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2007 (1) TMI 580 - HC - CustomsNarcotics laboratories - Re-testing provisions - 1500 grams of heroin were recovered - Two samples of 5 grams each were taken and sent to the CFSL Laboratory - contain 31.2% of diacetylmorphine - HELD THAT - It is clear that there is no bar for an accused under the NDPS Act to move an application for re-testing of samples. There is also no bar on the court allowing such an application. At the same time it does not mean that every such application moved by any accused under the NDPS Act ought to automatically result in the court allowing the same. The court has the power to allow or not to allow such an application. If the court upon considering the totality of circumstances comes to the conclusion that re-testing would be necessary then it ought to allow such an application. An illustration of a case where re-testing would be necessary is one given by the decision in Masoom Ali (supra) where the first test did not disclose the percentage content of diacetylmorphine and the second test became necessary for ascertaining the exact content so that the category of the offence u/s 21 of the NDPS Act could be ascertained. Another situation where re-testing could be permitted is as given in Kailash Singh s case 1988 (12) TMI 344 - DELHI HIGH COURT where doubts are created with regard to the tampering with the case property and or samples. In such a situation where legitimate doubts arise the court may permit re-testing. A third situation may be where in the course of the trial it is indicated that there is a possibility that the sample sent for testing did not match the case property. This can be discerned sometimes by marked differences in colour or other appearance to the naked eye. In all such situations it would be permissible for the court if it so feels to direct re-testing. These instances are merely illustrative. There may be other situations where it would be necessary for the court to direct a fresh sample being taken from the case property and being sent for testing if it feels that it would secure the ends of justice and help the court in arriving at the truth. Thus the impugned orders cannot be sustained. The same are set aside. The matters are remanded to the respective courts for consideration of the applications afresh. After hearing the counsel for the parties the respective courts shall pass the orders in accordance with law and the parameters indicated above.
Issues Involved:
1. Whether a direction can be given for the sending of a second sample for testing after taking the same from the remaining case property under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Detailed Analysis: 1. Factual Context and Prosecution Case: The case of Nihal Khan was considered for understanding the parameters of the issue. On 16.09.2002, the police received secret information about Nihal Khan supplying heroin. He was apprehended, and 1500 grams of heroin were recovered. Two samples of 5 grams each were sent to the CFSL Laboratory, which confirmed the presence of 31.2% diacetylmorphine. 2. Defense Argument and Application for Second Sample Testing:The petitioner claimed wrongful implication and tampering of evidence. An application dated 06.07.2006 was moved for sending a second sample for testing from the remaining case property. The Special Judge dismissed the application, referencing decisions in Kailash Singh v. State and Directorate of Revenue Intelligence v. Vinod Kumar. 3. Analysis of Kailash Singh v. State:The court in Kailash Singh observed that if the case property had been kept intact under proper seals, the accused could have prayed for another sample for analysis. This indicates the possibility of taking another sample for fresh analysis if the seals were intact, contrary to the impugned order's observation. 4. Analysis of Directorate of Revenue Intelligence v. Vinod Kumar:The decision in Directorate of Revenue Intelligence held that an accused under the NDPS Act had no right to request re-testing of the case property, emphasizing the admissibility of forensic reports under Section 293 of the Code. The court feared that allowing re-testing could lead to manipulations and malpractices. 5. Critique of Directorate of Revenue Intelligence Decision:Several difficulties were noted with the decision in Directorate of Revenue Intelligence. Firstly, it wrongly recorded that the plea of tampering in Kailash Singh was overruled. Secondly, it misunderstood the purpose of re-testing, which could be to demonstrate that the initial sample was not representative of the case property. Thirdly, there is no prohibition in the NDPS Act against re-testing. Lastly, the decision did not consider a prior judgment in Masoom Ali @ Ashu v. State, which allowed re-testing to determine the percentage of diacetylmorphine. 6. Supreme Court Reference in Commissioner of Customs v. Punjab Stainless Steel Industries:The Supreme Court case under the Customs Act assumed no bar in granting re-testing but emphasized the opportunity to cross-examine the Chemical Examiner. This reference was deemed inappropriate for the NDPS Act issue. 7. Conclusion and Remand for Fresh Consideration:It was concluded that there is no bar under the NDPS Act for an accused to request re-testing of samples, and courts can allow such applications if it advances the cause of justice. The impugned orders were set aside, and the matters were remanded to the respective courts for fresh consideration of the applications, following the parameters discussed.
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