2019 (9) TMI 1273 - HC - Indian Laws

Smuggling - Brown Colored Powdery Substance - Section 67 of NDPS Act - acquittal of accused - Testing of samples - HELD THAT - It is pertinent to mention here that it is the duty of the courts, in the interest of justice, to understand that why the fresh samples were drawn on a date which was not in the knowledge of the petitioner/accused. Thus, raising a doubt on the entire process and bonafide case of the prosecution and that such discrepancy and illegality would ultimately result into the acquittal of the accused and therefore, there is no purpose of charging the accused and exposing them to the further harassment of trial which they have been facing since 03.12.2010. The order on charge dated 04.08.2017 is hereby set aside and the petitioners are discharged from the offences - petition is accordingly allowed with costs of ₹ 50,000/- to be paid by the Respondent in favour of Delhi High Court Legal Services Authority within 2 weeks from today, failing which, the Registrar General of this court shall ensure the recovery of the cost amount as per law.

Summary

Issues Involved:
1. Legality of the re-sampling and re-testing of the seized substance.
2. Validity of the charges framed against the petitioners under the NDPS Act.
3. Compliance with procedural requirements under the NDPS Act.

Detailed Analysis:

Legality of the Re-sampling and Re-testing of the Seized Substance:
The petitioners challenged the re-sampling and re-testing of the seized substance, arguing that it was contrary to the NDPS Act as there is no provision for sending samples for re-examination without specific grounds. The first sample tested on 28.01.2011 did not ascertain the presence of heroin. Subsequent samples also failed to show the presence of narcotic substances, with the third sample only showing caffeine. The fourth sample, however, revealed the presence of caffeine and phenobarbitone. The court noted that re-testing should be based on specific grounds, such as inadequate quantity or other reasons preventing proper testing. The court cited the Supreme Court's decision in Thana Singh v. Central Bureau of Narcotics (2013) 2 SCC 590, which restricts re-testing/re-sampling unless there are extremely exceptional circumstances supported by cogent reasons recorded by the Presiding Judge.

Validity of the Charges Framed Against the Petitioners Under the NDPS Act:
The petitioners sought to set aside the charges framed against them under Sections 21(c), 23, 28, and 29 of the NDPS Act. The court observed discrepancies in the reports of the samples, which created reasonable doubt about the prosecution's case. The initial samples failed to show the presence of narcotic substances, and the subsequent reports were inconsistent. The court emphasized that the trial court, in its haste to charge the petitioners, overlooked the principle that ignorance of the law is not an excuse and that illegality cannot be allowed to continue. The court found that the trial court ignored the discrepancies and proceeded to frame charges based on flawed re-sampling procedures.

Compliance with Procedural Requirements Under the NDPS Act:
The petitioners argued that the re-sampling was conducted without proper notice and authorization, violating procedural requirements under the NDPS Act. The court noted that the re-sampling conducted on 14.06.2011 was done without the knowledge of the petitioners, raising doubts about the entire process and the prosecution's bona fides. The court highlighted that the trial court ignored the fact that the bail granted to the petitioners was upheld by the High Court due to discrepancies in the sampling reports. The court stressed that re-sampling should be allowed only in extremely exceptional circumstances, and the trial court failed to adhere to this principle.

Conclusion:
The High Court set aside the order dated 04.08.2017 framing charges against the petitioners, discharging them from the offences mentioned. The court allowed the petition with costs of ?50,000 to be paid by the Respondent to the Delhi High Court Legal Services Authority within two weeks. The order was to be sent to all District and Session Judges for information and further dissemination to concerned parties.