The main legal point established in the judgment is the requirement for exceptional circumstances to send a second sample for analysis under the NDPS Act, along with the necessity of strict compliance with statutory provisions and the maintenance of sample integrity.

JUDGMENT :

Arvind Singh Sangwan, J.

1. Prayer in this revision is for setting aside the order dated 26.11.2018, vide which the trial Court has framed charge against petitioner Chander Parkash @ Chander, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').

2. Brief facts of the case are that the petitioner, along with one Jaswinder Singh @ Bhinder, was nominated as an accused in FIR No. 40 dated 03.06.2012, registered under Section 21 of the NDPS Act at Police Station Sadar Nabha, District Patiala.

3. During the course of investigation, the sample parcel, prepared by the Investigating Officer, was sent to Chemical Examiner, Kharar and on 18.07.2012, a report was sent by the Chemical Examiner, Kharar (Annexure P-2), in which the contents of the sample were found to be “Paracetamol”. Thereafter, the prosecution moved an application (Annexure P-3) before the Special Judge to get the second sample analyzed from any other laboratory. As per application dated 11.01.2013 (Annexure P-3), it is stated that the Investigating Officer has prepared two samples of 10 grams each in separate parcels, which were sealed by the seal of Investigating Officer 'GS' and later on, it was verified by the SHO of the police station by putting his seal as 'PS'. It is further stated that on 06.04.2012, ASI Gurdarshan Singh took both the accused persons along with sample parcels from the Malkhana of the police station and produced them before the Illaqua Magistrate, who verified the same and on the direction, he deposited the sample parcels with Head Munshi of the Malkhana. Thereafter, on 05.06.2012, as per order of the Illaqua Magistrate, both the sample parcels and intoxicant powder 10/10 grams and residue parcels of intoxicant powder of 480/480 grams were deposited in the Judicial Malkhana attached to the Court of Chief Judicial Magistrate, Patiala. Thereafter, one of the sample parcels, on the same date, was sent through HC Jagdev Singh for depositing with the Chemical Examiner, Kharar. It is further stated in the application that in the disclosure of the accused, recorded on 03.06.2012 and 05.06.2012, it was stated that by mixing the powder of Parvon & Lemotil, intoxicant powder was converted into tablets by making small packets.

4. It is worth noticing that on 30.07.2012, the report dated 18.07.2012 was received from the Chemical Examiner, Kharar, in which sample was reported to be containing “Paracetamol”.

5. The prosecution filed an application dated 11.01.2013 with a prayer that since the report sent by Chemical Examiner, Kharar, appears to be suspicious, therefore, the trial Court may refer the second sample for analysis. The petitioner/accused contested this application before the trial Court and the trial Court allowed the application by passing the following order:

“After hearing the learned Addl. PP for the State as well as learned defence counsel and to get the answer to the question that whether the second sample can be sent for re-analysis on the request of investigating agency, I relied upon 2013 (4) RCR (Criminal) 524 in which in para no. 22 Hon'ble Punjab & Haryana High Court observed that:

“[22] Even though the Narcotic Drugs And Paychotropic Substances Act does not have any provision pertaining to the second test of the sample, at the instance of the prosecution, there may arise an occasion which would warrant recourse to second test. It may be a case where the sample contraband sent for examination was lost in transit or could not be traced before ever the test was embarked upon by the Laboratory. The sample would have been subjected to damage during transit or at the Laboratory. There may be a case where the seal found affixed on the sample does not match with the sample seal sent along therewith for comparison by the Chemical Examiner before ever opening the sample for test. Though the Narcotic Drugs and Psychotropic Substances Act does not recognize the right of the prosecution to go in for s