Point of Law: When an application is filed seeking retesting, it is obligatory for the Court to see whether it was filed as a delay tactics or whether it is expedient in the interest of justice to afford fair trial to the accused or that would help the prosecution to establish its case.

ORDER:

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) by the Petitioner to set aside the order dated 09.02.2021 passed in Crl.M.P.No.717 of 2020 in F.No.DRI/HZU/48E/ENQ/(INT-61)/2020, by the Metropolitan Sessions Judge, Nampally, Hyderabad,

2. Heard Sri Namavarapu Rajeshwar Rao, learned Asst. Solicitor General of India, appearing for the Petitioner, Sri V.Gopalakrishna Gokhaley, learned Counsel appearing for the 1st Respondent, Sri E.Uma Maheshwar Rao, learned counsel appearing for the 2nd Respondent and Sri Srinivas Chaturvedi, learned counsel appearing for the 3rd Respondent and perused the record.

3. FACTS OF THE CASE:

i) Respondents/Accused Nos.1 to 3 are allegedly involved in the manufacture, transfer and sale of Ephedrine and Mephedrone. It is alleged that various quantities amounting to 76 kg. of Ephedrine and 151.10 kg. of Mephedrone were seized from the premises of Respondent No.1 on 15.08.2020, 16.08.2020 and 18.08.2020. Respondent Nos.2 and 3 are alleged to aid Respondent No.1 by transporting the psychotropic substances.

ii) On 20.10.2020, an inventory of the material seized was done in the presence of the VI Additional Chief Metropolitan Magistrate, Hyderabad.

iii) Nine (9) samples, including the duplicate samples, were drawn from the seized material and Test Memos were prepared. The duplicate samples and copies of Test Memos were deposited with the custodian.

iv) The original samples along with the Test Memos were forwarded to CRCL, Chennai on 21.10.2020.

v) The test report prepared by CRCL, Chennai dated 11.11.2020 was collected by the authorized officer on 02.12.2020.

vi) The test report stated that one (1) sample tested positive for Ephedrine and each of the other eight (8) samples were in the form of off - white powder. The test report stated that the presence of Ephedrine and Mephedrone could not be verified in the said eight samples and for exact verification they may be forwarded to CFSL, Hyderabad.

vii) On 03.12.2020, the samples received form CRCL, Chennai were sent to CFSL, Hyderabad by the petitioner herein. The same were retuned stating that in light of the decision of the Apex Court in Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590 re-testing can only be done when directed by the Courts of law.

viii) On 07.12.2020, the Petitioner herein filed Crl.M.P.No.717 of 2020 before the Metropolitan Sessions Judge, Nampally, Hyderabad, seeking a direction to CFSL, Hyderabad to test the samples returned by CRCL, Chennai.

3-a) GROUNDS ON WHICH THE CRL.M.P.NO.717 OF 2020 WAS FILED:

i) The test report of CRCL, Chennai, dated 11.11.2020, is inconclusive as it could not verify the presence of Ephedrine and Mephedrone in the eight samples.

ii) The test report and the e-mail dated 29.01.2021 also state that the samples could not be tested for want of reference standard.

iii) In both the test report and the e-mail, CRCL, Chennai suggested the samples be sent to CFSL, Hyderabad for the exact identification of samples.

iv) Sending the samples to CFSL, Hyderabad would not amount to re-testing as the tests were incomplete.

v) Tenable grounds were made out to forward the samples received from CRCL, Chennai to CFSL, Hyderabad.

3-b) GROUNDS ON WHICH THE CRL.M.P.NO.717 OF 2020 WAS OPPOSED:

i) The samples were tested and no Ephedrine and Mephedrone was found. Therefore, sending the samples to CFSL, Hyderabad would amount to re-testing which is prohibited as per Thana Singh (Supra).

ii) As per Thana Singh (supra), re-testing is only allowed when an application is made within 15 days of the test report. 15 days have lapsed when the present application was filed.

iii) The tested samples were collected by the authorized officer and were directly sent to CFSL, Hyderabad without seeking leave of the Court on 03.12.2020. Therefore, the possibility of contamination cannot be ruled out.

3-c) FINDINGS OF THE TRIAL COURT IN Crl.M.P. No. 717 OF 2020:-

i) The application for re-te