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TMI Blog2019 (9) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and in their presence, the boxes were opened. It is alleged that the First Box weighed 3.50 Kg, X-Ray was conducted and some sort of concealments were found, therefore, the box was opened wherein 204 Pieces of cosmetics including lipsticks were found. Thereafter, the back side of the box was opened wherein a small packet wrapped in carbon paper was found. However, when the entire packet was opened "Brown Colored Powdery Substance" was found in it. All packets contained the same powder, accordingly, small quantity of the same was tested in Ion Scan. Total weight of the Powder was 451 gms and 3 representative samples of 5 gms were drawn and kept in separate envelopes and were sealed. Balance 436 gms was kept in a separate polythene pouch and sealed with customs seal. One sealed sample was handed over to DHL as custodian and two sample parcels were kept by customs. The Second Box was also opened, inside which Brown Colored Powdery Substance was found, net weight of which was 874 gms. Out of the total 874 gms of substance, 3 samples of 5 gms each were made. On 02.12.2010, the Accused/Revisionist No.2 made a call to DHL Office Dehradun and the official of DHL informed that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the documents were not bearing intact specimen and seals of CRCL, as well as an authorisation with the documents was not enclosed. Consequently, on 14.03.2011, two fresh samples of 4.5 gms and 5.6 gms respectively, were sent to check the presence of Opium / THC, Cocaine, Morphine, Catamine or any other narcotic drugs, which was followed by a reminder dated 15.04.2011. He further submitted that as per the report dated 11.05.2011, presence of Heroine, Opium / THC, Cocaine, Morphine, Calamine could not be ascertained and the packages with gross weight of 2.6 gms and 3 gms each were returned. However, on 23.05.2011, the Ld. Trial Court passed an order on the Application moved on behalf of the prosecution seeking direction for retesting of the sample at CFSL Hyderabad wherein the Hon'ble Court has allowed the same. Pursuant to the order dated 23.05.2011, fresh samples of 4.33 gms and 5.36 gms were sent to CFSL Hyderabad for analysis, which was highly objectionable, for the reason that the prosecution has no authority to procure fresh samples from the case properties. The CFSL Hyderabad vide its report dated 06.06.2011, observed that "No Narcotics except Caffeine" was found in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the present matter. The prosecution after completion of investigation filed the charge sheet and against the order dated 02.09.2011, preferred a petition U/s 482 Cr.P.C. vide Crl.M.C.No. 325/2012 for quashing of the order dated 02.09.2011 granting bail to the petitioners. However, the said application was dismissed by this Court vide order dated 20.07.2015. The present petition is filed on the ground that the first sample sent by the prosecution had failed vide its report dated 28.01.2011. Thereafter, the prosecution with permission had, sent second sample, however vide report dated 11.05.2011, the CFL reported that there is no substance in the sample, thus, the second sample also failed. Again the prosecution sought permission from the court for a third test to be conducted and the same was granted and in the test report of the third sample, the only substance found was caffeine. Thereafter, they again sought permission from the court and in the fourth report, the two substances found were caffeine and phenobarbitone. Learned counsel submits that sending a sample for re-examination is contrary to the Act as there is no provision therein. However, if the court found substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the entire process and bonafide case of the prosecution and that such discrepancy and illegality would ultimately result into the acquittal of the accused and therefore, there is no purpose of charging the accused and exposing them to the further harassment of trial which they have been facing since 03.12.2010. Since the first three samples totally failed, therefore, there was no occasion for sending the fourth sample for retesting. It is not out of place to mention here that a third sample was tested by CFSL Hyderabad, whereby it was stated that there is no substance except caffeine in it. The same laboratory in the fourth report stated that there are two substances i.e., caffeine and phenobarbitone. Thus, it creates doubt on the prosecution whether the samples were sent of the same substance. However, without pointing out on the attitude of the prosecution authority, I am of the opinion that even re-testing is not permissible until and unless it is allowed by a reasoned order. In case of Thana Singh v. Central Bureau of Narcotics (2013) 2 SCC 590, the Hon'ble Supreme Court has held that: "27.Therefore, keeping in mind the array of factors discussed above, we direct that, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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