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Madhya Pradesh High Court · body

2013 DIGILAW 746 (MP)

Dinesh Kumar Yadav v. Union of India

2013-07-03

BRIJ KISHORE DUBE

body2013
ORDER 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. 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 laboratories, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. There may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. There may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of retesting/re-sampling is strictly prohibited under the NDPS Act.” 8. From a perusal of the record and the impugned order, it is apparent that the application for re-testing of the samples has been made within the prescribed period fixed by the Hon'ble Apex Court and cogent reasons have been assigned for allowing the application of the respondent herein in the impugned order by the Court below. 9. For the foregoing reasons and peculiar facts and circumstances of the case, this Court in exercise of the powers under Section 482 of the Code does not find any ground to interfere in the impugned order. This petition being devoid of merit and substance deserves to be and hereby dismissed. Certified copy as per rules. Petition dismissed.