2. Jamantraj Kewalji Govane v. State of Maharashtra ,A.I.R. 1968 S.C. 178; 3. State of Gujrat v. Mohanlal Jitamalji Porwal, 1987 Cri. L.J. 1061; 4. The Dept. of Central Excise (H.O.), Bombay v. Rajesh Tulsidas Veraj, 1988(3)Bom.C.R. 466; 5. She has relied on the following authorities in support of her arguments: 1. A.I.R. 1978 S.C. page 847; 2. Jamantraj Kewalji Govane v. State of Maharashtra ,A.I.R. 1968 S.C. 178; 3. State of Gujrat v. Mohanlal Jitamalji Porwal, 1987 Cri. L.J. 1061; 4. The Dept. of Central Excise (H.O.), Bombay v. Rajesh Tulsidas Veraj, 1988(3)Bom.C.R. 466; 5. Sshshibala Nair v. Intelligence Officer, Narcotic Control Bureau, 1990(1) Mh.L.J. 457 7. Having regard to the facts and circumstances of this case, the rival contentions of the parties required to be considered seriously as the effect of the view whatever expressed in this case would be very extensive. The paramount consideration for me is : Is it a fit case to exercise the inherent powers conferred under section 482 of the Criminal Procedure Code on the High Court by quashing and setting aside the order passed by the learned Special Judge and to direct the designated Court to allow the prosecution to send the sample article 15 to the Chemical Analyser and to obtain a report from him with a view to meet the ends of justice? Section 482 of the Criminal Procedure Code reads as under :- "Saving of inherent powers of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." The Supreme Court in (Mohanlal Shamji Soni v. Union of India and another)1, A.I.R. 1991 S.C. 1346, has observed thus :- "Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further, it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. It is, therefore, clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." In the case of (State of Karnataka v. L.Muniswamy and others)7, A.I.R. 1977 S.C. 1489, the Supreme Court has observed thus :- "The saving of the High Courts inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose..........The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The object and scope of this provision (section 482) which enables the High Court to do justice between the State and its subjects, has to be properly realised and width and contours of that salient jurisdiction appreciated." In the case of (State, Delhi Administration v. Pali Ram)8, A.I.R. 1979 S.C. 14, the Supreme Court has observed that to obtain the experts opinion would not amount to filling up the gap, but it would be just and proper to obtain the experts opinion for allowing the just necessary. In the instant case also, the substance collected and preserved by the Magistrate in the Court is the substance undoubtedly taken from the same sample seized by the officers from the respondent-accused and the same is required to be examined by the Chemical Analyser and a fresh evidence on record. 8. In the instant case also, the substance collected and preserved by the Magistrate in the Court is the substance undoubtedly taken from the same sample seized by the officers from the respondent-accused and the same is required to be examined by the Chemical Analyser and a fresh evidence on record. 8. Having regard to the facts and circumstances of this case, a huge quantity of contraband drugs has been seized. The delay in seeking permission for sending the substance (Article 15) for analysis would not amount to bar from exercising the power under section 311 of the Criminal Procedure Code. Once the Court is satisfied that it is necessary in the interest of fair trial and to secure the ends of justice, the power under section 482 can be exercised at any stage. The Supreme Court in (State of Gujarat v. Mohanlal Jitamalji Porwal and another)9, A.I.R. 1987 S.C. 1321, has observed thus :- "The mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day." I think this is a fit case wherein High Court should exercise its inherent power conferred under section 482 of the Criminal Procedure Code, enabling the Prosecutor to complete the missing link between the substance seized and the Chemical Analysers report or the same seized subsequently. In the case of Delhi Administration (supra), it has been observed that to obtain experts opinion would not amount to filling up the gap in the prosecution case. The alleged offence is a very serious offence not against the State but against the human race capable of killing not one or two individuals but in mass. The seized contraband would have been successfully distributed amongst the consumers. Therefore, with a view to achieve satisfactory public purpose, it is undoubtedly the duty of the Court to secure the ends of justice by legal means. 9. In view of the above observations, I allow this application, set aside the order of the learned Special Judge dated 4th July, 1993 and the learned Special Judge is directed to send Article 15 to the Chemical Analyser and obtain his opinion. 9. In view of the above observations, I allow this application, set aside the order of the learned Special Judge dated 4th July, 1993 and the learned Special Judge is directed to send Article 15 to the Chemical Analyser and obtain his opinion. On receiving the opinion, the Prosecutor as well as the accused be allowed to examine the Chemical Analyser according to law. It reveals from the case that the trial is already commenced, the accused person is behind the bar since 1988 and the further delay in the trial would amount to denial of justice to the accused. To avoid further delay, the Special Judge is directed to send the Article 15 within 8 days on receiving the Writ of this order to the Chemical Analyser for analysis with a direction to send his (C.A.) report after examination and analysing the Article 15 within a fortnight. Rule is made absolute. In view of the order passed, stay stands vacated. Aplication allowed. *****