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2007 (1) TMI 580 - HC - CustomsNarcotics laboratories - Re-testing provisions - 1500 grams of heroin were recovered - Two samples of 5 grams each were taken and sent to the CFSL Laboratory - contain 31.2% of diacetylmorphine - HELD THAT:- It is clear that there is no bar for an accused under the NDPS Act to move an application for re-testing of samples. There is also no bar on the court allowing such an application. At the same time, it does not mean that every such application moved by any accused under the NDPS Act ought to automatically result in the court allowing the same. The court has the power to allow or not to allow such an application. If the court, upon considering the totality of circumstances, comes to the conclusion that re-testing would be necessary, then it ought to allow such an application. An illustration of a case where re-testing would be necessary is one given by the decision in Masoom Ali (supra) where the first test did not disclose the percentage content of diacetylmorphine and the second test became necessary 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 remanded to the respective courts for consideration of the applications afresh. After hearing the counsel for the parties, the respective courts shall pass the orders in accordance with law and the parameters indicated above.
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