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1. This Appeal takes exception to the Judgment and Order passed by the Special Judge under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') for Greater Mumbai dated March 3, 2000 in N.D.P.S. Special Case No.248 of 1992. The Appellant was charge-sheeted and tried for offence under Section 22 r/w Section 8(c) of the Act and has been found guilty of that offence.

2. In short, the prosecution case is that on 12th August 1992 Police Inspector Suresh Ramchandra Pawar (PW 1) of Narcotic Cell of Ghatkopar received information about the description of the person who was suspected to deal in Mandrax tablets and in furtherance of his design, was expected to arrive near Alfa Medical Store in the evening between 6.00 p.m. and 6.30 p.m. The information so received was reduced into writing and communicated to Deputy Commissioner of Police and arrangement for trap was made at the office. Two independent persons were called to act as panchas. After pre-trap formalities were completed, the raiding party reached near bus stop at Alpha Medical Store when person resembling the description of Appellant/accused was spotted. He was moving in suspicious manner. After observing the conduct of the Appellant for a while, the police party approached the Appellant and informed their intention to take his search for suspected possession of Narcotics, i.e. Mandrax. He was also informed that he had right to be searched before Gazetted Officer or Magistrate. After necessary formalities were completed, search was taken. It was found that the accused was carrying plastic bag, which contained eight plastic packets consisting of tablets. Some tablets were removed from the said packets and test was conducted on the spot with the help of Kit, which was taken by the police party. The tablet tested positive for Mandrax (Methaqualone). The packets recovered from the plastic bag possessed by the Appellant weighed about 4 kgs. Necessary formality of preparing samples to be forwarded to the Chemical Analyser was also complied with. The Appellant was arrested in connection with possession of contraband item. During the interrogation, on 14th August 1992, Appellant/accused desired to make statement which was recorded in the presence of two independent persons. The Appellant/accused volunteered to point out place of concealment of substantive quantity of Methaqualone tablets. After the statement was recorded at the instance of the Appellant/accused, police party along with the panchas proceeded to the place as per the instructions of the Appellant/accused being Room No.73, Parmanand Wadi, 25/B Thakurdwar road, Mumbai. The room was found locked. It was opened by the Appellant/accused with the available keys. On entering the room the Appellant pointed out six cardboard boxes containing Mandrax tablets, one icon concealed in wooden box, which were taken charge of. The tablets found were tested on the spot with the help of Kit taken by the Police Officer. The tablets tested positive for Mandrax (Methaqualone). The total weight of the tablets recovered from the said spot at the instance of the Appellant was 99 kgs. Sample from the said bulk was taken for being forwarded to the Chemical Analyser for his opinion. The Chemical Analyser's report was received which indicated the result of analysis as Methaqualone Diphenhydramine Hydrochloride. The Chemical Analyser also indicated the percentage of Methaqualone present in the said samples. After investigation was complete, charge-sheet was filed. The Appellant was tried by the Special Judge under the Act. Following charge was framed against the Appellant:

C H A R G E I, K.O.Chandiwal, Esqr. Spl. Judge under NDPS Act 1985 for Greater Mumbai do hereby charge you Pradeep Ramniklal Bhat as under:

FIRSTLY : That you accused abovenamed on 12.8.92 at about 18.15 hours near Bus stop at ALFA Medical Store, V.P. Road, C.P. Tank, Mumbai were found in possession of 4 kgs. of mandrax tablets a psychotropic substance valued at Rs. 40,000/- and cash of Rs. 225/-in contravention of the provisions of Section 8(c) of NDPS Act and thereby you have committed an offence punishable Under Section 22 r/w 8(c) of NDPS Act 1985 and within my cognizance. SECONDLY : You accused abovenamed on 14.8.92 led the police at room No.73, 25/B Thakurdwar Road, Bombay and in said room you were found in possession of 99 kg. of mandrax tablets a psychotropic substance valued at Rs.9,90,000/- and one Antiq of Lord Parswhanatha, in contravention of the provision of Section 8(c) of NDPS Act, 1985, and thereby committed an offence punishable Under Section 22 r/w 8(c) of NDPS Act, 1985, and within my cognizance. AND I DO HEREBY DIRECT YOU to be tried by me for the aforesaid charges.

13. In the present case, the lower Court has answered the issue in three ways. Firstly, it has observed that the Chemical Analyser's reports which have come on record (Exhibits 19 to 22) were trustworthy and could be relied upon. It has then noted that the said reports clearly specify that the articles which were received for analysis by him were sealed and in intact condition and further that the chemical analysis was done which indicated the constituents of the said articles and also specifically gives the percentage of the contents of Methaqualone. The Trial Court has then proceeded to hold that there was other evidence on record to support the prosecution case. Inasmuch as, the discovery of contraband item weighing 99 kgs., which was in conscious possession of the Appellant, kept in concealed manner in a house, has been proved, which evidence was admissible in terms of Section 27 of the Indian Evidence Act. Investigating Officer (PW 1) as well as the panch witness (PW 3) and (PW 7) have spoken about the discovery of the said articles at the instance of the Appellant, which position is reinforced from the Memorandum Panchanama Exhibit 16. The Trial Court has also relied on the evidence of prosecution witnesses-Investigating Officer Suresh Ramchandra Pawar (PW 1), Panchas- Baban Haribhau Mate (PW 3) and Tanaji Keshav Nigade (PW 7) who have spoken about the fact of recovery of tablets made from the Appellant on 12th August 1992 during the trap as well as discovery of contraband items weighing 99 kgs. at the instance of the Appellant on 14th August 1992. On both these occasions, test was carried out on the spot with the help of testing Kit by the raiding police party and the same tested positive for Mandrax. The Trial Court has also referred to the evidence of Chandrakant Sukhadeo Joshi (PW 5) who is the landlord in respect of the house from where the contraband articles weighing 99 kgs. were recovered at the instance of the Appellant. On this basis, the Trial Court has rejected the argument of the Appellant.

17. The decision in the case of Nicklaus Peter Heel (supra) has been held to be not applicable by the Trial Court on such analysis. The Trial Court then proceeded to hold that the Chemical Analyser's reports in the present case with percentage of active ingredients of Methaqualone, leaves no manner of doubt about the presence of Methaqualone in the tablets.

18. The learned Assistant Public Prosecutor has placed reliance on the decision of Single Judge of our High Court in the case of Prabhakar Dhondiram Waghchaure v. State of Maharashtra reported in 2006 All M.R. (Cri.) 1664. In Paragraph 10 of this decision, it is observed that it is not possible to accept the submission made by the Appellant therein that on account of non-examination of the Chemical Analyser, no reliance can be placed on his report as there was no evidence to indicate the manner in which the sample was tested in the laboratory particularly in view of the fact that the Chemical Analyser's report was admitted by the defence in the Trial Court. The Court has also accepted the argument of the prosecution in that case that it was not open to challenge the Chemical Analyser's report and that, if the accused had challenged or objected to that report, the prosecution would have examined the Chemical Analyser. Here, I may mention that the Appellant, relying on the observation made in Paragraph 11 of the same decision, would contend that it was obligatory on the prosecution to prove beyond reasonable doubt that samples were taken out from the seizure made from or at the instance of the Appellant and the same samples were sent to the Chemical Analyser and after the same were properly tested after following the procedure and qualitative test by suitable chemical methods, the results thereof were obtained. Unless all these relevant facts are established by the prosecution beyond reasonable doubt, there was no occasion for the Appellant to challenge the Chemical Analyser's reports. It was argued on behalf of the Appellant that the weakness in the defence cannot be the basis to convict the accused. The prosecution will stand or fail on the basis of its own evidence. The argument seems to be attractive. However, the same is devoid of merits. The Chemical Analyser's reports are also a piece of evidence that has to be considered by the Court. In the present case, besides the Chemical Analyser's report, the prosecution has proved relevant facts to establish that during the trap, seizure was made from the Appellant. Samples were taken out from the said seizure and sealed by following necessary procedure. What is important to note is that not only the Investigating Officer but also the panch witnesses have deposed that the police carried out test on the spot with the help of Kit of the tablets from the bulk of tablets and the test indicated positive for Mandrax. The spot panchanama drawn also refers to this fact. However, in the entire cross-examination of any of these witnesses, there is no challenge whatsoever to these facts. Reference can be usefully made to the decision of the Apex Court in Kalema Tumba v. State of Maharashtra and Anr. . In Paragraph 5 of this decision, similar grievance was considered. In that case, it was argued that the report which was given by the Chemical Analyser was a cryptic report, for which reason, no reliance could be placed upon it. It was submitted that as the report did not contain details of the test, it had no evidentiary value. That argument has been negatived by the Apex Court on two grounds. The first reason recorded is that the accused himself had admitted in his statement under Section 108 of the Customs Act that the seized item was heroine. What is relevant for our purpose is the second reason taken into account by the Apex Court that, in that case, the evidence of the Officers of the Narcotic Control Bureau also, who had tested the substance found from the Appellant, speaks about the substance having tested positive during such test. Even in the present case, the witnesses have deposed that the seized articles were tested on the spot with the help of the Kit in the presence of panchas, which tested positively for Mandrax. That evidence has remained unchallenged.