Calcutta High Court (Appellete Side)
Ashfaque Ahamed vs State Of West Bengal on 16 June, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
CRM 954 of 2021
Ashfaque Ahamed
Vs
State of West Bengal
For the Appellant : Mr. Sekhar Kr. Basu, Sr. Adv,
Mr. Souvik Mitter, Adv.
Mr. Sayan Mukherjee, Adv.
For the State : Mr. Sanjay Bardhan, Adv.
Ms. Manisha Sharma, Adv.
Heard on : 11.02.2022, 08.04.2022,
13.05.2022, 20.05.2022
Judgment on : 16.06.2022
Joymalya Bagchi, J. :-
The reference has been made in view of difference of opinion between
two Hon'ble Judges of this Court whether to grant bail to the petitioner.
Summary of events:-
Facts giving rise to the reference may be summarised as follows:-
On the basis of credible information which was reduced into writing, a
raiding team comprising of officers attached to Narcotic Cell, Detective
2
Department, Kolkata with the permission of Assistant Commissioner,
Narcotic Cell left the office to work out the information. Around 09.00 hours
they reached Oasis Nature Apartment within Anandapur Police Station. At
09.40 hours the source pointed out three men and one lady who were
coming along Chowbaga Road from EM Bypass side as the suspects. Raiding
team detained them. On interrogation they disclosed their identities.
Petitioner was one of the suspects. Raiding team informed the suspects
including the petitioner about their legal right to be searched in presence of
a gazetted officer or Magistrate. They agreed to be searched in the presence
of a gazetted officer. Thereupon, a gazetted officer, namely, Additional
Officer-in-charge of Anandapur Police Station was requested to come to the
spot and search was conducted in his presence. During search 256 grams of
brown powder sealed in polythene packet suspected to be heroin was
recovered from the petitioner, while 20 grams of similar substance was
recovered from each of his associates. Testing of the seized substance by
testing kit at the spot revealed presence of heroin. Total recovery from the
petitioner and accused persons was 316 grams. Samples of about 5 grams
each was drawn from the seized consignment and kept in separate envelopes
which were marked as A1, C1, E1 and H1 respectively. Petitioner and his
associates were arrested. They along with the seized consignment and
samples were produced before the trial Court. Samples A1, C1, E1 and H1
were sent for chemical examination at State Drug Control and Research
3
Laboratory. Upon examination, State Drug Control and Research Laboratory
vide report dated 01.02.2018 opined the samples did not contain heroin and
do not come under the purview of NDPS Act.
Relevant portions of the said report are set out as follows:-
Parcel No. Description
4. Four brown envelopes marked as Ex: A1, C1,
E1& H1 duly signed and sealed individually
contained a synthetic packet having brown
colour powder.
Identification:-
Chemical Test (Colour Test)
Table 1
Exhibit Marquis Test Frohde's Test
A1 Negative Negative
C1 Negative Negative
E1 Negative Negative
H1 Negative Negative
Assay:-
Results (HPLC Method):
Table: 2
Exhibit Heroin
A1 ------Nil---------
C1 ------Nil---------
E1 ------Nil---------
H1 ------Nil---------
The samples (Ex: A1, C1, E1 & H1) are negative for the
presence of Heroin.
4
Weight-
Table : 3
Exhibit(s) Weight with polythene Remnant weight (gm)
cover (gm)
A1 4.9834 4.8374
C1 5.7653 5.6213
E1 5.5362 5.3872
H1 5.5763 5.4283
Remarks:-The samples (Ex: A1, C1, E1 & H1) do not contain
Heroin and do not come under the purview of NDPS Act,
1985.
On receipt of the said report the investigating agency made application
before the trial Court praying for sending the remnants in sealed condition
for retest by Central Forensic Scientific Laboratory (for short 'CFSL') on the
following ground:-
"The report chemical expert vide SDCRL/245
dt.01/02/2018 has since been received (Xerox copy
attached) which stated that the exhibit marked A1,
C1, E1,H1 does not contain Heroin and does not
come under NDPS Act. But the expert of State Drug
Control and Research Laboratory does not mention
the actual status of the said contrabanddrug.
In view of the above it is prayed before your Honour
to pass necessary direction for sending the remnant
in sealed condition to Central Forensic Scientific
Laboratory, 30,Gorachand, Kol-14 for further to be
tested for presence of either codeine/ morphine like
narcotic substance."
5
Trial Judge vide order dated 03.02.2018 allowed the retesting of the
remnants of the samples by CFSL. The order reads as follows:-
"Record is put up on petition filled by Ld. P.P. -
in- charge.
I.O. S.I. Kalyan Biswas has submitted prayer for
sending the remnants of the samples in sealed
condition marked 'A1', 'C1', 'E1', 'H1' to Central
Forensic Laboratory, 30, Gora Chand Road, Kol-14
for further test regarding presence of codeine/
morphine like narcotic substance. A Xerox copy of
Letter received from Director, State Drug Control
and Research Laboratory along with Xerox Copy of
Report of analysis by said Laboratory is enclosed
with the application.
Heard Ld. P.P.-in-Charge.
Perused the petition and it enclosures.
Considered.
Prayer for further examination of the remnants
of the samples in sealed condition is allowed to be
held at Central Forensic Science Laboratory as per
prayer of the I.O.
I.O. is accordingly directed to take steps for
sending the same to C.F.S.L., Kolkata.
To date i.e., 13.02.2018.
Let a copy of this order be supplied to the I.O.
for his information and necessary action."
Pursuant to such order the remnants of the samples were retested and
CFSL vide report dated 23.03.2018 opined as follows:-
"Result of Examination
Using suitable chemical/colour test and
instrumental methods of chemical analysis (GC-MS
& FT-IR techniques) of the content of exhibits
marked here as Chem 55/18/1 to Chem 55/18/4
the following results were obtained:
(i) 6-Monoactylmorphine (6-MAM), Acetylcodeine
and Alprazolam (covered under NDPS Act) were
6
detected in the content of each of the exhibits
marked here as Chem 55/18/1 to Chem 55/18/4.
(ii) The colouring gent/dye viz 3-Hydoxy-2-
napthoyt-ortho-anisidide & N.N'-Diacetyldianiiine
and Caffeine (not covered under NDPS Act) was also
detected in the content of each of the exhibits
marked here as Chem 55/18/1 to Chem 55/18/4."
On the strength of the subsequent test report charge sheet was filed
against the petitioner and the other accused persons. Charges were framed
under section 21(c) read with section 29 of the NDPS Act. At this stage the
petitioner moved an application for bail primarily contending the subsequent
test report cannot be taken into consideration as the same was obtained in
contravention of the directions in Thana Singh vs. Central Bureau of
Narcotics1. In support of such plea it was contended copy of the initial
exonerative report from State Drug Control and Research Laboratory was
neither supplied to the petitioner during investigation nor was it reflected in
the police report filed before the Court. Consequentially, petitioner had no
opportunity to oppose the application of the investigating agency for
retesting which was allowed by the Court below in a mechanical manner by
a non-speaking order. No reasons were given in the order indicating
exceptional circumstances justifying retesting of the samples. It was also
argued no certification of the remnants (sent for retesting) was done by
Magistrate under section 52A of the NDPS Act and there is significant
difference in weight of the samples sent for retesting and the remnants
1
(2013) 2 SCC 590
7
returned by the State Drug Control and Research Laboratory. The prayer
was resisted on behalf of the State on the ground application for retesting
was made within 15 days of receipt of the test report from State Drug
Control and Research Laboratory. Exceptional circumstances necessitating
retesting are reflected not only in the application but are also evident from
the materials on record.
Thana Singh (supra) does not envisage opportunity of hearing to the
accused while considering a prayer for retesting. Exonerative report was not
relied upon and, therefore, not supplied to the petitioner under section 207
Cr.P.C. Such omission, however, has not prejudiced the petitioner as the test
report of the State Drug Laboratory was enclosed with the application for
retesting and was a part of the records of the Court.
Issue raised in the reference:-
Upon hearing the parties, while Tandon, J. was inclined to grant bail
to the petitioner holding subsequent test report had been procured in
contravention of the directions in Thana Singh (supra) and was
inadmissible in law, Ghosh, J. declined the relief holding there were
exceptional and compelling circumstances which justified retesting through
CFSL.
In view of the aforesaid dichotomy, the present reference has been
made.
8
The question which, therefore, falls for decision is:-
Whether the subsequent test report from CFSL was obtained by the
investigating agency in consonance with the ratio in Thana Singh (supra)
and may be relied upon while considering the prayer for bail of the
petitioner?
Opinion:-
NDPS Act does not provide for retesting of sample. In view of such gap
in legislation the Apex Court in Thana Singh (supra) considered it
imperative to redefine retesting rights with regard to articles seized under
the said Act. Taking into account all relevant factors including the necessity
for swift disposal of narcotics cases, the Court in Thana Singh (supra)
issued the following directives in the matter of retesting of samples:-
"27. Therefore, keeping in mind the array of factors discussed
above, we direct that, after the completion of necessary tests by
the laboratories concerned, results of the same must be furnished
to all parties concerned with the matter. Any requests as to re-
testing/re-sampling shall not be entertained under the NDPS Act
as a matter of course. These may, however, be permitted, in
extremely exceptional circumstances, for cogent reasons to be
recorded by the Presiding Judge. An application in such rare
cases must be made within a period of fifteen days of the receipt
of the test report; no applications for re-testing/re-sampling shall
be entertained thereafter. However, in the absence of any
compelling circumstances, any form of re-testing/re-sampling is
strictly prohibited under the NDPS Act."
9
An analysis of the aforesaid directives would indicate the following
procedure to be adopted in the matter of retesting of samples:-
(a) Upon tests of initial samples being completed, results of such tests are
to be furnished to all parties, that is, prosecution and the accused (if
available);
(b) A request for retesting must be made by any party within 15 days of
receipt of such result;
(c) Upon such request being made if compelling and exceptional
circumstances exist, Special Court may permit retesting of samples
after recording cogent reasons in the order;
(d) No application for retesting shall be entertained after expiry of 15 days
or in the absence of compelling circumstances;
In the present case the application for retesting was made by the
prosecution on 02.02.2018, that is, a day after it had received the test
results. The application recorded the reason for retesting, namely, 'expert of
State Drug Control and Research Laboratory did not mention the actual status
of contraband drug'. Upon considering the application, by order dated
03.02.2018 Special Judge permitted further examination of the remnants of
the samples by CFSL. Result from CFSL showed presence of
Monoactylmorphine, Acetylcodeine and Alprazolam in the samples. Tandon,
J., inter alia, held the retesting was contrary to the directions in Thana
Singh (supra). Copy of the samples had not been furnished to the petitioner
10
and he was not given an opportunity of hearing at the time when the order of
retesting was made. Order for retesting is bereft of reasons and, therefore,
the subsequent report is inadmissible in law. On the contrary, Ghosh, J.
was of the opinion records of the case disclose compelling circumstances
justifying retesting. Initial testing at the spot showed presence of Heroin but
report from State Drug Control and Research Laboratory contradicted such
opinion. Actual nature of the seized contraband had not been stated in the
test report of State Drug Control and Research Laboratory. These aspects of
the case gave rise to compelling and exceptional circumstances justifying
retest.
Mr. Basu, learned Senior Counsel, empathically argued copy of the
initial test report had not been supplied to the accused. No notice was given
to him on the application preferred by the prosecution for retesting and he
was denied an opportunity to object to the same. Examining the materials on
record in the light of the ratio in Thana Singh (supra), I note copy of the
initial test report had not been given to the accused. The purpose of
supplying copy of the initial report to the parties is to give them an
opportunity to object to the report and pray for a retest of the samples within
a stipulated time frame. As in the present case, initial test report was in
favour of the accused, there was no question of the accused disputing such
report. Hence, failure to supply the initial exonerative test report to the
accused cannot be said to have breached his right to seek retest as
envisaged in Thana Singh (supra). Thana Singh (supra) does not expressly
confer any right of hearing to the accused/ adverse party at the time of
considering a prayer for retest. A judgment cannot be interpreted like a
statue and further rights in favour of a party be inferred therefrom apart
from what is provided therein. Ghosh, J. rightly observed a judgment is an
authority for what it actually decides and not what logically follows from the
various observations made in it 2. Moreover, direction for retest is for
collection of evidence during investigation. Investigation is an inquisitorial
process and principles of natural justice are not attracted at that stage
unless expressly provided by law. Only upon a lis being instituted by filing of
a police report, would an accused get an opportunity to rebut the evidence
collected during investigation i.e., the subsequent test report. While dealing
with right of an accused to be heard at the time of issuing declaration under
section 5 of the Special Courts Act, 1979, the Apex Court in V.C. Shukla vs.
State (Delhi Administration)3 underscored the inapplicability of principle
of natural justice at the stage of investigation. It observed as follows:-
"44. ... It is to be borne in mind that at the stage when the
declaration is sought to be made there is no lis pending nor has
any prosecution been launched against the accused. Section 5
deals only with the decision taken by the Central Government to
prosecute and until that decision is notified, the prosecution does
not start, and the question of an accused being heard at that
stage, therefore, does not arise at all. A couple of instances in
point may be cited here with advantage. In cases where law
requires sanction to be given by the appointing authority before a
prosecution can be launched against a government servant, it has
State of Orissa vs. Sudhansu Sekhar Mishra And Others, AIR 1968 SC 647 (para 13)
1980 Supp SCC 249 (para 44)
never been suggested that the accused must be heard before
sanction is accorded. The question of sanction arises at a point of
time when there is no danger to the liberty of the subject and the
accused at that stage is not in the picture at all. It is only after
sanction is accorded that an accused is brought to trial or
proceedings are started against him when he is to be heard and
can challenge the validity of the sanction. Similarly, when a first
information report is filed before a police officer, the law does not
require that the officer must hear the accused before recording it
or submitting a charge-sheet to the court. Another instance is to
be found where a complaint is filed before a Magistrate who
chooses to hold an inquiry under Section 202 of the Code of
Criminal Procedure before issuing process or summons to the
accused. It has been held in several cases that at that stage the
accused has got no locus to appear and file his objections to the
inquiry. The right of the accused to be heard comes into
existence only when an order summoning the accused is passed
by the Magistrate under Section 204 of the Code of Criminal
Procedure. In the case of Cozons v. North Devon Hospital,
Management Committee, Lord Salmon pithily observed:
"No one suggests that it is unfair to launch a criminal
prosecution without first hearing the accused.""
That apart, inferring a right to notice and opportunity of hearing at the
time of directing retest during investigation would merely delay the process
and run counter to the letter and spirit of the directions of Thana Singh
(supra) which envisages a regimented time bound procedure for speedy
disposal of narcotic cases. I hasten to emphasis the accused is no way
prejudiced as he has every opportunity to rebut the admissibility, reliability
and probative value of the retest report during enquiry and trial.
Viewed from such perspective it may not be correct to infer an
opportunity of hearing to the adverse party at the time of directing retesting.
Statutes which provide for retesting of samples in the course of investigation
like The Drugs and Cosmetics Act, 19404, The Prevention of Food
Adulteration Act, 19545, do not envisage notice and hearing to the adverse
party for permitting retesting. Hence, I am of the opinion that the ratio in
Thana Singh (supra) does not expressly or impliedly require notice or
opportunity of hearing to the adverse party/accused for the purpose of
directing retesting.
Mr. Basu further argued that the investigation was an unfair one.
Initial exonerative test report was suppressed and not reflected in the police
report submitted in conclusion of investigation. In this regard, he referred to
Criminal Trials Guidelines Regarding Inadequacies and Deficiencies,
In Re vs. State of Andhra Pradesh and Others 6 wherein the Apex Court
held that exculpatory materials collected in the course of investigation
require to be listed in the police report. Such list is to be furnished to the
accused so that the latter may, if so advised, seek production of such
documents in the interest of justice. The Court approved 'Draft Criminal
Rules on Practice, 2021' wherein Rule 4 Chapter 1 relating to
'investigation' mandates as follows:-
"Chapter I: INVESTIGATION
1. ***
2. ***
3. ***
4. Supply of documents under Sections 173, 207 and 208
CrPC. - (i) Every accused shall be supplied with statements
Section 25 of The Drugs and Cosmetics Act, 1940
Section 13 of The Prevention of Food Adulteration Act, 1954
(2021) 10 SCC 598
of witness recorded under Sections 161 and 164 CrPC and a
list of documents, material objects and exhibits seized
during investigation and relied upon by the investigating
officer (IO) in accordance with Sections 207 and 208 CrPC.
Explanation: The list of statements, documents, material objects
and exhibits shall specify statements, documents, material
objects and exhibits that are not relied upon by the investigating
officer."
The aforesaid directions are to ensure a fair and impartial
investigation. It was imperative on the part of the investigating agency to
disclose the initial exonerative test report of State Drug Control and
Research Laboratory in the charge-sheet. Though in the present case the
police report does not refer to the exonerative test report, a copy of the said
report was annexed to the application for retest and was a part of the
records of the Court and accessible to the petitioner. In fact, upon inspection
of the records petitioner had relied upon the initial report and has prayed for
bail. Thus, failure of the investigation agency to refer to the exonerative test
report in the charge-sheet, though not appreciated by this Court, has not
caused prejudiced to the petitioner or occasioned any failure of justice.
Procedural law must always be tested on the anvil of prejudice and unless
deviation therefrom causes irreparable prejudice to the accused and
occasions failure of justice the same would not vitiate the prosecution.
Other infraction of the ratio in Thana Singh (supra) which has been
canvassed before him is absence of reasons in the order for retest. Thana
Singh (supra) mandates there must be compelling and exceptional
circumstances for retesting. It categorically provides in the event the
application for retesting is not made within 15 days of receipt of the report or
no compelling circumstances exist, retesting shall not be permitted. In order
to ensure that frivolous applications for retest are nipped in the bud, the
Apex Court directed Special Judge must record cogent reasons while
permitting such retest. In the present case, application for retest enclosed
the initial report and clearly cited the compelling circumstance in support of
such prayer. Order of the Special Judge, inter alia, shows that he had
perused and considered the petition and its enclosures. While dealing with
the requirement of recording reasons in an order or remand by a Magistrate,
a Constitution Bench of the Apex Court in Mowu vs. Superintendent,
Special Jail, Nowgong, Assam and Others 7, inter alia, held as follows:-
"19. ...when the order-sheet speaks of the Magistrate having
perused the police report for remand, the reasons and the
circumstances set out in the report would be the reasons for
passing the orders of remand."
In view of the observation in Mowu (supra), I am of the opinion the
compelling circumstances set out in the application must be treated to be
the reasons for passing the order for retest.
The issue may be viewed from another angle. Order for retest is to
collect further evidence in the course of investigation. If exceptional and
compelling circumstances are evident from the facts of the case and have
been canvassed in the application for retest, merely because the order of the
(1971) 3 SCC 936
Special Judge is unhappily worded and is a cryptic one, would it be a ground
to ignore the additional evidence, that is, subsequent test report? It is trite
law evidence collected in the course of illegal search cannot be per se
ignored. Admissibility and probative value of such evidence must be judged
in the facts of each case (see Pooran Mal vs. Director of Inspection
(Investigation) New Delhi And Others 8 and Dr. Pratap Singh And
Another vs. Director of Enforcement, Foreign Exchange Regulation Act
And Others9). Similarly, a subsequent test report obtained pursuant to a
prayer for retesting reflecting the compelling and exceptional circumstances
evident from the facts of the case cannot be ignored on the mere ground the
order directing retest is a cryptic one. To do so would be an incorrect reading
of the ratio of Thana Singh (supra) and be contrary to the interest of
justice. Reading the directions in Thana Singh (supra) as a whole would
show retesting is impermissible only if the application is made beyond the
stipulated time or there are no compelling circumstances justifying such
course of action. If these two conditions are satisfied, retesting of samples
cannot be said to be at variance with the requirements of Thana Singh
(supra) and the subsequent report be construed inadmissible in law.
Factual matrix of the case discloses compelling and exceptional
circumstances justifying retest. Initial report of State Drug Control and
Research Laboratory merely stated the samples did not contain heroin and
(1974) 1 SCC 345 (paras 23 and 24)
(1985) 3 SCC 72 (para 15)
do not come under the purview of NDPS Act, 1985. There was no finding in
the report with regard to the actual status/ chemical composition of the
seized contraband. Hence, the report was an incomplete one and this
prompted the agency to seek retest with regard to actual nature of the seized
contraband. This is clearly an exceptional and compelling circumstance and
has been succinctly reflected in the application for retest. To highlight the
deficiency in the initial report, the agency clarified that the seized articles
had not been tested for presence of other narcotic substance like codeine/
morphine. These compelling circumstances justify a retest which came to be
allowed by order dated 03.02.2018. Upon retesting by CFSL, the samples
were found to contain Monoactylmorphine, Acetylcodeine and Alprazolam
which are narcotic/ psychotropic substances under the NDPS Act. Since the
initial test report was ex facie an incomplete one and did not disclose the
exact status/ chemical composition of the seized article, I am of the view
there were exceptional and compelling reason for retest. It may also be
relevant to note that the methodology followed by the State Drugs Control
and Research for analyzing the samples were different from those adopted by
CFSL. While the State Drug Control and Research Laboratory used HPCL
(High-Performance Liquid Chromatography) method, CFSL used different
methodology, namely, GC-MS (Gas Chromatography-Mass Spectrometry),
FT-IR (Fourier Transform - Infrared Spectroscopy) techniques for analysis of
the samples. These compelling and exceptional circumstances fully justify
retesting by CFSL in the facts of the present case.
In Laxmi Nagappa Koli vs. Narcotic Control Bureau and
Another10 prayer for retest by CFSL, Hyderabad was disallowed in the
factual matrix of the said case. In that case a sample had already been
unsuccessfully tested at CFSL, Hyderabad. Further report of CFSL, Mumbai
stated the samples were composed of Nitrogen bearing organic compound
which ruled out the possibility of presence of Heroin as the latter is not a
Nitrogen based compound. In this backdrop a subsequent prayer for retest
at CFSL, Hyderabad was disallowed.
Finally, it is argued there is no certification of the remnant samples
under section 52A of the NDPS Act prior to retesting. There is also difference
in weight of the remnant samples as per notings in the report of State Drug
Control and Research Laboratory vis-à-vis the CFSL report.
It is undisputed that after seizure of the contraband requirements of
section 52A of the NDPS Act had been complied with in this case. Initially,
samples were sent to State Drug Control and Research Laboratory and
tested. Thereafter, remnants of the samples in sealed packets were received
from the State Drug Control and Research Laboratory and on the direction of
the Special Court were sent for retesting. Thana Singh (supra) does not
entail a further certification of the samples under seizure 52A of the Act for
(2015) 13 SCC 598
the purpose of retesting. Hence, there is no breach of section 52A in the
matter of retesting of samples.
With regard to the difference in weight of the samples, it is unclear
from the report of the State Drug Control and Research Laboratory whether
the weight of the remnants noted therein is with or without polythene cover,
while the weight noted in the CFSL report is without the polythene cover.
This issue is a factual one and may be thrashed out in the course of trial.
Remnants is sealed packets received from State Drugs Laboratory were sent
for retesting at CFSL. It is nobody's case the seals of the packets in which
remnants were received from State Drugs Laboratory were tampered. Hence,
I am of the prima facie opinion there is no breach in the chain of custody of
the retested samples.
Conclusion:-
In view of the aforesaid discussion, I hold subsequent test report
showing presence of narcotic substance in the seized contraband was
obtained in accordance with law and may be relied upon while considering
the prayer for bail of the petitioner.
The report when read in conjunction with other materials on record
prima facie establish the contraband recovered from the petitioner contained
narcotic substance above commercial quantity.
In view of the aforesaid facts and the statutory restrictions under
section 37 of the NDPS Act in the matter of grant of bail, I am not inclined to
grant bail to the petitioner.
The application for bail is, thus, rejected.
Reference is, accordingly, answered.
(Joymalya Bagchi, J.)
PA (Sourav)
