The absence of provision for re-testing of samples under the NDPS Act and the strict prohibition of re-testing/re-sampling under the NDPS Act unless in extremely exceptional circumstances with cogent reasons to be recorded by the Presiding Judge.

Ved Prakash Vaish, J.

1. By this petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter after referred to as Cr. P.C.) the petitioner assails the order dated 28.02.2012 passed by learned Special Judge, NDPS South & South East District, Saket Court Complex, New Delhi whereby the application filed on behalf of respondent/accused for drawing fresh sample from the case property and for sending the same to Central Revenues Control Laboratory for analysis was allowed.

2. Shorn off unnecessary details, the facts of the case are that on 28.07.2007 the respondent was found in possession of 5.021 kgs. heroine from a bag and statement of respondent under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) was recorded wherein he had admitted the recovery of the seized substance from his bag and other incriminating facts.

3. On 26.11.2011, the respondent/accused moved an application for drawing fresh sample from the alleged case property for re-testing/analyzing from Central Revenues Control Laboratory. The said application was allowed by learned Special Judge, NDPS/South & South-East District, Saket Court Complex, New Delhi vide impugned order dated 28.02.2012.

4. Aggrieved by the said order, the petitioner has preferred the present petition.

5. Learned counsel for the petitioner contended that there is no provision under NDPS Act or Cr. P.C. for sending the samples for re-testing. According to him, the accused has a right to cross-examine prosecution witnesses and to lead defence evidence at an appropriate stage.

6. Learned counsel for the petitioner has relied upon letter dated 05.02.2014 sent by Director, Central Revenues Control Laboratory to Deputy Director, Directorate of Revenue Intelligence, New Delhi wherein it was stated that the purity percentage of any illicitly produced chemical having labile acetyl group may reduce over a period of time.

7. Learned counsel for the petitioner has relied upon the judgment in Mankhanching Tombing vs. DRI, M.C. No. 549 of 2011 decided on 07.12.2011.

8. Per contra, learned counsel for the respondent urged that the petitioner is guilty of suppressing material facts. He also submitted that the trial court after considering the copies of the relevant documents i.e. Panchnama, CRCL report and testimony of investigating officer, Mr. D.P. Saxena (PW-7), allowed the application filed by the respondent for re-testing the alleged contraband article.

9. Learned counsel for the respondent has relied upon the judgment in DRI vs. Emmanuel Chilkezie, 2013 (2) JCC (Narcotic) 69, wherein re-testing was allowed in relation to the facts and circumstances of the said case.

10. I have bestowed my thoughtful consideration to the submissions made by learned counsels for both the parties and carefully considered the material on record.

11. The short question involved in the present case is whether re-testing of samples under the provisions of NDPS Act is permissible or not?

12. At this juncture, it is not out of place to mention here that there is no provision for re-testing of sample or re-sampling by chemical examiner. Section 13 of the Prevention of Food Adulteration Act, 1954 expressly confers right upon an accused to have second sampling sent to Central Food Laboratory. Section 13(2) of the Prevention of Food Adulteration Act, 1954 permits a period of 10 days and Rule 56 of Central Excise Rule, 1944 provide for filing an application for re-testing within 21 days.

13. The legislature in its wisdom has not provided any provision under NDPS Act or the rules framed there under for re-testing a second sample. However, under the Prevention of Food Adulteration Act, 1954, there is a specific provision for re-testing of sample in a superior laboratory established by the Central Government. Rule 56 of Central Excise Rule, 1944 provide for filing an application for re-testing. In the absence of any specific provision under the NDPS Act,