Under the NDPS Act, an accused does not have the right to request re-testing of the case property and can only rebut or demolish the forensic science expert's report through cross-examination or produce another expert to counter the opinion given in the report.

( 1 ) THIS PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL procedure IS DIRECTED AGAINST AN ORDER DATE 19. 12. 2002 passed BY LEARNED SPECIAL JUDGE, NEW DELHI BY WHICH THE prayer OF THE RESPONDENT-ACCUSED FOR SENDING A SECOND sample OF THE CONTRABAND IN QUESTION TO ANOTHER laboratory FOR CHEMICAL ANALYSIS WAS ALLOWED AND FOR THIS purpose, THE CASE PROPERTY ALLEGEDLY RECOVERED FROM THE appellant WAS ORDERED TO BE PRODUCED IN THE COURT. I HAVE HEARD LEARNED COUNSEL FOR THE PETITIONER AND learned COUNSEL FOR THE RESPONDENTS. I HAVE GONE through THE RECORDS. LEARNED COUNSEL FOR THE PETITIONER HAS VEHEMENTLY ARGUED that UNDER THE NARCOTICS DRUGS AND PSYCHOTROPIC substances ACT (HEREINAFTER REFERRED TO AS "the ACT" only), THE RESPONDENT-ACCUSED HAS NO RIGHT TO GET ANOTHER sample TESTED FROM ANOTHER LABORATORY AND AS SUCH, THE impugned ORDER IS LIABLE TO BE SET ASIDE. IN SUPPORT OF his SUBMISSION, HE RELIES UPON A SUPREME COURT JUDGEMENT in "commissioner OF CUSTOMS VS. M/s. PUNJAB STAINLESS steel INDUSTRIES" REPORTED IN JT 2001 (6) SC P-146, A division BENCH JUDGEMENT OF PUNJAB and HARYANA HIGH COURT in "joginder KAUR VS. STATE OF PUNJAB" REPORTED IN 1979 clr (VOL. VII) P and H HIGH COURT P-101 AND ANOTHER judgement OF PUNJAB and HARYANA HIGH COURT IN "har PRASAD vs. STATE OF PUNJAB" REPORTED IN 1987 (2) CRIMES VOL. 7 page-675. LEARNED COUNSEL FOR THE RESPONDENT ON THE other HAND, ARGUES THAT AN ACCUSED HAS UNFETTERED AND undefeatable RIGHT TO LEAD ANY EVIDENCE IN DEFENCE WHICH may PROVE HIS INNOCENCE. HE RELIES UPON A JUDGEMENT OF delhi HIGH COURT IN "kailash SINGH VS. STATE" REPORTED IN 37 (1989) DLT P-145. AFTER CONSIDERING THE SUBMISSIONS MADE BY LEARNED COUNSEL for THE PARTIES AND GOING THROUGH THE JUDGEMENTS RELIED upon BY THEM, THIS COURT FINDS THAT THE APEX COURT IN THE case OF COMMISSIONER OF CUSTOMS VS. PUNJAB STAINLESS steel INDUSTRIES (SUPRA) WHILE DEALING WITH A QUESTION AS to WHETHER THE RESPONDENT COULD ASK OR NOT FOR RE-TESTING of THE SAMPLES UNDER THE CUSTOMS ACT, HELD THAT A REPORT of A CHEMICAL EXAMINER COULD BE DEMOLISHED BY THE respondent BY CROSS-EXAMINING HIM AND AS SUCH, THE VIEW taken BY THE TRIBUNAL THAT THE DENIAL OF OPPORTUNITY TO get THE SAMPLE RE-TESTED WAS VIOLATIVE OF THE PRINCIPLES of NATURAL JUSTICE COULD NOT BE SUSTAINED. IT WAS noticed THAT THERE WAS NO PROVISION IN THE ACT WHICH permitted RE-TESTING OF THE SAMPLES. HOWEVER, THE COURT did NOT GO INTO THIS QUESTION ANY FURTHER. THE DIVISION bench OF THE PUNJAB and HARYANA HIGH COURT IN THE CASE OF joginder KAUR (SUPRA), DEALING WITH A SIMILAR REQUEST under THE OPIUM ACT, CATEGORICALLY HELD THAT THE ACCUSED in HIS DEFENCE COULD NOT ASK THE COURT TO SEND ANOTHER representative SAMPLE TO THE SAME OR ANOTHER PUBLIC analyst FOR RE-TESTING. IT WAS HELD THAT THE ONLY RIGHT available TO HIM UNDER SECTION 293 OF THE CR. PC WAS TO get THE EXPERT CALLED FOR CROSS-EXAMINATION TO CHALLENGE his OPINION OR EXAMINE ANOTHER EXPERT WITNESS TO challenge THE OPINION EXPRESSED BY THE EXPERT ON WHOSE report THE PROSECUTION RELIES OR REBUT THE SAID OPINION with THE AID OF AUTHORITATIVE TEXT BOOKS. A LEARNED single JUDGE OF PUNJAB and HARYANA HIGH COURT IN THE CASE of HAR PRASAD VS. STATE OF PUNJAB (SUPRA) ALSO FOLLOWED the SAME VIEW RELYING UPON THE AFORESAID DIVISION BENCH judgement. THE JUDGEMENT OF DELHI HIGH COURT IN KAILASH SINGH VS. STATE WAS DEALING WITH THE PROVISIONS OF SECTION 50 OF the NDPS ACT BUT THE PLEA OF THE ACCUSED IN REGARD TO THE tampering OF THE CASE PROPERTY WAS OVERRULED OBSERVING that THE ACCUSED COULD HAVE PRAYED TO THE COURT FOR taking ANOTHER SAMPLE FROM THE REMAINING CASE PROPERTY for BEING ANALYSED. A PERUSAL OF THIS JUDGEMENT SHOWS that THE QUESTION OF THE RIGHT OF AN ACCUSED TO GET A sample DRAWN AGAIN FROM THE CASE PROPERTY FOR RE-TESTING was NEITHER DIRECTLY RAISED NOR CONSIDERED AND THE observations AFORESAID WERE ONLY PASSING REMARKS WHILE dealing WITH OTHER ARGUMENTS AND AS SUCH, HAVE TO BE HELD per INCURIUM. AFTER G