Nihal Khan vs The State (Govt Of Nct Of Delhi) ...
2007 Latest Caselaw 7 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. These petitions are taken up together and are being disposed of by this common judgment as they raise a common question. The issue involved in these petitions is whether in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') a direction can be given for the sending of a second sample for testing after taking the same from the remaining case property.

2. The parameters of the aforesaid issue would be clearly understood if the factual context of one of the cases is taken into consideration. For this purpose, I take up the case of Nihal Khan (Crl Rev. P.653/2006). The facts as per the prosecution in this case are that on 16.09.2002, a secret information was received by the police station Narcotics Branch, Kamla Market that a boy named Nihal Khan of Bareilly (U.P.) used to supply heroin in Delhi from Bareilly and that on 16.09.2002 itself between 6.00 and 7.00 p.m., he would supply 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 minor difference in colour of mark 'B' and mark 'C'". According to the petitioner, mark 'C' was the alleged recovery from the petitioner and mark 'B' was the sample taken from the said recovery. The differences in colour have created a doubt about the alleged recovery of heroin. According to the petitioner, the sample sent for CFSL testing contained a higher percentage of diacetylmorphine, whereas the alleged recovered substance had a much lower percentage of heroin, if at all. This has, according to the petitioner, created a doubt about the recovery as well as about the tampering with the alleged recovered heroin.

4. In this context, an application dated 06.07.2006 had been moved on behalf of the petitioner for sending the sample for testing after taking the same from the remaining case property, i.e., the parcel marked 'C'. By virtue of the impugned order dated 07.07.2006, the learned Special Judge (NDPS Act, Delhi) dismissed the application after considering the decisions of this Court in the matter of Kailash Singh v. State 37 (1998) DLT 145 and Directorate of Revenue Intelligence v. Vinod Kumar 144 (2004) DLT 475. The decision in Kailash Singh (supra) was rendered in an appeal against the conviction for the offence punishable under Section 21 of the NDPS Act. One of the points raised was with regard to tampering with the case property. The court observed that the police had not bothered even to preserve the case property in a proper manner because the parcel containing the heroin allegedly recovered from the appellant when brought before the trial court was found to have no seals. The court, therefore, concluded that the possibility of some tampering having been done in the Malkhana with regard to the case property could not be completely overruled. In this context, the court made the following observation:

After all if the case property had been kept intact under proper seals, the appellant, if he wanted to challenge the report of the CFSL with regard to the sample, could have prayed to the trial Court for taking another sample from the remaining case property for being analysed.

5. Having held that the case property was tampered with, the learned single Judge in the case of Kailash Singh (supra) acquitted the accused and allowed the appeal. Essentially, the decision does not support the observation contained in the 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 second sample. There is no such finding in the said decision of the Delhi High Court. I wonder as to how the learned Special Judge has come to the conclusion as indicated in paragraph 5 of the impugned order. On the contrary, the decision in Kailash Singh (supra) is one where the accused was acquitted because of the alleged tampering having been done in the Malkhana with regard to the case property. It was also noted that the accused in that case if he wanted to challenge the report of the CFSL with regard to the sample, should have prayed to the trial court for taking another sample for analysis from the remaining case property. This is exactly what the present petitioner is requesting and I see nothing in the judgment in Kailash Singh (supra) which runs contrary to the prayer being made by the present petitioner. The impugned order has been passed on a mis-appreciation of the ratio of the said decision and is liable to be set aside.

This makes it clear that the decision in Kailash Singh (supra) does not, in any way, prohibit the taking of a fresh sample for being sent for testing. On the contrary, it contemplates the taking of such a sample in case the accused does not accept the CFSL report as being representative of the recovered substance.

6. This leaves me to consider the decision in the case of Directorate of Revenue Intelligence (supra). The said decision was rendered in a petition under Section 482, CrPC and was directed against an order dated 19.12.2002 passed by a learned Special Judge by which the prayer of the accused for sending a second sample of the contraband in question to "another" laboratory for Chemical analysis was allowed and for this purpose, the case property allegedly recovered from the accused was ordered to be produced in court. The court, while considering the petition filed on behalf of the prosecution impugning the aforesaid order, observed that the judgment of this Court in Kailash Singh (supra) with regard to the observations pertaining to the sample being drawn again for re-testing have to be held per incuriam. The exact words used by the learned single Judge in Directorate of Revenue Intelligence (supra) are as under:

5. The judgment of Delhi High Court in Kailash Singh v. State was dealing with the provisions of Section 50 of the NDPS Act but the plea of the accused in regard to the tampering of the case property was overruled 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 challenge the opinion given by the expert." The learned Judge then compared the provisions of the Prevention of Food Adulteration Act with those of the NDPS Act and held that while under the former Act, there was provision for re-testing, in the NDPS Act, no such right or provisions had been introduced. The learned Judge then raised the fear that in case the accused is permitted to get the sample of contraband re-tested, a floodgate for manipulations as well as tampering with the case properties may be opened and multiple malpractices may be introduced to avoid stringent punishments under the Act. It is on the basis of these observations that the learned Single Judge set aside the order of the Special Judge permitting the sending of a second sample of the contraband in question to another laboratory for Chemical analysis.

8. There are various difficulties with regard to the decision in Directorate of Revenue Intelligence (supra). The first difficulty, as rightly pointed out by the learned Counsel for the petitioner, is that it is wrongly recorded in paragraph 5 thereof that in Kailash Singh (supra), the plea of the accused in regard to tampering of the case property was overruled. It is because of this impression that the court in Directorate of Revenue Intelligence (supra) came to the conclusion that the observation in Kailash Singh (supra) were per incuriam. As already pointed out above in Kailash Singh (supra), the court came to a categorical finding that the case property had been tampered with. Therefore, the observation in Directorate of Revenue Intelligence (supra) that in Kailash Singh (supra), the plea of the accused in regard to the tampering of the case property was overruled, is not correct.

9. The second difficulty with the decision in Directorate of Revenue Intelligence (supra) is that the court was under the impression that the second sample from the remaining case property was only for the purpose of testing the veracity of the report of the first sample which had been sent for testing. The question of Section 293 of the Code would come into picture when the authenticity and credibility of the test already conducted is in question. However, if a sample is sought to be taken from the remaining case property for the purposes of demonstrating that the sample earlier sent to the laboratory for testing was not representative of the case property, 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 justice so requires.

11. The fourth and most formidable difficulty with the decision in Directorate of Revenue Intelligence (supra) is that the notice of the court was not drawn to a prior decision of a learned single Judge of this Court in the case of Masoom Ali @ Ashu v. State [Crl Rev. P. 195/2004 delivered on 07.04.2004]. In Masoom Ali (supra), the court was considering a revision petition directed against the order dated 21.02.2004 passed by a learned Additional Sessions Judge whereby the application of the petitioner therein to have the sample re-examined by the CFSL to determine the percentage of the diacetylmorphine had been dismissed. The court considered the very question of having the substance re-tested. The question there, of course, was with regard to the percentage content of diacetylmorphine in the recovered substance. Apparently, the first test that was conducted did not reveal the content of diacetylmorphine by percentage. The court came to the conclusion that where in a large quantity of powder, the percentage of narcotic substance is very small, the proportionate reduction in the recovery would have to be made in order to ascertain whether the offence fell within the categories mentioned in the NDPS Act. In this context, the court directed that the trial court shall send the recovered sample for re-examination by the CFSL to ascertain the percentage of diacetylmorphine and thereafter proceeded in accordance with law. This decision was directly on the point of re-testing and was prior in time to that of Directorate of Revenue Intelligence (supra) and clearly runs counter to it. Unfortunately, the attention of the learned single Judge who delivered the judgment in Directorate of Revenue Intelligence (supra) was not drawn to this decision in Masoom Ali (supra). As such, the decision in Directorate of Revenue Intelligence (supra), cannot but be held to be per incuriam.

12. Lastly, it must also be pointed out that the decision in Directorate of Revenue Intelligence (supra) pertained only to the question of sending a second sample of the contraband to "another laboratory" for Chemical analysis. The question which arises in the present petitions is not for sending the second sample for testing to another laboratory, but for taking a second sample from the case property for testing, even at the same laboratory. On this ground also, the decision in Directorate 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 report of the Chemical Examiner on consideration whereof the charge of mis-statement and suppression regarding quality and grade of the input had been established against the respondent. In this regard, the Tribunal failed to notice the main aspect of the case that option was granted to the respondent to cross-examine the Chemical Examiner who after taking the samples had given the report. The respondent had, thus, ample opportunity to demolish his report. The respondent did not avail that appertained. It stands establish that the adjudicating officer had given an offer to the respondent to cross-examine the Chemical Examiner. The respondent did not dispute that such an offer was made. The only objection of the respondent was that such an offer was made suo moto and the respondent had not asked for it. The objection was frivolous and misconceived. Therefore, we fail to understand, how the respondent having failed to avail the opportunity to cross-examine the Chemical Examiner could urge that there was violation of principles of natural justice by non-grant of request of the respondent for retesting of the samples. Unfortunately, in the order of the Tribunal there is not even a whisper about the offer given to the respondent to cross-examine the Chemical Examiner. Thus, the first reason given by the Tribunal for coming to the conclusion that there has been violation of the principles of natural justice is not sustainable.

14. It is clear that the case before the Supreme Court was one under the Customs Act and the Supreme Court proceeded on the ground that there was also no bar in granting an opportunity for having the samples re-tested. So, it was not in issue before the Supreme Court as to whether in the absence of any provision permitting re-testing, such a re-retesting could be ordered by a court. It must also be understood that the purpose of re-testing of samples in the case before the Supreme Court was for demolishing the report of the Chemical examiner and the Supreme Court disallowed such a request holding that the disallowance of such a request was in order, particularly because the respondent in that case had failed to even avail of the opportunity to cross-examine the Chemical Examiner. It is, therefore, clear that the reference to the decision of the Supreme Court by the prosecution is not appropriate and would not be applicable to the issue being considered 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 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 permissible for the court, if it so feels, to direct re-testing. These instances are merely illustrative. There may be other situations where it would be necessary for the court to direct a fresh sample being taken from the case property and being sent for testing if it feels that it would secure the ends of justice and help the court in arriving at the truth.

16. In these circumstances, the impugned orders cannot be sustained. The same are set aside. The matters are remanded to the respective courts for consideration of the applications afresh. After hearing the counsel for the parties, the respective courts shall pass the orders in accordance with law and the parameters indicated above.