Vaidya, J.

1.

"Whether the report of the Public Analyst containing bare opinion, without there being any full and complete data disclosing the tests or experiments performed by him, can be attached any probative evidentiary value to be used against the accused for recording the order of conviction and sentence against him?"

2. The prosecution case, as per the evidence of the P.S.I.-Jawansinh P. Barad (P.W.-3, Exh.-9) is that when on 6-1-1988 at about 19-45 hours, he was on duty at Sagrampura Police Station, Surat, he received an information that one person was selling 'Charas' in a bye-lane known as "Dhabuwali Gali". Acting on this tip-off, he immediately requisitioned the services of two panch witnesses, viz., Prasanna Shankarrao Shinde (P.W.-1, Exh.-6) and Mukesh Bholanath Trivedi (examined by the accused as the defence witness) and in company of other two Police Constables, viz., Vijay Chetram Patil (P.W.-2, Esh.-8) and Balvant Arjan and Ganpat Badalsing (not examined) proceeded to the said 'Dhabuwali Gali' for raid and reached there at 20-00 p.m. On seeing the raiding party approaching, one person started running who was immediately chased and caught on the spot. On interrogation in the presence of Panchas, he disclosed his name as Annu @ Mahmad Hanif Shaikh Ibrahim. Thereafter, on taking search of his person, from the back-side pocket of his pant, a small pouch was taken out which contained about 10 grams of 'Charas' and while searching the other pocket currency notes of Rs. 4/- were recovered. These muddamal articles were thereafter seized in the presence of two panchas and were wrapped up in a packet. The same thereafter was affixed with two slips containing signatures of panchas and was sealed by applying wax-seal bearing mark "PSI-JPB". After the search and seizure formality was over, the accused was arrested and a Complaint Exh. 10 was filed by P.S.I.-Barad against him on the very day at 21-45 hours, before P.S.I, (name not legible) Athwa Line Police Station, Surat, for the alleged offence punishable under section 20(b)(ii) of the narcotic drugs & psychotropic substances act, 1985 (for short "narcotic act") The same was thereafter further investigated by the complainant P.S I.-Barad himself who recorded statement of various persons who accompanied him at the time of the raid. Thereafter, P.S.I.-Barad forwarded the sealed packet of muddamal 'charas' to the S.P. (Western Division), Surat, with a forwarding letter dated 6-1-1988 (Exh. 11) which appears to have been received by him on the same day. This in turn was forwarded to the Forensic Science Laboratory on 15-2-1988 with the Police Constable Dalpatsinh. The Public Analyst thereafter examining the same forwarded his report Exh. 12 stating therein that the same was 'cannabis sativa' i.e., "Charas", to P.S.I. -Barad who on the basis of the same submitted a charge-sheet against the appellant-accused for the aforesaid alleged offence, to stand trial before the learned Sessions Judge, Surat.

3. At trial, the appellant pleaded not guilty and claimed to be tried. Not only that but he also examined Mukesh Bholanath Trivedi, who figured as second panch witness, as his defence witness.

4. The trial Court finding the prosecution evidence trust-worthy, convicted and sentenced the appellant-accused for the aforesaid alleged offence and sentenced him to undergo R.I. for 10 years and to pay fine of Rs. 1 lakh and in default, to undergo further R.I. for one year. It is under these circumstances that the appellant feeling aggrieved by the same has filed the present appeal.

5. Mr. E.E. Saiyed, the learned Advocate for the appellant submitted that the impugned order of conviction and sentence was ex-fade illegal being perverse, as the report of the Public Analyst (Exh. 12) which is the sole base to sustain the order of conviction and sentence, does not contain full and complete data and disclose the test of experiment performed by him while analysing the muddamal sample. Mr. Saiyed further submitted that the bare opinion of the Public Analyst that the muddamal article was 'Charas' is indeed of no consequence to connect the appellant with the crime alleged against him, as in the eye of law, such laconic certificate cannot be said to have any probative evidentiary value. In support of this contention, Mr. Saiyed has relied upon two decisions of this Court render in case of (i) Sulemcm Usman Memon v. State of Gujarat, , and (ii) State of Gujarat v. Lasanmal Manumal & Am., . On the basis of these submissions, Mr. Saiyed finally urged that once the report Exh. 12 of the Public Analyst stands discarded on the ground of having no probative value, the whole prosecution edifice like a pack of cards crumbles, warranting immediate acquittal and release of the appellant.

6. Mr. K.V. Shelat, the learned A.P.P., as against the above submitted that Exh. 12 report of the Public Analyst cannot be doubted or disputed merely because it has been challenged on the ground that it did not disclose full and complete data on the test and experiments performed by him ! The learned A.P.P. further submitted that at no stage, the appellant has challenged or disputed the report of the Public Analyst (Exh. 12) which in unmistakable terms opined that the muddamal sample was 'Charas'. The learned A.P.P. further submitted that if at all the appellant wanted to dispute and thereby challenge the report at Exh. 12, nothing prevented him from taking up the contention at the earliest and cross-examine the Public Analyst by calling him before the Court ! Thus, according to the learned A.P.P., the appellant should not be now permitted to take advantage of his own lapse when he on the one hand had not taken care to cross-examine the Public Analyst by calling him in the Witness-Box under section 293 of the code, and then on the other hand to dispute its probative evidentiary value on the ground that the same was not full and complete. The learned A.P.P. further submitted that the two decisions of this Court relied upon by Mr. Saiyed, are indeed of no assistance to the accused as they pertain to the offence under Bombay Prohibition Act, 1949 which has no nexus whatsoever with the offence under the Narcotic Act ! The learned A.P.P. on the basis of these submissions finally urged that since no case was made out to interfere with the order of conviction and sentence, this appeal deserves to be dismissed.

7. Now having heard the learned Advocates appearing for the respective parties quite at length, it appears to this Court that the contentions raised by Mr. Saiyed are well-founded and deserves to be accepted at once. We have carefully perused report Exh. 12 of the Public Analyst dated Nil addressed to the P.S.I.-Athwa Lines Police Station, Surat. This report reflects the following particulars: Firstly, that on 15-2-1988 the office of Forensic Sciences had received one muddamal sample in matter of an offence under Section 20 of N.D.P.S. Act, registered as C.R. No. 12 of 1988 by Athwa Lines Police Station, Surat through special messenger-Police Constable Dalpatsing (B. No. 1973). Secondly, the same was analysed on 29-2-1988; Thirdly, one sealed sample alongwith specimen seal affixed were found therein; Forthly, description about the contents of the said parcel stating "the sealed paper-packet contain one polythene bag having 5.960 grams of blackish brown coloured lump enclosed within another yellow coloured polythene bag"; Fifthly the result of the analyst to the effect that 'the contents of the exhibit was identified as the material of plant "cannabis sativa" (Charas); Sixthly, this Exh. 12 report is signed by Mr. M.C. Chapaneri, Sr. Scientific Assistant-cum-Assistant Chemical Examiner to Government of Gujarat, Regional Forensic Science Laboratory, Surat. Now, on perusal of the above report, by no stretch of imagination, the same can be said to be full and complete, disclosing the scientific tests or experiments performed by the Public Analyst. Except the bare opinion and assertion that the muddamal article was "Charas" there is indeed nothing on the basis of which this Court can independently test and assess the truthfulness and genuineness of the said Public Analyst's Report Exh. 12. In such serious cases under the Narcotic Act, where rightly the Legislature has prescribed stringent punishment of R.I. for not less than 10 years which may as well extend to 20 years and also liable to fine which shall not be less than one lakh rupees, and the same may also as well extend to two lakh rupees, if on the one hand bald assertions of the Complainant-Police Officer and thereafter the F.S.L. report which indicates jumping to the conclusion rather than any analysis is to be mechanically accepted, without testing the same, it would be simply hazardous and risky to convict and sentence the accused on such laconic evidence. We are quite conscious of the fact that the Narcotic offences like most contiguous dreadly disease, is fast spreading in our society. It is not less deadly than the dreaded disease like Cancer and AIDS, and therefore, once a person is found to have committed the said offence, there indeed cannot be any question of showing any mercy to him, but at the same time, if the prosecution stops at mere allegations against the person of having committed Narcotic offence without there being any dependable verifiable evidence in support of the same, by way of report of the Public Analyst, it would indeed be totally imprudent and unjust to act upon the same. In fact, in such type of cases under the Narcotic Act, every Public Analyst must be alert, honest, conscientious and copy-book exact in discharge of his important duties, viz., preparing the final report. The duties of the Public Analyst mainly consist three important dimensions - (1) At the time of the receipt of the sample for analysing from the concerned Investigating Agency, (2) Actually analysing the sample and (3) Despatching back the Report of analysis to Investigating Agency. Accordingly, to start with -firstly, when the Public Analyst receives a packet containing sample of muddamal, he must invariably note-down the following material particulars:

(i) Reference No. & Date of the forwarding letter of Investigating Agency.

(ii) Name of the Accused.

(iii) Offence under Section--of the Narcotic Act.

(iv) Date of offence,

(v) C.R. No.

(vi) Police Station at which it is registered,

(vii) Total Number of Packets received,

(viii) Whether seals on the sample were intact or not?

(ix) Whether the Seal on the sample were readable and/or,

(x) Comparable with the specimen seal sent alongwith forwarding letter of the Investigating Agency.

(xi) Date of receipt of the report, (xii) Date of Analysis of sample.

(xiii) Whether on opening the packet, slips containing signatures of the Panchas, accused and that of the Investigating Officer are there or not?

(xiv) Weight of the muddamal article, etc.

8. All these as far as possible should be meticulously reflected in the Analyst's report itself for the simple reason that these material particulars are very much necessary in order to compare and establish the identity of the muddamal sample with the one seized and sealed from the accused under Panchnama, and thereafter forwarded by the Investigating Agency to the Public Analyst and ultimately despatched back to be produced before the Court as the very same only and none other. Secondly, while analysing muddamal sample, he must specifically mention the scientific tests conducted and the results derived therefrom. If by chance in hurry or haste or through oversight, the scientific tests are not mentioned in the report, that is fatal to the prosecution as any ipse-dixit way of reporting cannot be accepted in criminal trial as it has no probative evidentiary value in the eye of Law ! Thirdly, even after carefully discharging the aforesaid two duties, the Public Analyst has further still to discharge one more duty, viz., to send the report of his analysis to the Investigating Agency under its official seal. It is precisely upon the careful discharge of the aforesaid two duties that the fate of the accused on the one hand and that of the prosecution on the other depends, and in a given case, any slip either at the end of the Investigating Agency while seizing and sealing the sample or at the end of public Analyst while receiving and analysing the same is committed, the same can prove fatal to the prosecution. Further, the Public Analyst cannot afford to forget that he was sending his opinion report to be used in a criminal trial which brooks no negligence or doubt ! Any remissness, therefore, on the part of Public Analyst in discharge of the aforesaid duties, like nacked electric wire permits no mistake to prove fatal ! He should also further know that his opinion is admissible merely on the ground that he being an expert. In other words, merely because by virtue of section 293 of the code, his report could be admitted in evidence and exhibited without giving evidence before the Court that by itself does not mean that the same is to be accepted straightway as a conclusive proof of evidence against the accused, more particularly when it does not contain even a grain of material indicating on what scientific tests his opinion was arrived at. Before the evidence of Public Analyst can be safely accepted and relied upon to base the order of conviction and sentence, the Court must have an opportunity of its own to independently assess and appreciate the same on the basis of scientific tests, etc. Instead, if the Court is to surrender to any bare opinion of the Public Analyst, that can amount to abdication of its judicial function, relegating itself to mechanically record the order of conviction and sentence without doing anything else ! The view that we are taking is duly supported by the observations made by Mr. Justice P.N. Bhagwati, as he then was, in case of Suleman Usman Memon v. State of Gujarat, reported in , wherein at page No. 410, it has been o as under:

It is not enough for the Chemical Examiner merely to state his opinion as to what was the concentration of alcohol in the sample of the blood analysed by him. The report of the Chemical Examiner must show the tests or experiments performed by him, the factual data revealed by such tests or experiments and the reasons leading to the formation of the opinion from such factual data. This legal proposition emerges clearly and unmistakably if one bears in mind the true nature of the evidence furnished by the report. The report contains the opinion of the Chemical Examiner as regards the concentration of alcohol in the sample of the blood examined by him and such opinion is admissible in evidence under Section 45 of the Indian Evidence Act. Whether the concentration of alcohol in the blood of the accused was not less than 0.05 per cent is a point in issue and the Court has to form its own conclusion or opinion on that point. Ordinarily, the opinion of third persons are irrelevant and the witnesses must deposed to only those facts of which they have personal knowledge, i.e., what they themselves saw or heard or persived by any other sense or in any other manner, (vide Section 60 of the Indian Evidence Act.) There are, however, cases in which the Court is not in a position to form a correct judgment without the help of persons who have acquired special skill or experience on a particular subject, eg, when the question involved is beyond the range of common experience or common knowledge or when special study or a subject or special training or special experience in it is necessary. In such cases, the help of the expert is required and the rule is, therefore, relaxed and expert evidence is admitted to enable the Court to come to a proper decision. Sections 45 to 51 of the Indian Evidence Act enumerate the cases in which expert evidence is allowed to be admitted. Section 45 provides that when the Court has to form an opinion upon a point of Foreign Law. or of science or act, or as to identity of hand writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of hand-writing or finger impressions are relevant facts and can, therefore, be received in evidence. The point as to what was the concentration of alcohol in the blood of the accused is essentially a point of science and the opinion of the Chemical Examiner on that point is, therefore, admissible in evidence under Section 45 of the Indian Evidence Act. It must, however, be remembered that the opinion of the Chemical Examiner is merely a piece of evidence on the point regarding concentration of alcohol in the blood of the accused and it is the Court which has to form its opinion on the entire evidence as to whether the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. The report of the Chemical Examiner containing his opinion must, therefore, disclose the factual data on which the opinion is based and the reasons in support of the opinion. Opinion is no evidence unless the reasons in support of the opinion are given, for it is then only that the Court can scrutinize the reasons and decide for itself as to what weight should be attached to the opinion.

9. Now turning to the facts of the present case, on carefully examining the Analyst's report at Exh. 12, except jumping to the conclusion that the muddamal sample was "Charas" there is no other data whatsoever on the basis of which this Court can independently assess and appreciate the same ! The submission of the learned A.P.P. that the two decisions of this Court (supra), relied upon by Mr. Saiyed being in cases under Prohibition Act and that they had no application whatsoever to the present case under the Narcotic Act has no substance. In fact, what is to be borne in mind in such type of cases is not under what particular Act the offence is alleged to have been committed but what is important is whether the report of Public Analyst on the basis of which accused can be connected with the crime alleged against him contains full and complete data of scientific tests, etc., or not ! Accordingly, once Analyst report in question suffers from the basic infirmity, like the one noticed in the present case, the prosecution has to go home. In this view of the legal position, we have been left with no alternative but to give benefit of the said remissness of the Public Analyst to the appellant-accused.

10. While parting, we would be just failing in our duty if we do not make certain observations in the matter of care and circumspection to be observed by the Investigating Agency and the Public Analyst while seizing, sealing and dispatching the muddamal article to the Public Analyst and the Public Analyst in his turn preparing the report. In this case, the appellant has been given benefit of acquittal simply because of the patent remissness on the part of the Public Analyst while submitting his report! This does not necessarily mean that either the P.S.I, who seized and sealed the muddamal 'Charas" in presence of Panchas, and the Public Analyst who examined and opined the same as a "Charas" are necessarily false ! It is only because of the technical miss on behalf of the Public Analyst viz., of not mentioning data of the scientific tests/experiments, etc., that this Court has no alternative but to resolve the lingering doubt in favour of the accused. Under such circumstances, it appears to us that when the Legislature with its utmost anxiety, with a view to protect the youth of our country from the ruinous influence of drugs has come out with a special Act, viz.. Narcotic Drugs & Psychotropic Substances Act, 1985 with stringent punishment, if not more, atleast the very same care and anxiety is not shared by the Law Enforcing Agencies, we are afraid that the desired goal of overall social interest can never be brought home ! Therefore, in order to see that the Legislative intent is realised to the utmost hilt, the investigating machinery should be properly trained so as to see that it leaves no lacuna for doubt to ultimately give accused an upper-hand, and thereby steal undeserving acquittal. Even the Department of Public Analyst is required to be told as to in what copy-book manner such reports are required to be prepared, to be accepted and depended by the Court. The matter does not and indeed cannot simply rest here, as in cases where the accused are acquitted on the ground of any prima facie negligence on the part of either the investigating officer, for example (i) of not sealing the sample properly; (ii) not selecting the proper Panchas; (Hi) allowing the situation to be developed whereby tampering of the sample becomes possible; (iv) not despatching the sample immediately; (v) not following the directions given under the provisions of Narcotics Act and/ or of the Public Analyst not preparing the report in a copy-book manner disclosing full and complete test of experiment performed, etc., the departmental proceedings should at once be initiated against them because of whose negligence only the accused person gets undeserving acquittal(s) ! In this view of the matter, at the cost of repetition, it may be stated that when the Legislature has come out with such an special Act like "Narcotic Act", the same shall have to be enforced, if not with more then atleast with the same amount of zest and zeal, and whosoever is found negligent in investigating the case or giving the report of analysis, they deserve to be condemned as much as the persons who are accused of the Narcotics offences ! It is only when with such spirit and vigilance the Narcotic Act is enforced, that one can expect the real beneficial results available to the Society ! In fact, whenever Legislature comes out with a Special Act, bearing in mind the anxiety of the Legislature, the Government should also prepare a sort of Refresher Course for imparting special training to its Law Enforcing Agencies with a view to see that Legislative intent is not just aborted for want of proper understanding of law, procedure and technicalities to be observed. No doubt, the Law is a powerful weapon for ushering in the better socio-political and economic revolution by regulating, controlling and eradicating the prevailing ailments from which the Society suffers. However, its reformatory and revolutionary efficacy and the resultant impact ultimately depends upon the dedication to duty of the concerned authority to which its enforcement is entrusted. Just like a delicate sophisticated instrument, the Law also requires expertise knowledge of handling the same. If that expertise knowledge is not imparted, howsoever costly and sophisticated the instrument in question may be, that will not be of any assistance and likewise also, howsoever the lofty the ideals and the object of the particular Act may be, the same shall remain a lifeless show-piece, sometimes getting misfired also ! On the one hand to have such an important highly beneficial legislation and at the sametime, on the other hand, not to have trained Law Enforcing Machinery to implement the same, is something like heart full of dreams, resolutions and resolves but the hands and feet falling short to make good the same. Once the legislature passes any Special Act the Government must first of all concentrate on educating the Law Enforcing Agencies so that the legislative intent reaches its desired goal and does not wander away because of the lack of training alone. We often come across best of the Legislations, with best of its goals many a times just failing to deliver the desired result only because the Law Enforcing Agency is unable to march, cope up and keep rhythm with the wisdom, zest and zeal of the legislature. In this view of the matter, imparting of special training to the Law Enforcing Agencies is one way to obtain the best of the results under the Special Acts. The other way to obtain the same is - whenever the accused gets acquittal because of some patent lapse and/or negligence either on the part of the concerned Police Officer and/or Public Analyst, as the case may be, the superior officer should issue notice calling upon them to show-cause as to why departmental proceedings should not be initiated against them. In case, if it is ultimately found out that the lapse was patent and unpardonable, and there is no reasonable explanation to be offered, the concerned authority should not feel any hesitation in taking steps deterrent enough against such erring officer(s) with the object to serve the purpose, and with a view that the said lapse does not occur in future ! For this purpose, in every such case, the trial Court should see to it that once the negligence or lapse of the public servant is noticed in discharging his duties, the same should at once be brought to the notice of his immediate superior officer by forwarding a copy of judgment and order with special observations in the said regard. Not to perform this duty at times can amount to serious dereliction of duty on the part of concerned Court. It is pertinent to note that under section 69 of the narcotics act, protection is provided to the officer, if the action is taken in 'good faith'. But, in our opinion, such a protection will cease to render any assistance to the concerned Police Officer or Public Analyst, as the case may be, once the authority concerned makes inquiry and reaches to the conclusion that the lapse could and should have been avoided and yet but for the patent negligence was not avoided. Accordingly, the trial Court should also forward a copy of judgment and order to (i) The Secretary, Home Department, Government of Gujarat, Sachivalaya, Gandhinagar, (ii) The Director General of Police, Gujarat State, Ahmedabad, and (iii) Head of Department of the concerned Officer of Public Analyst, for information and necessary action. And thirdly, in matter of every Special Act like Narcotics Act, at some regular intervals stock of the situation should be taken, that is to say as to out of total, how many Narcotic prosecution cases, the prosecution was successful and in how many it failed and on what grounds. On the basis of constant monitoring like this, what future course for action should be charted out to secure better results, should be the anxiety of the higher ups in the State administration.

11. Incidentally, it is also further required to be observed that in all cases under the Narcotics Act when Investigating Agency depatches the muddamal articles to Forensic Science Laboratory for obtaining its report, in its forwarding letter the name of muddamal sample is also described. For example, in the present case, muddamal was named as 'Charas'. In our opinion this practice of naming or describing the muddamal substance in advance, as far as possible, should be refrained from. The reason is that these days, the office of Public Analyst is already over-burdened with number of muddamal articles to be analysed and what ought we know that in absence of sufficient staff, reeling under the acute pressure, coupled with lack of sense of duty, with a view to have sigh of relief from pilled-up work, it may mechanically report back that the sample analysed was the same as named or as described in the forwarding letter ! This may not happen in all cases, but by chance if the said human failing gives way, in a given case, it can play havoc with the cause of justice. We do not for a minute indeed want to lay down the law that if the Investigating Agency while forwarding the sample to F.S.L. for analysis names the muddamal the same would be fatal to the prosecution case. What we say is what the Investigating Agency is required to take special care with a view to see that Public Analyst may not mechanically prepare report by naming the substance as the one named in the forwarding letter.

12. In view of the aforesaid discussion, since the patent infirmity noticed in the report of Public Analyst is found to be fatal to the prosecution, it is indeed not possible to uphold and sustain the order of conviction and sentence against the appellant-accused, and accordingly, he deserves to be given benefit of doubt and acquitted.

13. In the result, this appeal is allowed. The impugned judgment and order of conviction passed against the appellant is quashed and set aside. The appellant-accused is ordered to be set at liberty forthwith, unless his presence is required in Jail in connection with any other case. Office is directed to send a copy of this judgment to (i) The Secretary, Ministry of Home Affairs, Government of India, New Delhi, (ii) The Director General, Narcotics Control Bureau, New Delhi, (iii) The Secretary, Home Department, Government of Gujarat, Sachivalaya, Gandhinagar, and (iv) The Director General of Police, Gujarat State, Ahmedabad, for information and necessary action.