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TMI Blog2007 (1) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... ly heroin to someone at the gate of Zakir Hussain College, Ajmeri Gate, Delhi. The prosecution case further is that as per the direction of the Station House Officer, a raiding party was organized who reached the said spot and at about 6.00 p.m., the accused [Nihal Khan] came from the side of Basti Khwaja Mir Dard in between the petrol pump and Zakir Hussain College. He was apprehended by the raiding party near the gate of Zakir Hussain College and from his possession, 1500 grams of heroin were recovered. Two samples of 5 grams each were taken and sent to the CFSL Laboratory at Rohini for testing. As per the report from the CFSL, the sample was found to contain 31.2% of diacetylmorphine. 3. It is the petitioner's case that he has been wrongly and falsely implicated and that nothing was recovered from the petitioner and that whatever was shown to have been recovered from the petitioner was planted against him. In the course of the trial, the petitioner had summoned Shri R.S. Sharma, Director, Central Forensic Science Laboratory, Chandigarh as a defense witness in the present case and he appeared as DW-2. The said witness is said to have deposed and stated that, "there is a mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order to the following effect: Our own High Court in the matter of "Kailash Singh v/s State" reported in 37 (1998) DLT page 145 has held that NDPS Act or Rules there under do not provide for any other Laboratory for re-testing the second sample. A reading of the aforesaid extract from the decision in Kailash Singh (supra) clearly shows that the court was of the view that had the seals been intact, the accused, if he wanted to challenge the report of the CFSL with regard to the first sample, could have prayed to the trial court for taking another sample from the remaining case property for being analysed. This indicates that the court clearly contemplated the possibility of taking another sample from the remaining case property for the purposes of fresh analysis. The observation contained in the impugned order is clearly contrary to this. I had occasion to deal with this aspect in Crl Rev. P. No. 403/2006 decided on 01.09.2006, wherein it was observed as under: The decision of Kailash Singh v. State (Delhi Administration) 36 (1989) DLT 145 has been examined by me and it does not hold that the NDPS Act or Rules do not provide for any other laboratory for retesting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erruled observing that the accused could have prayed to the Court for taking another sample from the remaining case property for being analysed. A perusal of this judgment shows that the question of the right of an accused to get a sample drawn again from the case property for re-testing was neither directly raised nor considered and the observations aforesaid were only passing remarks while dealing with other arguments and as such, have to be held per incurium. 7. After observing that the decision in Kailash Singh (supra) was per incuriam, the learned single Judge in Directorate of Revenue Intelligence (supra) came to the conclusion that "an accused facing trial under the provisions of the NDPS Act had no right to ask the court to order re-testing of the case property after drawing a sample from the remaining case property inasmuch as Section 293 of the Code has made the report of the forensic science experts admissible in evidence. The only right available to an accused is to rebut or demolish the said report by way of cross-examination of expert or in the alternative, produce another expert to counter the opinion given in the report or rely upon the authoritative text books to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the question would be entirely different. Here, the question would be with regard to the case property and not with regard to the quality of the test that was done on the sample which was sent earlier. These are two different aspects and it appears that the same was not considered in Directorate of Revenue Intelligence (supra). Therefore, the said decision would be distinguishable. 10. The third difficulty that arises with the said decision is that while there is no specific provision for requiring re-testing under the NDPS Act, there is also no prohibition with regard to the same. Unless something is prohibited by the statute, the courts can always permit that thing if it would advance the cause of justice. In this light, a reference to a decision of a learned single Judge of a Kerala High Court in the case of State of Kerala v. Deepak 2001 (3) RCR (Cri) 216 would be apposite. In that case also, a similar proposition was advanced that the NDPS Act did not specifically refer to the forwarding of a second sample for analysis. The court held that even in the absence of a specific provision, a request for sending a second sample for analysis can be allowed, if the interest of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorate of Revenue Intelligence (supra) would not come in the way. 13. The prosecution had relied upon the decision of the Supreme Court in the case of Commissioner of Customs v. Punjab Stainless Steel Industries . In that case, one of the questions was with regard to rejection of the request of the respondent for re-testing the samples on the ground that there was no such provision in the Act. With regard to this, the Supreme Court observed as under: 5. Regarding the first reason, noticing the contention urged on behalf of the Revenue that three is no provision which persist retesting of sample the Tribunal states that there is also no provision under the Customs Act which prohibits retesting of the samples, and accordingly holding that the denial of opportunity to retest the sample was violative of principles of natural justice. No specific provision has been brought to our notice which permits retesting of samples, but, for the present case, without going into that aspect, we wold assume that there was no bar in granting opportunity to retest the samples. At the same time, however, it had to be born in mind that the purpose of retesting the samples was to demolish the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered by this Court. 15. In the light of the aforesaid discussion and reasoning, 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. It has to consider the facts and circumstances of the case and to see whether re-testing would be necessary to secure the ends of justice and to afford a fair trial to the accused. 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 under Section 21 of the NDPS Act could be ascertai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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