Harpreet Singh Brar, J. (Oral)

1. The present revision petition is preferred against the impugned order dated 15.12.2014 passed by learned Special Court, S.B.S. Nagar, whereby the application dated 25.11.2014 for re-sampling the second sample by Chemical Examiner, Kharar has been allowed in FIR No. 93 dated 09.08.2013 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’) at Police Station Rahon, S.B.S Nagar.

2. Briefly, the facts are that on 09.08.2013, the police party was patrolling and had established a checkpoint at Adda Bharta when a white coloured Maruti car, driven by the petitioner, came to the spot and was apprehended on suspicion. The Investigating Officer- A.S.I Nand Lal, found two plastic bags lying on the back seat of the car and suspected them to be carrying contraband. After receiving consent from the petitioner, the police party proceeded to search the said plastic bags and recovered poppy husk from the same. The two bags were weighed at 28 kg each and two samples of 250 g each were separated from each of the bags. The four samples hence separated were sealed by the Investigating 1 of 5 ::: Downloaded on - 11-08-2024 16:58:18 :::

Office with his seal ‘NL.’ Thereafter, final report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.P.C.’) was filed on 13.01.2014, along with the Chemical Examination Report by Chemical Examiner, Kharar dated 11.01.2014 (Annexure P-2), following which the learned trial Court framed charges against the petitioner.

3. Vide Dispatch No. 2304 dated 13.10.2014 (Annexure P-3), office of Chemical Examiner, Kharar conveyed to the learned trial Court that the sample in the case titled ‘ State v. Santokh Ram alias Sukha’ has been misplaced during a vigilance inquiry and requested that another sample be deposited so a report could be issued. The prosecution filed an application dated 28.10.2014 under Section 311 and 91 of the Cr.P.C.(Annexure P-6) calling for a report from the office of Chemical Examiner, Kharar. Thereafter, the prosecution filed another application dated 10.11.2014 requesting for a search to be conducted to recover the lost sample so the report can be generated for the sample taken from the second bag and can be attached with the final report under Section 173(8) of the Cr.P.C.

4. During the pendency of the application dated 28.10.2014, the prosecution filed another application dated 25.11.2014 (Annexure P-7) with the same request to send another sample from the second bag for re-examination to the Chemical Examiner, which was allowed by the learned trial Court vide impugned order dated 15.12.2014.

5. Learned counsel for the petitioner assails the impugned order on the ground that resampling of the contraband can only be allowed within fifteen days of receipt of report from the Chemical Examiner only as has been held by the Hon’ble Supreme Court in Thana Singh v. Central Bureau of Narcotics (2013) 2 SCC 603 . The prosecution has failed to make any efforts towards calling the report from Chemical Examiner, with respect to the lost sample, for one year after commencing of the trial, even after receiving the report dated 11.01.2014 2 of 5 ::: Downloaded on - 11-08-2024 16:58:19 :::

(Annexure P-2). Further, the learned trial Court has recorded no reasons to justify the criterion of exceptional circumstances, necessary for resampling as laid down by this Court in Karan Kakkar v. State of U.T. Chandigarh 2014(4) R.C.R.

(Criminal) 159 , and as such, the impugned order deserves to be set aside.

6. Per contra, learned State counsel opposes the prayer and submits that the petitioner was found to be in conscious possession of 56 kg of poppy husk, which falls under the ambit of commercial quantity and resampling of the second sample is necessary for just and fair adjudication of the case at hand.

7. Having heard the learned counsel for the