Point of Law: NDPS Act itself does not permit re-sampling or re-testing of sample.

JUDGMENT :

Jyotsna Rewal Dua, J.

A sample of cannabis drawn by prosecution from the recovered bulk quantity was sent for scientific examination on 25.02.2022. The analysis report came on 28.03.2022. Prosecution at this stage felt the need to have the entire recovered contraband tested. Application moved for this purpose on 05.07.2022 was dismissed by the learned trial Court on 21.07.2022, hence this revision petition.

2. Prosecution case is that :-

2(i) 1.8 Kg. of cannabis was seized from respondent-accused on 23.02.2022.

(ii) On 24.02.2022, the recovered contraband was forwarded to Judicial Magistrate in terms of Section 52A of the Narcotic Drugs and Psychotropic Substance Act, 1985 (in short the Act) for certification of inventory. Two samples each of 26 Gms.were drawn from bulk cannabis. Consequently, three parcels were made i.e. two sample parcels of 26 Gms.each and remaining third bulk parcel of 1.748 Kg.

2(iii) On 25.02.2022, one of the sample parcels (weighing 26 Gms.) was sent for chemical analysis to State Forensic Science Laboratory (SFSL), Junga. Its report was received on 28.03.2022. 2(iv) While scrutinizing the case, the Public Prosecutor raised the objection that entire cannabis recovered from the accused had to be analysed chemically, whereafter the remaining cannabis i.e. bulk parcel (1.748 kg. Gms) and the other sample parcel (26 Gms.) were sent for chemical analysis to SFSL, Junga on 09.06.2022. The scientific expert on 10.06.2022 refused to analyse these parcels without order of the Court. Hence, the prosecution on 05.07.2022 moved an application for chemical analysis of the remaining cannabis contained in two parcels i.e. bulk parcel, weighing 1.748 Gms. and the sample parcel weighing 26 Gms. This application was dismissed by the learned Special Judge on 21.07.2022, hence the prosecution instituted this revision petition on 01.11.2022.

3. Notice of this petition was issued to the respondent-accused on 06.12.2022 for his appearance on 06.03.2023. He was duly served, but did not remain present in the Court on 06.03.2023. Therefore, bailable warrants were issued against him returnable for 26.04.2023. On the next date, i.e. 26.04.2023, cognizance was taken of a certificate dated 21.04.2023 issued by the Superintendent (Jail), District-cum-Open Air Jail, Chamba certifying that the respondent-accused was admitted in the said jail on 26.02.2022 in FIR No. 1 of 2022, dated 23.02.2022 registered under Section 20 of the Act and that he was presently confined in the said jail. In view of the above, Mr. Karan Sharma, learned Advocate, was appointed as Amicus Curiae vide order dated 01.05.2023.

4. I have heard learned Amicus Curiae and the learned Additional Advocate General for the petitioner.

4(i) Following question is involved in the case :- Whether any request or application preferred by the prosecution for re-testing and re-examination of the remaining quantity of recovered contraband i.e. cannabis weighing 1.748 Kg. + 0.026 Kg. = 1.774 Kg. can be entertained under the Act, as a matter of course ?

4(ii) Hon’ble apex Court in (2013) 2 SCC 590 Thana Singh Vs. Central Bureau of Narcotics, held that NDPS Act itself does not permit re-sampling or re-testing of sample. Re-testing and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Re-sampling may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. The apex Court further observed that a reverence must also be given to the wisdom of the legislature when it expressly omitted out a provision, which otherwise appears as a standard one in other legislations viz. the Customs Act, the Drugs and Cosmetics Act etc. The legislature unlike the NDPS Act, enacted Section 25(4) of the Drugs and Cosmetics Act 1940, Section 13(2) of the Prevention of Food Adulterat