TMI Blog2007 (1) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... essary for ascertaining the exact content so that the category of the offence u/s 21 of the NDPS Act could be ascertained. Another situation where re-testing could be permitted is as given in Kailash Singh's case [ 1988 (12) TMI 344 - DELHI HIGH COURT] where doubts are created with regard to the tampering with the case property and or samples. In such a situation where legitimate doubts arise, the court may permit re-testing. A third situation may be where in the course of the trial it is indicated that there is a possibility that the sample sent for testing did not match the case property. This can be discerned sometimes by marked differences in colour or other appearance to the naked eye. In all such situations, it would be permissible for the court, if it so feels, to direct re-testing. These instances are merely illustrative. There may be other situations where it would be necessary for the court to direct a fresh sample being taken from the case property and being sent for testing if it feels that it would secure the ends of justice and help the court in arriving at the truth. Thus, the impugned orders cannot be sustained. The same are set aside. The matters are rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is said to have deposed and stated that, there is a minor difference in colour of mark 'B' and mark 'C' . According to the petitioner, mark 'C' was the alleged recovery from the petitioner and mark 'B' was the sample taken from the said recovery. The differences in colour have created a doubt about the alleged recovery of heroin. According to the petitioner, the sample sent for CFSL testing contained a higher percentage of diacetylmorphine, whereas the alleged recovered substance had a much lower percentage of heroin, if at all. This has, according to the petitioner, created a doubt about the recovery as well as about the tampering with the alleged recovered heroin. 4. In this context, an application dated 06.07.2006 had been moved on behalf of the petitioner for sending the sample for testing after taking the same from the remaining case property, i.e., the parcel marked 'C'. By virtue of the impugned order dated 07.07.2006, the learned Special Judge (NDPS Act, Delhi) dismissed the application after considering the decisions of this Court in the matter of Kailash Singh v. State 37 (1998) DLT 145 and Directorate of Revenue Intelligence v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or Rules do not provide for any other laboratory for retesting the second sample. There is no such finding in the said decision of the Delhi High Court. I wonder as to how the learned Special Judge has come to the conclusion as indicated in paragraph 5 of the impugned order. On the contrary, the decision in Kailash Singh (supra) is one where the accused was acquitted because of the alleged tampering having been done in the Malkhana with regard to the case property. It was also noted that the accused in that case if he wanted to challenge the report of the CFSL with regard to the sample, should have prayed to the trial court for taking another sample for analysis from the remaining case property. This is exactly what the present petitioner is requesting and I see nothing in the judgment in Kailash Singh (supra) which runs contrary to the prayer being made by the present petitioner. The impugned order has been passed on a mis-appreciation of the ratio of the said decision and is liable to be set aside. This makes it clear that the decision in Kailash Singh (supra) does not, in any way, prohibit the taking of a fresh sample for being sent for testing. On the contrary, it contempl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion given in the report or rely upon the authoritative text books to challenge the opinion given by the expert. The learned Judge then compared the provisions of the Prevention of Food Adulteration Act with those of the NDPS Act and held that while under the former Act, there was provision for re-testing, in the NDPS Act, no such right or provisions had been introduced. The learned Judge then raised the fear that in case the accused is permitted to get the sample of contraband re-tested, a floodgate for manipulations as well as tampering with the case properties may be opened and multiple malpractices may be introduced to avoid stringent punishments under the Act. It is on the basis of these observations that the learned Single Judge set aside the order of the Special Judge permitting the sending of a second sample of the contraband in question to another laboratory for Chemical analysis. 8. There are various difficulties with regard to the decision in Directorate of Revenue Intelligence (supra). The first difficulty, as rightly pointed out by the learned Counsel for the petitioner, is that it is wrongly recorded in paragraph 5 thereof that in Kailash Singh (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for sending a second sample for analysis can be allowed, if the interest of justice so requires. 11. The fourth and most formidable difficulty with the decision in Directorate of Revenue Intelligence (supra) is that the notice of the court was not drawn to a prior decision of a learned single Judge of this Court in the case of Masoom Ali @ Ashu v. State [Crl Rev. P. 195/2004 delivered on 07.04.2004]. In Masoom Ali (supra), the court was considering a revision petition directed against the order dated 21.02.2004 passed by a learned Additional Sessions Judge whereby the application of the petitioner therein to have the sample re-examined by the CFSL to determine the percentage of the diacetylmorphine had been dismissed. The court considered the very question of having the substance re-tested. The question there, of course, was with regard to the percentage content of diacetylmorphine in the recovered substance. Apparently, the first test that was conducted did not reveal the content of diacetylmorphine by percentage. The court came to the conclusion that where in a large quantity of powder, the percentage of narcotic substance is very small, the proportionate reduction in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had to be born in mind that the purpose of retesting the samples was to demolish the report of the Chemical Examiner on consideration whereof the charge of mis-statement and suppression regarding quality and grade of the input had been established against the respondent. In this regard, the Tribunal failed to notice the main aspect of the case that option was granted to the respondent to cross-examine the Chemical Examiner who after taking the samples had given the report. The respondent had, thus, ample opportunity to demolish his report. The respondent did not avail that appertained. It stands establish that the adjudicating officer had given an offer to the respondent to cross-examine the Chemical Examiner. The respondent did not dispute that such an offer was made. The only objection of the respondent was that such an offer was made suo moto and the respondent had not asked for it. The objection was frivolous and misconceived. Therefore, we fail to understand, how the respondent having failed to avail the opportunity to cross-examine the Chemical Examiner could urge that there was violation of principles of natural justice by non-grant of request of the respondent for retestin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content so that the category of the offence under Section 21 of the NDPS Act could be ascertained. Another situation where re-testing could be permitted is as given in Kailash Singh's case (supra) where doubts are created with regard to the tampering with the case property and or samples. In such a situation where legitimate doubts arise, the court may permit re-testing. A third situation may be where in the course of the trial it is indicated that there is a possibility that the sample sent for testing did not match the case property. This can be discerned sometimes by marked differences in colour or other appearance to the naked eye. In all such situations, it would be permissible for the court, if it so feels, to direct re-testing. These instances are merely illustrative. There may be other situations where it would be necessary for the court to direct a fresh sample being taken from the case property and being sent for testing if it feels that it would secure the ends of justice and help the court in arriving at the truth. 16. In these circumstances, the impugned orders cannot be sustained. The same are set aside. The matters are remanded to the respective courts for con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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