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TMI Blog2019 (9) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 19-9-2019 - HON'BLE MR. JUSTICE SURESH KUMAR KAIT Petitioners: Mr. Sundeep Srivastava, Mr. R.A. Worso Zimik And Mr. Paran Kumar Srivastava, Advs. Respondent: Mr. Harpreet Singh, Sr. Standing Counsel with Ms. Suhani Mathur, Adv. JUDGEMENT Vide the present petition the petitioners seeks directions thereby to set aside the order dated 04.08.17 passed by learned Additional Sessions Judge, Special Judge (NDPS), Dwarka District Court, Delhi in S.C. No.440324/16, whereby charges have been framed against the petitioner/revisionist for the offence punishable u/s 21(c), 23, 28 29 of NDPS Act, 1985. Case of the Petitioner is that on 01.12.2010, consignments for Singapore were intercepted at the Airport wherein the consignments were declared to be as Cosmetics items in the name of; 1. John Keneddy, 358 Alfreton Road, NG75NE, Nottingham, UK and 2. Ibonn Godlip, ARADUSVOGELHOF,1221 LL Hilwersome, Holland. On 02.12.2010, Sh. Deepak Jaiswal handed over both the parcels and two independent witnesses were called and in their presence, the boxes were opened. It is alleged that the First Box weighed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing on behalf of the petitioner submits that neither the statement of Revisionist No. l nor that of Ms. Lalramngai were on record nor any document which shows that efforts were made to place them on record. On 04.12.2010, statement of the accused was recorded voluntarily. Mr. Krishna Kant Kumar executive of the DHL was interrogated by the officials. On 06.12.2010 one Mr. Yogeshwar Prasad Inspector was authorised to deposit the samples at CRCL Delhi for testing. On 28.01.2011, first FSL report was received from the CRCL Delhi which observed that the presence of Heroine could not be ascertained . Remaining gross weight of remnant sample was 4.54 gms which was returned in a plastic pouch with a note: For further opinion, the samples may be forwarded to CFSL Hyderabad or any other Govt. laboratory, if required . The counsel for the petitioner further submitted that the prosecution on its own sent the remaining sample to CFSL Hyderabad for further testing on 15.02.2011. However, vide letter dated 18.02.2011, Hyderabad CFSL refused to analyze the remnant samples for the reason that the re- examination could not be done without the court order and the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule relating to psychotropic substance under the NDPS Act, the petitioner/accused was held guilty of offences punishable under Sections 22, 23, 24 and 29 of NDPS Act. Learned counsel further submits that the CFSL Hyderabad vide its letter dated 14.07.2011 had written to the Assistant Commissioner, Customs, New Delhi that Phenobarbitone and Phenobarbital are the same substance. The CRCL, New Delhi vide its letter dated 15.07.2011 had written to the Assistant Commissioner, Customs, New Delhi that Phenobarbitone is a synonym of Phenobarbital. Thereafter, the petitioners filed an application for bail which was listed before Special Judge, NDPS, ASJ, Dwarka Court and the learned Judge after hearing the argument as well as reply filed by the prosecution was pleased to allow the said bail application vide order dated 02.09.2011, by observing that the discrepancies in the reports of the samples which were drawn earlier from the recovered substance and the samples which were drawn later on with the permission of the Court Creates a reasonable doubt in the mind of the Court about the truthfulness of the case of the prosecution , hence the Petitioner deserves to be released on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort dated 06.06.2011, substance found was caffeine only. Thereafter, they further sought permission from the court and fresh sample for the fourth time was sent and thereon, two substances were found on 24.6.2011, one; caffeine and another was phenobarbitone. Thus, he submits that there is no ground in the present petition and same deserves to be dismissed. However, a decision of this Court rendered in the case of Nihal Khan v. State (Govt. Of NCT of Delhi), (2007) SCC Online Del 14; cannot be ignored, whereby the law with respect to the directions given for the sending of a second sample for testing under Narcotic Drugs and Psychotropic Substance Act, 1985 was stated as under: 16. In the light of the aforesaid discussion and reasoning, 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. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions have been in existence since 1985 and that the court is bound by the provisions of said act and it is incumbent upon the trial court to apply the same but the trial court continued to charge the petitioners for the offences mentioned in the charge sheet. The learned trial court also ignored the fact that the bail granted to the petitioners was upheld by this court on the ground that sampling was done more than once and there were discrepancies on the reports of the same. It clearly creates doubt on the case of the prosecution whereas, the learned judge passed the impugned order and completely ignored the said observation and proceeded to state that the orders of the re-sampling, since not challenged by the petitioners, have attained finality. Moreover, the learned judge has ignored the report dated 24.6.2011 in which the existence of phenobarbitone was found and the same was based on a fresh sample which was drawn without putting it in the notice of the accused on 14.6.2011, despite the order for re-sampling was earlier passed vide order dated 23.05.2011. It is pertinent to mention here that it is the duty of the courts, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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