The NDPS Act prohibits resampling or re-testing of samples unless exceptional circumstances are demonstrated, and the absence of specific substances in the FSL report does not constitute such circumstances.

JUDGMENT

Mr. Jasjit Singh Bedi, J.

The prayer in the present petition under Section 482 Cr.P.C. is for quashing of order dated 01.04.2016 passed by the Sessions Judge, Sirsa-cum-Special Court (NDPS Act) whereby the application moved by the Public Prosecutor for the state for sending the second sample to CFSL, Chandigarh for analyses has been rejected.

2. The brief facts of the case are that Manpreet Singh and Avtar Singh were apprehended with 130 bottles of Rexcof each containing 100 ml. They disclosed that they had purchased the same from Satpal and Pawan Kumar.

3. The samples taken at the time of seizure were sent for forensic analysis and the report filed on 10.02.2016 reads as under:-

Forensic Science Laboratory, Haryana, Madhuban, Karnal

(An ISO/IEC 170025 Accredited Laboratory)

Accredited By

National Accreditation Board for Testing & Calibration Laboratories

T-0767

To

The Dy. Superintendent of Police, Ellenabad, Sirsa

Your forwarding memo no.656-5A dated 15.9.2015 regarding One sealed parcel in connection with FIR No.391 Dated 13-09-2015 Under sections 21/22-C-61-85 NDPS Act, Police Station Rania stated to have been dispatched by you vide R.C No.556 Dated 16.09.2015 through Ct. Karan Singh-788 and received in this division on 16.09.2015.

Description articles and condition of seals.

Analytical Techniques Applied:

Colour tests, TLC and GLC techniques

Based upon the above examination the result obtained are as under:-

Results of Analysis

1. Dextromethorphan and chlorphineramine were detected in the sample

Notes:-

1. The opinion relates to the analyzed sample only.

2. After examination the remnants of the samples alongwith the original wrapper were sealed with the seal of AC General FSLH.

Pages 1 of 1

Kiran Kumar,

Senior Scientific Officer (NDPS) Forensic Scientific Laboratory Haryana, Madhuban, (Karnal)

4. An application was moved by the Public Prosecutor for sending the second sample to CFSL, Chandigarh alleging that in the report of the FSL, Madhuban, presence of Codeine in the sample of Rexcof had not been specifically mentioned and the report was false. The second sample was lying in the Malkhana, Sirsa and the same be sent to CFSL, Chandigarh so that the presence of Codeine could be known specifically in the sample.

5. The accused file a reply and opposed the application on the grounds that there was no provision under the NDPS Act for sending the second sample to the FSL or CFSL for testing. It was pleaded that no Codeine had been detected in the sample which was drawn at the time of the alleged recovery and had been sent to FSL, Madhuban, so the prosecution could not be allowed to fill up the lacuna in its case.

6. Based on the rival contentions of both the parties, the application for sending the second sample to CFSL, Chandigarh was dismissed vide order dated 01.04.2016 passed by the Sessions Judge, Sirsa.

7. It is this order which is under challenge in the present petition.

8. The learned counsel for the petitioner-State contends that the whole intent for preparing two samples was that in case of ambiguity in one sample, the second sample could be used and sent to FSL for chemical examination to get a second opinion. The label affixed on the recovered bottles of "Rexcof' depicted the content therein to be Codeine Phosphate. However, the FSL report was totally silent about the presence of Codeine in the sample and therefore, the Public Prosecutor was right in moving the application for retesting and the Trial C