Resampling of contraband under exceptional circumstances is permitted when the original sample is lost, despite challenges regarding timelines for requests.

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

AJAY GOSWAMI

2024.01.31 17:37

I attest to the accuracy and

integrity of this document

2024:PHHC:012622

CRR-47-2015

2

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

AJAY GOSWAMI

2024.01.31 17:37

I attest to the accuracy and

integrity of this document

2024:PHHC:012622

CRR-47-2015

3

(Annexure P-2). Further, the learned trial Court has recorded no reasons to justify

the criterion of exceptional circumstances, necessary for resampling as lai