Bombay High Court
Mohd. Afzal Hussain Shaikh vs Union Of India And Anr on 12 December, 2022
Bench: Amit Borkar
4-APL-14-2022.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 14 OF 2022
Mohd. Afzal Hussain Shaikh ... Applicant
V/s.
Union of India and Anr ... Respondents
Mr. Rajendra S. Bidkar for the applicant.
Mr. A.R. Patil, APP for the State.
Mr. Shreeram Shirsat a/w Amandeep Singh, Sra a/w
Shekhar Mane, Nishit Singhvi for respondent-NCB.
Mr. A.A. Ansari, Additional Government Advocate &
Incharge.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 12, 2022
P.C.:
1. The petitioner has been prosecuted for offences under the
provisions of Narcotic Drugs and Psychotropic Substance Act,
1985. According to the petitioner, initially a contraband substance
was sent to C.R.C.L Laboratory at Delhi. The CA report was
negative. The prosecution thereafter filed another application
before the leaned Special Court for sending second sample to in
other laboratories which has been upheld by the impugned order.
The said order is the subject matter challenge in the present
petition.
2. The learned Advocate for the petitioner relying on the
judgment in Thana Singh Vs. Central Bureau of Narcotics in
Criminal Appeal No.1640 of 2010 submitted that the second
4-APL-14-2022.doc
application is not maintainable and, therefore, the learned Special
Judge should not have allowed the application for retest of
contraband.
3. Per contra, learned Advocate appearing for respondent No.1
relying on the Judgment of Thana Singh (supra) submitted that
retesting is permissible under exceptional circumstances as
interpreted by the Apex Court. He relied on paragraph No.24 and
25 of the judgment to urge that the re-test/re-sampling shall not
be entertained under the provisions of the NDPS Act as a matter of
course. However, it can be permitted in extremely exceptional
circumstances for cogent reasons to be recorded by the Presiding
Judge. Learned Advocate for the petitioner submitted that the
impugned order has been passed without giving opportunity of
hearing to the petitioner but nor does it reflects application of
mind by giving reasons.
4. On perusal of the impugned order, it appears that the
learned Judge has not given any reasons for allowing retesting of
contraband, which is contrary to the judgment in Thana Singh
(supra).
5. For the above-stated reasons, following order :-
a) The impugned order passed by the learned District
Judge-Additional Sessions Judge, Kalyan dated 24 th February,
2021 is quashed and aside.
b) Learned Special Judge shall hear both the sides and
shall pass appropriate orders in terms of Judgment of Apex
Court in paragraph No.25 of the Judgment of Thana Singh
4-APL-14-2022.doc
(supra).
6. Rule is partly absolute in the above terms.
7. Before parting, it is necessary to mention that on the earlier
occasion, i.e., on 2nd December, 2022, the respondent No.1 NCB
was directed to file affidavit to explain as to why in various
matters the empaneled advocate is not appearing. In pursuance of
the said order, Superintendent of Narcotic Control Bureau,
Mumbai Zonal Unit has filed an affidavit stating that after receipt
of notice they send a communication to the Law Ministry.
Empanelment or engagement of advocate is done by the Law
Ministry. To have smooth functioning of the matters relating to the
offences arising out of NDPS Act, it is necessary that the Additional
Government Advocate and In-charge of Law Ministry shall file
affidavit within Four (4) weeks from today giving details of the
process of appointing panel advocates to represent Narcotics Cell
in relation to the offences arising out of the provisions of the NDPS
Act. The Additional Government Advocate shall provide
mechanism of engagement of advocate in the matters arising out
the provisions of NDPS Act.
8. List the matter on 16th January 2023. To be placed under the
caption 'for compliance'.
(AMIT BORKAR, J.)
