2021 (1) TMI 1054 - HC - Indian Laws

Maintainability of application - prosecution to draw second sample from the recovered case property - Smuggling - Heroin - HELD THAT - The impugned order cannot be sustained and is bound to be set aside, since the case in hand is squarely covered by the judgments referred to by the learned counsel for the petitioner and in Amarjit Singh's case 2011 (3) TMI 1805 - PUNJAB AND HARYANA HIGH COURT , this eventuality has been dealt with holding that re-drawing of sample cannot be got done by the prosecution simply because it is not satisfied by the report received with regard to the first sample sent to the FSL. Petition allowed.

Summary

Issues:
Quashing of impugned order allowing second sample from recovered contraband under NDPS Act.

Detailed Analysis:
The petitioner, an accused in an NDPS Act case, sought quashing of an order allowing the prosecution to draw a second sample from the recovered contraband. The prosecution's story involved the accused being apprehended with contraband and subsequent testing of samples. The State, unsatisfied with the initial report, sought permission for a fresh analysis by drawing another sample. The Sessions Judge accepted the application, leading to the petitioner's grievance and subsequent petition under Section 482 Cr.P.C.

The petitioner relied on judgments emphasizing restrictions on re-testing under the NDPS Act. Specifically, the Apex Court's directive highlighted that re-testing should not be a matter of course and must have compelling reasons recorded by the Presiding Judge. Additionally, a Division Bench judgment of the High Court emphasized that the prosecution cannot seek re-testing simply due to dissatisfaction with the initial report without valid reasons.

The Court, after considering the arguments and legal precedents, found that the impugned order allowing the second sample could not be sustained. Citing the Division Bench judgment, the Court held that the prosecution cannot request re-testing based solely on dissatisfaction with the initial report. As the present case fell within the scope of the legal principles outlined in the judgments referred to by the petitioner, the Court allowed the petition and set aside the order passed by the Sessions Judge, thereby quashing the permission for drawing a second sample from the recovered contraband.

In conclusion, the Court's decision was based on the legal principles governing re-testing under the NDPS Act, emphasizing that re-drawing of samples should not be permitted solely due to the prosecution's dissatisfaction with the initial report. The judgment highlighted the importance of adhering to legal restrictions on re-testing and the need for valid reasons to justify such requests, ensuring a fair trial and upholding the accused's rights in criminal proceedings under the NDPS Act.