JUDGMENT: Can the Analysis report with regard to the contraband seized in a case coming under the N.D.P.S. Act prepared by a Chemical Examiner of the Customs House be admissible with regard to proof of the substance (contents) for purposes of conviction under that Act? This is one of the questions arising for consideration in these appeals filed by accused Nos. 1 and 2 respectively challenging the conviction entered against them for the offence under Sec. 21 read with Sec. 29 of the N.D.P.S. Act and the sentence of rigorous imprisonment for 10 years and fine of Rs.1 lakh (in default rigorous imprisonment for one year) imposed therefor. 2. The prosecution alleged that at about 2.30 p.m. on 25.12.1998 P.W. 4 who was the Superintendent of the Trivandrum unit of the Narcotic Control Bureau received reliable information over telephone that two persons (subsequently found as accused Nos. 1 and 2) had checked into the Chathurthi lodge at Aristo Junction, Trivandrum possessing heroin and that after recording the information and sending Ex.P-6 report to the Official Superior, namely Director of NCB, Chennai, he proceeded to the aforesaid lodge; found on verification of Ex.P-1 entry in Ex.P-1 check-in register and also with reference to P.W. 1 who is the Manager and P.W. 2 who is the room boy that the accused were inside the room and that when he knocked at the closed door of the room, the first accused opened the door. It was noticed that the second accused was sitting on a cot inside the room with a plastic carry bag (M.O. 4) kept on his lap. The first accused was having the key of the room and that was seized by P.W. 4. After alerting the accused of their right under Sec. 50 of the N.D.P.S. Act and on getting a negative reply, M.O. 4 bag was seized and checked. One of the contents of the said plastic bag was a polythene packet (M.O. 3). The weight of the substance of brown colour found inside the packet was ascertained as 510 grams. 3. A part of the powder found inside M.O. 3 was taken out and tested using the field drug detection kit which had been taken along by P.W. 4. The test proved positive for heroin. After preparing two samples each of 5 grams and after preparation of Ex.P-2 Mahazar the accused were taken to the NCB office. 3. A part of the powder found inside M.O. 3 was taken out and tested using the field drug detection kit which had been taken along by P.W. 4. The test proved positive for heroin. After preparing two samples each of 5 grams and after preparation of Ex.P-2 Mahazar the accused were taken to the NCB office. After serving Exs.P-7 and P-8 summons they were questioned and their statements recorded. In Exs.P-9 and P-10 statements so prepared,‘the accused confessed to the crime. They were produced before the Magistrate on the next day and the prosecution steps continued. 4. In their statements under Sec. 313 the accused denied the allegation and contended that the case is foisted. According to them both of them were taken into custody on the previous day. The other contentions raised by the accused also did not find favour with the trial Court. The conviction and sentence followed. 5. Accused No. 2 was represented before this Court by Sri. V.K. Mohanan engaged on crown defence. The first accused was represented by Advocate Mr.D. Somasundaram. 6. The learned counsel for the appellants raised more or less similar contentions. They attack the sufficiency of compliance with Sec. 42 of the N.D.P.S. Act. The various contradictions that appear between the witnesses examined as P.Ws. 1 to 4 were highlighted. According to them the trial Court should have discarded the statements allegedly given by the accused in so far as Exs.P-9 and P-10 were extracted using coercive tactics which fact is clear from contemporaneous retraction statement sent up by the first accused. The failure to mark the statement and to consider the same as also the first accused are pointed out as major defects affecting prejudicially the rights of the accused. It is also argued that the trial Court went wrong in placing reliance on Ex.P-18 analysis report in so far as it was not prepared by a Government laboratory and in any case was inadmissible without examination of the expert. 7. On the arguments advanced in the case the points that arise for decision are: (1) Whether the trial Court went wrong in admitting Ex.P-18 report as proper evidence for concluding that the article allegedly seized from the accused was brown sugar? 7. On the arguments advanced in the case the points that arise for decision are: (1) Whether the trial Court went wrong in admitting Ex.P-18 report as proper evidence for concluding that the article allegedly seized from the accused was brown sugar? (2) Whether there was denial of an opportunity to establish before the trial Court the aspect of retraction of the statement given by the first accused and in the matter of dismissing Criminal M.P. No. 2150 of 2001? (3) Whether the conviction entered against the appellants is justified? (4) Reliefs? 8. Point No.1: It is a fact that Mr.K.B. Balachandran, who was the chemical examiner of the Customs Laboratory, Cochin, who prepared Ex.P-18 report was not examined as a witness. The fact is that there was no motion therefor from either side. According to the defence the burden was on the prosecution to examine him before making the report and in the absence of such evidence the report is inadmissible and that is a matter which goes to the root of the matter. The contention of the prosecution in this regard is that there is no need for such examination in view of the provisions in Sec.293 of the Crl.P.C. which reads as follows: 293. Reports of certain Government scientific experts: (1) Any document purporting to be a report under the hands of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to 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. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government Scientific experts, namely: (a) any Chemical Examiner or Assistant Chemical Examiner to Government. XXX XXX XXX 9. It is clear from the above that the report under the hand of Government Scientific Expert is admissible in evidence. (4) This section applies to the following Government Scientific experts, namely: (a) any Chemical Examiner or Assistant Chemical Examiner to Government. XXX XXX XXX 9. It is clear from the above that the report under the hand of Government Scientific Expert is admissible in evidence. Sub-clause (2) makes it clear that examination of the witness is optional only. 10. The defence has a contention that the Chemical Examiner of Customs House does not come within any of the six categories mentioned in Subclause (4) above. Chemical examiner is not defined in the Act. Rule 2(c) of the N.D.P.S. Rules, 1985 defines Chemical Examiner as follows: 2(c). “Chemical Examiner” means the Chemical Examiner or Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or as the case may be, Ghazipur. This definition appears to be only for the purpose of those matters which are dealt with under the Rules; e.g., matters dealt with under Rules 22, 24 etc. Had it been the intention of the Parliament to give the same definition to the word for the purposes of the Act also; there was no difficulty in giving a similar or same definition in the Act also. It is in this context that the following provision in Sec.2(xxix) of the N.D.P.S. Act assumes importance: (xxix) words and expressions used herein and not defined but defined in the Code of Criminal Procedure, 1973 will have the meanings respectively assigned to them in that code. Sec. 293(4) thus comes into play. If that is so, according to me, the defence contention with regard to invalidity of Ex.P-18 has no force. The Customs Department is one of the limbs of the Government of India and the Chemical Examiner working in the Customs House therefore comes within the scope of Sec. 293(4)(a). In view of the above position Ex.P-18 report was admissible in evidence even without examination of the expert and it was for the defence, if it found it necessary to elicit any particular fact to show that the report was not correct, to bring him under summons and put him under cross-examination. In the absence of any such attempt the defence cannot be heard to contend, at this stage, that the report was inadmissible. In the absence of any such attempt the defence cannot be heard to contend, at this stage, that the report was inadmissible. I have perused the evidence of P.W. 4 through whom Ex.P-18 was marked and it was noticed that the defence did not even object to the marking of the document at that stage. In the circumstances, the defence contention has to fail. 11.Point No.2: When questioned under Sec. 313 the first accused stated that he happened to see a commotion at about 11.30 p.m. on 24.12.1998 at Vallakadavu where some persons had gathered around some policemen. Out of curiosity he approached the scene. For no reason he was taken to custody and taken to the NCB where he was threatened with death and a statement of confession extracted after inflicting severe assault. He also stated that though surreptitiously, he could manage to send complaints in the matter addressed to the High Court and also to the Home Secretary of the state. In support of the said contention he got produced the relevant Government file; but that was at an earlier stage and in connection with his bail application. At the stage of defence evidence the said file was not marked as Exhibit in the case; with the result that the impact of the alleged retraction on Ex.P-9 statement of the first accused could not be looked into. According to me there is merit in the submission that this is an aspect that has to be looked into before deciding the culpability of the accused if the statement is to be relied on as the sole basis for a conviction. It is hence necessary that an opportunity be afforded to the first accused to get the said document marked and considered in the case. 12. Crl.M.P. No. 2150 of 2001 had been filed to cause production of fax massages pertaining to Exs.P-6 and P-15. It is true that there is an endorsement in these documents that relevant fax messages had already been seen, with the initial, alleged to be that of the Director of the NCB. However, Exs.P-6 and P-15 appear to have been received in the Director’s Officer on one and the same day and seen by him only on 29.12.1998. The direction in Sec. 42(2) of the N.D.P.S. Act is that the information taken down in waiting should be sent forthwith to the immediate Official Superior. However, Exs.P-6 and P-15 appear to have been received in the Director’s Officer on one and the same day and seen by him only on 29.12.1998. The direction in Sec. 42(2) of the N.D.P.S. Act is that the information taken down in waiting should be sent forthwith to the immediate Official Superior. That is something to be done by an empowered officer before he proceeds to the spot mentioned in the information for detection of the offence. The question whether the original of Ex.P-6 was in fact sent by P.W. 4 and received by the Director in due time is a matter that has to be looked into for arriving at a conclusion whether there was proper compliance with Sec. 42(2) of the N.D.P.S. Act. Total noncompliance with Sec. 42(2) of the N.D.P.S. Act, as held in Balbir Singh v. State of Punjab, A.I.R. 1994 S.C. 1872, would affect the prosecution case and to that extent, that is mandatory. If there was only delay in the fax message reaching the Director, whether it was undue or whether explanation is available therefor, is another matter to be considered by the trial Court before proceeding to convict the accused. Looked at from this perspective Crl.M.P. No. 2150 of 2001 deserves to be allowed. The reason given for dismissing the petition is that it is intended to delay the proceedings. It has to be noted that in the present case the accused have been under custody and they would normally have no desire at all to delay the proceedings. By delaying the proceedings they would only be increasing the number of days under incarceration, if at all the ultimate decision is one of acquittal. Hence, I feel that Crl.M.P. No. 2150 of 2001 was wrongly dismissed. A further opportunity to the accused to adduce evidence as sought for therein is necessary. 13.Point No. 3: Though arguments were advanced on the veracity of P.Ws. 1, 2 and 3 and with reference to the contradictions that appear in their evidence, I do not feel it proper to go into the present appeal in view of my findings under point No.2 that further opportunity is to be given to the accused to prove the defence version. 1, 2 and 3 and with reference to the contradictions that appear in their evidence, I do not feel it proper to go into the present appeal in view of my findings under point No.2 that further opportunity is to be given to the accused to prove the defence version. If findings are entered at on the merits of the contention regarding the veracity of the witnesses that may stand in the way of an independent assessment of the evidence in order to arrive at fresh conclusion with regard to the guilt or otherwise of the accused based on the prospective defence evidence. Hence, I exclude the said aspect from consideration in the present case. 14. There is a major defect in the impugned judgment in so far as the conviction is entered at with reference to Sec. 21 read with Sec. 29 of the N.D.P.S. Act. These sections read as follows: 21. Punishment for contravention in relation to manufactured drugs and preparations: Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufacturers, possesses, sells, purchases transports, imports inter-State, exports interState or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable, (a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) Where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 29. 29. Punishment for abetment and criminal conspiracy: (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Sec. 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. (Sub-clause 2 omitted) What is obvious from the above is that Sec. 29 is independent of Sec. 21. The highlighted portion in Sec. 29(i) as above assumes special significance. The impact of the said words is that even if there is no conviction under Sec. 21, conviction under Sec. 29 alone would be justified provided the other ingredients mentioned in Sec. 29 are established. It follows that where it is found that the accused have committed the offence of criminal conspiracy, a separate conviction and separate sentence therefor would be warranted. The conviction entered in the present case for offence punishable under Sec. 21 read with Sec. 29 of the N.D.P.S. Act is therefore improper and it is set aside. If there is evidence to show that the offence under Sec. 29 of the Act is established there shall be a separate conviction and separate sentence therefor though such sentence can be concurrent. 15.Point No.4: In view of my findings under the aforesaid points the judgment under appeal is set aside and the matter is remitted to the trial Court with the following directions. (A) Crl.M.P. No. 2150 of 2001 will stand allowed. The trial Court will issue summons for production of the document mentioned therein. If motion is made by the defence to call for any other documents in support of the contention based on Sec. 42 such opportunity will also be allowed and the prospective evidence considered. (B) Acceptability of the statements recorded from accused Nos. 1 and 2 under Sec. 67 of the N.D.P.S. Act will be considered afresh based on the prospective evidence adduced on the point. (C) In case the accused are found not entitled to get an acquittal, the question of their conviction for offences under Secs. 21 and 29 will be considered independently and not as though Sec. 29 is a provision to be read along with Sec. 21 for the purpose of conviction under the latter. (C) In case the accused are found not entitled to get an acquittal, the question of their conviction for offences under Secs. 21 and 29 will be considered independently and not as though Sec. 29 is a provision to be read along with Sec. 21 for the purpose of conviction under the latter. (D) Since the accused are suffering imprisonment and not under bail the trial Court will dispose of the matter afresh at the earliest and in any event within a period of three months from the date on which the records are received back in that Court.