Re-testing or re-sampling under the NDPS Act is prohibited except in exceptional circumstances, and requests must be made within 15 days of receiving the test report.

ORDER :

1. The instant Criminal Miscellaneous Petition under Section 482 Cr.P.C. (Section 528 B.N.S.S. 2023) has been preferred by the petitioners for quashing of the FIR No.56/2024 registered at Police Station Jhab, District Sanchore for offence punishable under Sections 8/22 & 29 of the NDPS Act.

2. Briefly stated the facts of the case are that the police, upon receiving information, conducted a search at the house of petitioner No.1, Sadaram. During the search, two individuals-Budharam alias Bhutaram (petitioner No.3) and Bhanwarlal (petitioner No.4)—attempted to flee but were apprehended. Upon searching a shed inside the premises, the police allegedly recovered 3.376 kg of the illegal drug Mephedrone (MD), along with an electronic weighing scale, plastic sealing machine, and a sum of Rs. 1,50,400/-, purportedly earned from the sale of drugs. The seizure of the suspect material was made and samples were taken for sending the same to the FSL for chemical examination.

2.1 As a matter of fact, after chemical examination, a report has been received from the FSL to the effect that the sent sample do not contain presence of any psychotropic substance, rather it was a neutral substance. The factual report submitted by learned Public Prosecutor along with a copy of the FSL report is shown to this Court, as per which, the samples were examined but no contraband was found.

2.2 In a subsequent development, the preserved control samples C1, C2 and C3 were sent to eliminate the doubt vide letter dated 09-01-2025. Surprisingly, the second sample which was the control sample and prepared at the time of making inventory was not approved by the FSL. The Final Report dated 26-03-2025 along with a copy of report of FSL dated 25-02-2025 has been supplied to this Court as per which presence of Methamphetamine (MDMA) or any opium alkaloid or any narcotic drug could not have deducted in the sample packed in each of the packets marked as C1, C2 and C3.

3. As on date, it can be concurrently stated that the case was registered on the suspicion of possession of contraband. However, this suspicion has not been confirmed by the report of the chemical examiner. As such, there remains no case against any of the accused-petitioners. Though as on date there is no such relevance in this case since second sample report has been received and the issue may no longer relevant, it is being mentioned, purely as a matter of caution that any request for retesting or re-sampling cannot be entertained under the NDPS Act as a matter of course rather such a request may only be made in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge, an application to this effect in such cases can be made within a period of 15 days of the receipt of the test report only then can an order to that effect be passed. No application for retesting or re-sampling can be entertained thereafter. In the absence of any compelling circumstances, any form of re-sampling and retesting is prohibited under the NDPS Act. So, let it be made clear that no agency can send a sample for retesting or undertake re-sampling, outside the scope of the provisions and rules framed under the NDPS Act.

4. In the leading case Thana Singh Vs. CBN,(2013) 2 SCC 590 Hon’ble the Supreme Court had an occasion to dealt with above issue. The relevant paragraphs of the said judgment are being reproduced herein below:-

“E. Re-testing Provisions

23. The NDPS Act itself does not permit re-sampling or re- testing of samples. Yet, there has been a trend to the contrary; NDPS courts have been consistently obliging to applications for re-testing and re- sampling. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. NDPS courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [See: State of Kerala v. Deepak. P. Shah, MANU/KE/0687/2001 : 2001 Cri LJ 2690; Nihal Khan v. The State (G