In CR No. 688 of 2022 -HP HC- NDPS Act: Compelling circumstances and timely application would allow re-sampling of contraband, says Himachal Pradesh High Court
Justice Jyotsna Rewal Dua [22-05-2023]

Read Order: State of Himachal Pradesh v Madan Lal

Simran Singh

New Delhi, May 24, 2023: In a Criminal Revision Petition, the Himachal Pradesh High Court upheld the decision of the Trial Court which had dismissed the application moved by the prosecution for the purpose of reexamination of the bulk contraband in view of law laid down in Thana Singh v Central Bureau of Narcotics stating that re-testing or re-sampling could not have been allowed since the Trial Court was justified in dismissing the application as there were no compelling circumstances to permit the same.

“We are now in May, 2023. Almost 15 months have passed since the date of receipt of chemical analysis report from SFSL, Junga. Possibility of manipulation, tampering with the case property, improper storage of natural product, infection with bacterial and fungal micro-organisms which may cause change in chemical composition of organic material by de-composition etc. cannot be ruled out.”

In the matter at hand, the accused was admitted in jail on 26-02-2022 by way of an FIR dated 23-02-2022 registered under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (‘NDPS’). A sample of 26 gm each of cannabis was drawn by prosecution from the recovered bulk quantity of 1.8kg which was sent for scientific chemical examination on 25-02-2022 to State Forensic Science Laboratory, Junga (‘SFSL'). After the analysis report dated  28-03-2022, prosecution felt the need to have the entire recovered contraband tested. Accordingly, an application was moved for this purpose on 05-07-2022, since the scientific expert had refused to analyse the parcel without the order of the Court, which was subsequently dismissed by the Trial Court on 21-07-2022, hence this revision petition.

Issue for consideration before the Court was that whether any request or application preferred by the prosecution for re-testing and re-examination of the remaining quantity of recovered contraband i.e. cannabis could be entertained under NDPS Act.

The Court relied upon the decision of the Supreme Court in Thana Singh v Central Bureau of Narcotics which had held that NDPS Act itself does not permit re-sampling or re-testing of sample. Re-testing and re-sampling was rampant at every stage of the Trial which was contrary to other legislations which define a specific time-frame within which the right may be available.  “Re-sampling may be an important right of an accused, the haphazard manner in which the right was imported from other legislations without its accompanying restrictions, however, was impermissible.”  It was further observed that a reverence must also be given to the wisdom of the legislature when it expressly omitted out a provision, which otherwise appeared as a standard one in other legislations viz. the Customs Act,1962,[1]   the Drugs and Cosmetics Act,1940 and alike. The legislature unlike the NDPS Act, enacted Section 25(4) of the Drugs and Cosmetics Act 1940 etc permitting a time period of 30 days for filing an application for re-testing.

The Bench while referring to Section 52A of NDPS, held that after completion of necessary test by the laboratories concerned, result of the same must be furnished to all the parties. Any request for re-testing/re-sampling was not to be entertained under NDPS however, it maybe permitted in extremely exceptional circumstances for cogent reasons. An application in such rare cases must be made within a period of 15 days of the receipt of test report and no application for re-testing/re-sampling was to be entertained thereafter. However, in the present case the application for sending entire remaining bulk of contraband for examination of cannabis was moved beyond the period of 15 days i.e. four months after the receipt of chemical analysis report submitted by SFSL, Junga.

The Bench stated that the argument raised by the prosecution, that the decision in Thana Singh’s case (supra) would not be applicable to the present case as prayer in the application was not for re-testing or re-sampling of the contraband but for scientific examination of remaining bulk which was not sent for testing before, was misconceived. It was held that the re-testing or re-sampling was not just confined to the sample already tested. The phrase within its ambit included tests of remaining sample which was not previously tested however, in the absence of compelling circumstances, all kinds of re-sampling were prohibited.

The Court stated that in view of law laid down in Thana Singh’s case (supra), prayer for re-testing/re-sampling could not have been allowed since the Trial Court was justified in dismissing the application as there were no compelling circumstances to permit re-testing/re-sampling. The Bench while upholding the decision of the Trial Court stated that the prayer of the petitioner for re-testing and re-sampling was not in conformity with the settled legal position and provisions of NDPS. Thus, the revision petition was accordingly dismissed.

I don’t think the link of Customs Act is accessible and opening