JUDGMENT - M.F. SALDANHA, J.:---An issue of considerable importance has been canvassed on behalf of the original accused in this and the companion appeal which I am summarising below.

1) Whether in a criminal trial, the consequences of which could result in a heavy jail sentence to an accused the proof of the principal piece of evidence, namely, the Chemical Analyser's Report can be dispensed with by the prosecution which attempts to tender the document through the Investigating Officer without examining the Analysing Authority, and whether in the absence of the Chemical Analyst being presented as a witness the document itself can either be looked at or relied upon by the Court?

2. This and the companion appeal have been presented by the State of Maharashtra and challenge the judgments and orders dated 21-10-1983 of the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Bombay, whereunder the original accused in those cases came to be acquitted. It was alleged that on the morning of 16-1-1981 certain Police Officers attached to the Narcotics section of the Delhi Police Establishment apprehended the two accused of respondents at the Taj Mahal Hotel at Bombay and that they were alleged to have been in possession of small quantities of certain powder, of which samples were drawn and which, on analysis, was found to be heroin. The prosecution alleged that the accused had come to that place for purpose of handing over the heroin to a certain foreigner. The samples were forwarded for chemical analysis which indicated that it contained heroin. I shall have occasion to deal in some detail with the Chemical Analyser's Report which is vital in this case.

3. The accused were charge-sheeted for having committed offences punishable under the Dangerous Drugs Act, 1930, which was the statute at that time in force, and were accordingly put on trial. For some strange reason, the prosecution dispensed with its primary duty of examining the person who had signed the Chemical Analyser's Report and who ought to have proved its contents. Apparently, the prosecutions ought to take shelter under the provisions of section 293 of the Code of Criminal Procedure, 1973 and to tender this document through the Investigating Officer. It has been pointed out to me that the learned Defence Counsel objected to the admissibility of the report which objection has been noted by the learned Magistrate. Why a ruling was not given on the objection is not known, and I need to record that this is a highly unsatisfactory state of affairs whereby the validity of that document was kept in suspended animation. This is important, to my mind, because after noting the objection, the learned Magistrate took the document on record and it has, in fact, been marked as an Exhibit. If one were to assume that the objection was overruled, the learned Magistrate ought to have indicated it at that point of time because the future course of the trial could have been very different. It would have been open to the accused to challenge that order if they were so advised, or it could have been open to them to insist on the production of the witnesses, but the type of noting made by the learned Magistrate could have reasonably created an impression in the mind of the learned Defence Counsel that the matter was still very much open and that, consequently, there was no reason for the defence to take any further steps.

4. I have referred to this aspect of the matter because Mr. Ganatra, learned Counsel appearing on behalf of the respondent-accused, has very seriously attacked the admissibility of this document and on reliance being placed on it by the Court, and to my mind, with considerable justification. The learned A.P.P. has saught to overcome the hurdle by contending that in so far as the defence did not take any steps after merely having recorded the objection, the Court must conclude that virtually the document has come on record by consent. If that is so, then the objec

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