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2013 Supreme(MP) 356
MADHYA PRADESH HIGH COURT (GWALIOR BENCH)
BRIJ KISHORE DUBE, J.
Dinesh Kumar Yadav
vs.
Union of India
Misc. Cri. Case No. 4835 of 2013
Decided On: 03/07/2013
Re-testing of drug samples may be permitted in extremely exceptional circumstances with cogent reasons to be recorded by the presiding judge, as per the Supreme Court's directive in Thana Singh v. Central Bureau of Narcotics.
Headnote:
Section 482 - Criminal Procedure - The court allowed the application for re-testing of drug samples based on the provisions of the NDPS Act and the Supreme Court's directive in Thana Singh v. Central Bureau of Narcotics, emphasizing that re-testing may be permitted in extremely exceptional circumstances with cogent reasons to be recorded by the presiding judge.
Fact of the Case:
The petitioner was accused of possessing heroin, which was later found to be opium upon chemical examination. The respondent applied for re-testing of the samples, which was opposed by the petitioner.
Finding of the Court:
The court found that the application for re-testing was made within the prescribed period and with cogent reasons, in line with the Supreme Court's directive in Thana Singh v. Central Bureau of Narcotics. Therefore, the court dismissed the petition, stating that there were no grounds to interfere with the impugned order.
Issues: The main issue was whether the application for re-testing of drug samples should be allowed under the NDPS Act.
Ratio Decidendi: The court relied on the Supreme Court's directive in Thana Singh v. Central Bureau of Narcotics, which emphasized that re-testing may be permitted in extremely exceptional circumstances with cogent reasons to be recorded by the presiding judge.
Final Decision: The petition was dismissed as it was devoid of merit and substance.
This petition under Section 482 of the Code of the Criminal Procedure, 1973 (For short, the Code) is preferred by the petitioner herein/accused for quashing the impugned order dated 07/05/13 passed by the Special Judge (NDPS Act), Vidisha in Special Case No.02/2013 whereby allowed the application to send the samples for re-testing them to the Government FSL, Hyderabad.
2. The short facts of the case are that on 07/02/2013 on the basis of information received through an informer, 1.210 kgs heroine contained in two packets was seized on platform No.1 of the Vidisha railway station from the illegal possession of the petitioner. Two samples P1S1, P1S2 and P2S1 & P2S2 were prepared from each packet. On 11/02/13, two samples P1S1 and P2S1 were sent to the Government and Alkaloid Works, Neemuch (M.P.) for chemical examination and the Chemical Examiner submitted a report according to which each of the two samples is found by qualitative and quantitative analysis to be “OPIUM” within the meaning of NDPS Act, 1985.
3. After completing the investigation, challan has been filed against the petitioner before the Special Judge (NDPS Act), Vidisha on 10/04/2013 and on the same date, an application was submitted by the respondent herein before the Court below praying that P1S2 and P2S2 be sent to the FSL, Hyderabad for retesting the samples. The application was opposed by the petitioner.
4. Learned Court below by the impugned order accepted the application and directed that the samples P1S2 and P2S2 be sent to FSL, Hyderabad for retesting. The relevant paragraphs of the order reads as under:
(Vernacular matter omitted...... Ed.).
Being aggrieved thereof, this petition is preferred by the petitioner.
4. Shri N.P. Dwivedi, learned counsel for the petitioner submits that there is no provision under the NDPS Act for re-testing of the samples. The Apex Court in the case of Thana Singh v. Central Bureau of Narcotics, Criminal Appeal No.1640/2010 decided on 23/01/2013 : (Reported in 2013 Cri LJ 1262) held that request for re-testing of the samples shall not be entertained under the NDPS Act as a matter of course, however, it would be permitted in extremely exceptional circumstances. According to him, the learned Court below allowed the application of the respondent herein on superficial grounds as there is no existence of the compelling circumstances on which the application may be allowed. The prosecution cannot be permitted to fillup the lacunae of its case by filing an application for re-testing of the samples because the possibility of tampering of the second sample cannot be ruled out as it was in the possession of the respondent herein. On these grounds, learned counsel prays for setting aside the impugned order passed by the Court below. In support of his contention, he has placed reliance in the cases of State of Kerala v. Deepak P. Shah, 2001 Cr. L.J. 2690 of Kerala High Court and Nihal Khan v. State (Govt. of NCT of Delhi), 2007 Cr. L.J. 2074 of Delhi High Court.
5. In response, learned Assistant Solicitor General argued in support of the impugned order and submits that the application for re-testing of the samples was filed within 15 days and the learned Court below by recording the cogent reasons and in the light of the law laid down by the Apex Court in the case of Thana Singh, (2013 Cri LJ 1262) (supra) passed the impugned order and, therefore, the petition may be dismissed.
6. I have considered the rival contentions of the learned counsel for the parties and perused the record.
7. The scope of re-testing or resampling under the NDPS Act was considered by the Apex Court in the case of Thana Singh, (2013 Cri LJ 1262) (supra) and by considering the judgments of High Courts in the cases of Deepak P. Shah, (2001 Cri LJ 2690) (supra) and Nihal Khan, (2007 Cri LJ 2074) (supra) held as under:
“25. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the concerned labor
