State Of Maharashtra, Thr. P.I. ... vs Pramod S/O Rambhauji Rawle And ...
2017 Latest Caselaw 3535 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                    CRIMINAL WRIT PETITION NO.697 OF 2016.


   PETITIONER:                  State of Maharashtra,
                                through Public Inspector, Narcotic Cell,
                                Crime Branch, Nagpur City.

                                            : VERSUS :

   RESPONDENTS:  1.   Pramod s/o Rgoogleambhauji Rawle,
                      aged about 33 years, R/o Plot No.13,
                      Pawanshakti Nagar, Nagpur.

                              2.  Tushar s/o Madhukarrao Hande,
                                  aged about 22 years, Occu: R/o Plot
                                  No.65 Shrawan Nagar, Nagpur.

                              3. Mahendra s/o Tulsiramji Ladukar,
                                 aged about 23 years, Occu: R/o
                                 Ranjendra Nagar Square, Mule Bapuji 
                                 Line, Nagpur. 

   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.S.D.Shirpurkar, Addl.Public Prosecutor for the State.
   None for the respondents.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                       CORAM:   P.N.DESHMUKH, J.

                                                       DATED:    22nd JUNE, 2017.

   ORAL JUDGMENT:


   1.             Rule. Rule is made returnable forthwith.   

2. Record reveals that the respondents were not represented on

earlier date and the matter was adjourned with a view to give

opportunity to the respondents to defend the petition on merits.

However, even today none present for the respondents.

Heard learned Additional Public Prosecutor.

3. Challenge in this petition is to order dated 11th May, 2016

passed by the learned Special Judge, Nagpur, thereby rejecting

application, Exh.42 filed by prosecution, praying to send the samples for

re-testing to Central Forensic Laboratory at Hyderabad. It appears to be

the case of prosecution that on 15th March, 2016 respondents/accused

came to be apprehended and on obtaining their personal search were

found having in their possession 1 kg. Cocaine. Sample which came to

be tested on the spot with the help of field testing Kit provided by the

Central Government Narcotic Control Bureau, Mumbai tested positive

for Cocaine. Bulk quantity as well as samples were accordingly seized

and after completion of investigation respondents came to be charge-

sheeted. It is further case of prosecution that out of seized samples,

one sample came to be sent to Regional Forensic Laboratory, which

tested for Chlorpheniramime Maleate and therefore the Crime Branch of

Narcotic Control Bureau had taken tablets of Chlorpheniramine Maleate

available in the market and after grinding it in the powder form,

applied test of it with the help of Narcotic Drugs Detection Kit and

found that powder is "Cocaine". It is therefore the case of prosecution

that samples are necessary to be re-sent to Central Forensic Laboratory

at Hyderabad however, said laboratory refused to re-test the samples for

want of order of the Court and thus, filed application which came to be

rejected under the impugned order by the learned Special Judge.

4. Perusal of impugned order would reveal that the same came

to be rejected mainly on the ground that the re-testing of samples was

not prayed for within fifteen days from the date of receipt of report and

only in exceptional circumstances period of fifteen days can be

extended. Above observations of the leaned Special Judge is based on

the ratio in the case of Thana Singh ..vs.. Central Bureau of Narcotics

in Criminal Appeal No.1640 of 2010. In view of the ratio laid down

by the Hon'ble Apex Court in the case of Thana Singh (cited supra) it

was necessary for the prosecution to make out special circumstances,

which prevented prosecution from not applying within fifteen days for

retesting of sample. Admittedly, there is nothing on record to establish

that the test carried out by Regional Forensic Science Laboratory was

not according to the scientific norms. Merely because Central Forensic

Laboratory at Hyderabad is equipped with advanced facilities for

carrying out the test, by itself can be no ground for allowing retesting of

samples. In that view of the matter and since the ground putforth by

prosecution as aforesaid is not sufficient to allow its request, there

appears no reason to interfere in the order passed by the learned

Special Judge. In the circumstances, there is no substance in the

petition. Same is therefore dismissed. Rule is discharged.

Registrar (Judicial) to communicate this order to the

concerned Special Court who is seized with the Special Case arising out

of Crime No.3272 of 2016 under N.D.P.S.Act.

JUDGE chute