Delhi High Court
Nepal Chand @ Doctor vs State (Delhi Administration) on 19 February, 2010
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: February 11, 2010
Judgment pronounced on: February 19, 2010
+ Crl. M.C. No. 3680 of 2009
% Nepal Chand @ Doctor ... Petitioner
Through: Mr. Sanjay Suri and Mr. Rishabh
Relan, Advocates.
versus
State (Delhi Administration) ...
Respondent
Through: Mr. R.N. Vats, Additional Public
Prosecutor with SI Rajeev Singh
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local
papers may be allowed to see
the judgment?
2. To be referred to Reporter or No.
not?
Whether the judgment should
3. be reported in the Digest?
SUNIL GAUR, J.
1. Petitioner is facing trial in FIR No. 43 of 2008, under
Section 21/29 of the NDPS Act, 1985, registered at Police
Station Narcotic Cell, Delhi. His application for sending fresh
Crl. M.C. No. 3680 of 2009 Page 1
samples from the case property of this case, for re-testing
stands declined vide impugned order of 23 rd September, 2009,
by the trial court.
2. Aforesaid application was filed by the petitioner-accused
at the stage of defence evidence. Petitioner claims that the
case property i.e. 150 grams of Heroin when produced before
the trial court, it was of different colour, which raises a
reasonable doubt about the samples tested, to be tampered
one.
3. During the hearing of this petition, counsel for the
petitioner had placed on record copy of the FSL Report of this
case and of the depositions of the Investigating Officer (PW-4)
and that of the MHC (M) (PW-6) and of the Constable (PW-5),
who had taken the samples of this case to FSL. The reason to
doubt the veracity of the testimony of the aforesaid witnesses,
put-forth by the petitioner's Counsel is that the Investigating
Officer has admitted in his evidence that the seal with which
the case property was sealed, was returned back to the
Investigating Officer by the witness concerned on the next day
of this incident and by that time the case property of this case
Crl. M.C. No. 3680 of 2009 Page 2
was still lying in the malkhana.
4. It may be so. But for retesting of the case property and
that too, at the fag-end of the trial, a strong case has to be
made out. Since the stage of recording of the prosecution
evidence is over, therefore, it is within the domain of the trial
court and not of this Court to look into the aforesaid evidence
sought to be relied upon by petitioner's Counsel.
5. In a somewhat similar case, another Bench of this Court
in 'Nihal Khan v. State' 2007 [1] JCC [Narcotics] 37, had
remanded the matter back to the trial court to consider
application for retesting of samples afresh. In the light of the
observations made in Para-15 of the aforesaid case, this Court
finds that the proper course would be do likewise.
6. This Court refrains from commenting on the merits of
this case, lest it may prejudice the trial of this case which is at
its final stage. In the considered opinion of this Court, the
belated application in question, was not required to be decided
at the stage of defence evidence itself and the appropriate
course would have been to decide it after hearing the final
arguments. Although the impugned order is being interfered
Crl. M.C. No. 3680 of 2009 Page 3
with, but not on merits of this case. Impugned order is being
set aside solely on the ground that the proper stage in this
peculiar case was at the final stage of arguments, to deal with
the application in question. It is clarified that the contentions
raised in the application in question and before this Court, are
left open to be decided by the trial court after hearing the main
case. This is to say that any observation made in the impugned
order or in this order shall not stand in the way of the trial
court to apply its mind afresh to the whole case at the stage of
final arguments and to consider the feasibility of acceding to
the prayer of the petitioner for retesting, if exceptionally good
case for doing so is made out. Such a course is being adopted
in the peculiar facts of this case and it is made clear that it
would not be treated as a precedent.
7. Resultantly, the impugned order is set aside and the trial
Court is directed to decide petitioner's application of 4th
September, 2009, afresh, in the light of the evidence on record
with promptitude. Trial Court be apprised of this order
forthwith as final hearing before the trial Court is stated to take
place tomorrow.
Crl. M.C. No. 3680 of 2009 Page 4
8. This petition and pending application stand accordingly
disposed of.
9. Dasti under the signatures of the Court Master.
Sunil Gaur, J.
February 19, 2010
rs
Crl. M.C. No. 3680 of 2009 Page 5
