( 1 ) THE settled position in law is that it is open to Magistrate to take cognizance of offences upon a police report submitted under Section 173 (2) ot the Code of Criminal Procedure even when itdoes not include the report of experts. The question is sought to be re-agitatd in the two connected petitions. The pleas urged betore us in Cr. Writ No 622/88 filed by Kishan Lal and Cr. M. (M) No. 1 132/88 tiled by Gurdev Siagh are that the investigation tor the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (lor nhort the NDPS Act) cannot be held to becomplete without obtaining the opinion of the expert and, therefore, the cognizance of the said offences under Section 190 (l) (b) of the Code of Criminal Procedure (for short the Code) is not permissible.

( 2 ) THE petitioners in two different cases were arrested tor offences under various Sections of the NDPS Act on two different dates. They were refused bail and remanded to judicial custody. The report under Section 173 (2) of the Code in Gurdev Singh s case was filed on 90th day of his arrest and in the case of Kishan Lal, befort the expiry of 90 days. Acting on those reports, the Magistrate concerned took cognizance of the offences and remanded the accused to judicial custody. The admitted fact is that opinion of the Central Forensic Science Laboratory by then bad not been received by the Investigating Officer. It is the further admitted position that during the pendency of these two petitions before us, the reports of the Government Expert in the respective cases were received and filed before the courts concerned. Those reports show that the samples from the seized commodity in the case of Gurdev Singh were of "poppy Straw" and in the case of Kishan Lal, "charas", both falling within the ambit of the NDPS Act.

( 3 ) GURDEV Singh filed a petition (Cr. M (M) No. 1132/88) under Section 439 of the Code seeking bail on the ground that cognizance taken by the Magistrate on an incomplete report was vitiated and, therefore, as thand investigation was pending, he was entitled as a matter of right to the grant of bail after 90 days of his arrest under Section 167 (21 of the Code. The) learned Single Judge, before whom the petition was listed, was of the considered opinion that the question raised was of considerable importance and, thus referred the matter to a larger bench.

( 4 ) THEREAFTER the other petitioner, Kishan Lal filed a separate petition under Article 226 of the Constitution of India seeking issuance of a writ of Habeas Corpus for his immediate release on the plea that his detention in judicial custody after 90 days of his arrest, was without the authority of law. We issued Rule and directed that petition to be heard alongwith the bail petition of Gurdev Singh as the pleas in the two cases were common. This judgment disposes of both the petitions.

( 5 ) THE question raised by the petitioners in a nut shell is whether the investigation of a case under the NDPS Act can be said to be complete in the absence of the report of the Scientific Officer and Chemical Examiner ? The contention is that where the accused person is allegedly found in possession of or transporting a prohibited drug Or substance, mainly two facts have to be established by the prosecution viz. , (I) that of recovery of the commodity or substance and (2) that the possession of the said recovered material is illegal under the provisions of the NDPS Act. It is submitted that the Investigating Officer would be unable to give his opinion regarding the second aspect till he obtains the report of the expert and, therefore, the report submitted by the Investigating Officer even if purported to be under Section 173 (2) of the Code, must be he!d to be based on incomplete investigation.

( 6 ) THE learned Single Judge in his reference order has noticed that the reported cases in which this question has been settled related to offences under the Indian Penal Code. it was urged