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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRAKASH D. NAIK, J.
State of Maharashtra – Petitioner
Versus
Dharamraj Baburao Kalokhe and Others – Respondents
Cri. W.P. No. 4450 of 2015
Decided On : 26-07-2018
Constitution of India - Article 227 - NDPS Act - Sections 8(c), 21, 29 - Code of Criminal Procedure - Section 482 - Drugs and Cosmetics Act, 1940 - Section 25(4) - Prevention of Food Adulteration Act, 1954 - section 13(2) - Central Excise Rules, 1944, - Rule 56 - The brief facts of the prosecution case are as follows:- Secret information police attached to Police Station apprehended and his neighbour while removing the stock of 112 kg of Mephedrone (M.D.) from his house at Satara and registered the case under NDPS Act - Kalokhe was arrested. During the course of investigation, he disclosed that contrabands seized - It was also disclosed that her son had transported these contraband from Pune to Mumbai - News item was published in Daily Marathi Newspaper stating that 100 kg drugs were found in the house of police constable attached to Marine Drive Police Station - house of police constable is situated at village - (c) Senior Officers (Additional Commissioner of Police, South Region Mumbai, Dy. Commissioner of Police Zone-1, Mumbai) directed Senior Police Inspector of Marine Drive Police Station and others to conduct the search of personal cupboard of police constable Kalokhe situated at Police Station in the presence of panchas and seize the contrabands if found in accordance with the procedure under N.D.P.S. Act. As such, the Senior Inspector of Police attached to Marine Drive Police Station conducted search of the cupboard kept at the police station by the aforesaid person, in the presence of officer deputed from Anti Narcotics Cell, Police Inspector Gokhale attached to said cell – Held, paragraph 24 of the said decision it was stated that while retesting and re-sampling may be an important right of accused, haphazard manner in which the right is imported from other legislations without its accompanying restrictions is impermissible. In the light of the said observations, it was further stated that re-testing and re-sampling are rampant at every stage of the trial contrary to other legislations. In the case of Karu Lal (supra) the Court was concerned with the second report which was ordered to be provided without any valid ground and in the case of Laxmi Nagappa Koli (supra), FSL Mumbai had given opinion that it did not have sufficient infrastructure to test the sample provided to it by the respondent and as such required respondents to have the same tested by another laboratory. It is pertinent to note that the sample which is sought to be re-examined in the pre-sent case also by the same laboratory. Court further observed that separate sample was sent to Forensic Laboratory which clearly recorded a conclusion that the sample contained Paracetamol and Fervunulin and report was clear and specific. In the circumstances, Court took a view that it is not necessary to forward the third sample for testing before another Forensic Science Laboratory, in terms of the observations made by this Court in Thana Singh’s case. It was further observed that the report submitted by the Forensic Science Laboratory, Hyderabad cannot be ignored - Petition allowed.
1. The petitioner/State of Maharashtra has preferred this petition under Article 227 of Constitution of India. The petitioner have also invoked the inherent power of this Court under section 482 of the Code of Criminal Procedure. The petitioner is aggrieved by order dated 17th August, 2015 passed by Learned NDPS Special Judge, City and Sessions Court, Greater Bombay in NDPS Special R.A. No. 88 of 2015 rejecting application preferred by prosecution for re-sending/re-sampling. The offences were registered vide C.R. No. 16 of 2015 under sections 8(c), 21, 29 of NDPS Act read with section 66(1)(b) of Bombay Prohibition Act. The investigation was conducted by Marine Drive Police Station which was subsequently transferred to Unit-1, DCB CID, Mumbai.
2. The brief facts of the prosecution case are as follows:-
(a) On 9th March, 2015, acting upon the secret information police attached to Satara Police Station apprehended Dharmaraj Kalokhe and his neighbour while removing the stock of 112 kg of Mephedrone (M.D.) from his house at Satara and registered the case under NDPS Act. Shri Dharmaraj Kalokhe was arrested. During the course of investigation, he disclosed that contrabands seized by police belong to Smt. Shashikala @ Baby Ramesh Patankar residing at Mumbai. It was also disclosed that her son Satish Ramesh Patankar had transported these contraband from Pune to Mumbai.
(b) On 10th March, 2015, news item was published in Daily Marathi Newspaper stating that 100 kg drugs were found in the house of police constable attached to Marine Drive Police Station, Mumbai. The house of the police constable is situated at village Kanheri, Tal. Khandala, District Satara.
(c) The Senior Officers (Additional Commissioner of Police, South Region Mumbai, Dy. Commissioner of Police Zone-1, Mumbai) directed Senior Police Inspector of Marine Drive Police Station and others to conduct the search of personal cupboard of police constable Dharmaraj Kalokhe situated at Marine Drive Police Station in the presence of panchas and seize the contrabands if found in accordance with the procedure under N.D.P.S. Act. As such, the Senior Inspector of Police attached to Marine Drive Police Station conducted search of the cupboard kept at the police station by the aforesaid person, in the presence of officer deputed from Anti Narcotics Cell, Police Inspector Gokhale attached to said cell. On search, the police found 11 kg. 976 gms. Mephedrone (M.D.) drugs covered under N.D.P.S Act and other objectionable material in the cupboard. The said drug and other articles were seized under the panchanama in accordance with the procedure prescribed under NDPS Act. FIR was registered on the same day with Marine Drive Police Station against constable Dharmaraj Kalokhe.
(d) Marine Drive Police Station took custody of accused Dharmaraj Kalokhe and Satish Patankar on 24th March, 2015 and 14th April, 2015. During the course of investigation, the role of Sashikala Patankar was confirmed. She was later arrested on 22nd April, 2015. The investigation was then entrusted to DCB-CID.
(e) During the course of investigation, Smt. Sashikala Patankar revealed that she had procured 150 kg Mephedrone from one G. Manikkam Samuel R/o Wadala who in turn got the same from one Paulraj Duraisami Padaiyachi from Tamil Nadu. During the course of further investigation, involvement of several persons was came to light which included police personal. While investigation was in progress, the Investigating Officer received negative FSL report regarding sample sent by earlier Investigating Officer to Forensic Science Laboratory, Kalina Mumbai.
(f) On 29th May, 2015, the Investigating Officer applied for re-sampling of material seized. The application was rejected on 17th August, 2015.
3. Learned Public Prosecutor Shri Thakre made the following submissions.
(i) The application for re-sampling was preferred within stipulated time.
(ii) There is no violation of the directions of the Supreme Court in the case to Thana
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