IMPORTANT POINT
The court affirmed that under the N.D.P.S. Act, retesting of narcotic samples is permissible when initial tests are inconclusive, provided that the investigating agency follows the established guidelines and acts within the statutory investigation period.

JUDGMENT/ORDER

1. The Applicant has challenged the order dtd. 10/7/2023 passed by the learned Special Judge for N.D.P.S. at Mumbai. By the impugned order, the learned Special Judge allowed the application filed by the Respondent No.1 herein i.e. the Directorate of Revenue Intelligence, praying for sending the reserved sample for testing to CRCL, New Delhi. However, the learned Special Judge vide his order permitted the reserved sample to be sent to the Central Forensic Science Lab (CFSL) for testing. Gokhale

2. Heard Mr. Ayaz Khan, learned counsel for the Applicant, Mr. Amit Munde, learned Special P. P. for the Respondent No.1 and Mr. Arfan Sait, learned APP for the State/Respondent No.2.

3. Before referring to the submissions made by both the sides, it is necessary to mention some facts on record.

i) On the basis of specific intelligence, a passenger by the name Maheswaran Rajgopal Thondapa who had arrived in Mumbai through a flight from a foreign country on 19/3/2023 was intercepted. His luggage was searched. It resulted in recovery of 9.97kg of material in powder and lump form. It was tested by the field testing kit and the result showed positive for Heroin. It was valued at around Rs.70.00 crores. It was seized under the panchanama dtd. 19/3/2023. His statement was recorded U/s.67 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N.D.P.S. Act'). It led the investigating agency to the present applicant who was residing at a hotel in Mumbai.

ii) The investigating agency went to that hotel and further investigation was carried out. The applicant led the investigating agency to a rented house. The search resulted in seizure of 98 gms. of white powder purported to be Cocaine and 100gms. of light yellow powder purported to be heroin. It was seized. The investigation was carried out for commission of offences punishable under Sec. 21(c), 23(c), 28, 29 and 30 r/w. Sec. 8(c), as well as, U/s.25 and 27A of the N.D.P.S. Act. The applicant and the coaccused were arrested.

iii) On 19/4/2023, the procedure U/s.52A of the N.D.P.S. Act was carried out and two samples each of the three separate articles were drawn. They were marked as 'A1 original' and 'A1 duplicate', 'B1 original' and 'B1 duplicate', as well as, 'C1 original' and 'C1 duplicate'. The samples were drawn before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai.

iv) On 20/4/2023, the samples marked as 'A1 original', 'B1 original' and 'C1 original' were sent to the Deputy Chief Chemist (DYCC), New Custom House Laboratory, Mumbai for chemical analysis.

v) The test reports dtd. 30/6/2023 from DYCC, Mumbai in respect of those samples were received on 6/7/2023 by the investigating agency.

vi) The report in respect of 'A1-Original' reads thus - 'Received one sample packet marked as "A1-Original". The sample is in the form of brownish sticky pasty mass. On the basis of Chemical, Chromatographic and Spectrometric examination the sample does not show the presence of Heroin (Diacetyl morphine), Morphine cocaine, Amphetamine and Methamphetamine. However, for further identification/confirmation the sample may be forwarded to any other government laboratory, if required. (The bold portion is reproduced as it was mentioned in bold letters in that report).

vii) The report in respect of 'C1-Original' reads thus - 'Received one sample packet marked as "C1-Original". The sample is in the form of off white powder. On the basis of Chemical, Chromatographic and Spectrometric examination the sample does not show the presence of Heroin (Diacetyl morphine), Morphine cocaine, Amphetamine & Methamphetamine. However, for further identification/confirmation the sample may be forwarded to any other government laboratory, if required. (The bold portion is reproduced as it was mentioned in bold letters in that report).

viii) The report in respect of 'B1-Original' reads thus - 'Received one sample packet marked as "B1- Original". The sample is in the form of white