Madhya Pradesh High Court
Union Of India Central Bureau Of ... vs Govind on 5 January, 2023
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 5th OF JANUARY, 2023
CRIMINAL REVISION No. 2360 of 2022
BETWEEN:-
UNION OF INDIA CENTRAL BUREAU OF
NARCOTICS JAIORA DISTRICT RATLAM
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANOJ KUMAR SON -ADVOCATE )
AND
GOVIND S/O SHRI DILIP TIPAN, AGED ABOUT 30
YEARS, GANDHI NAGAR KARANCHARI COLONY,
MANDSAUR AT PRESENT LODGED IN SUB JAIL
JAORA DISTRICT RATLAM (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI GIRISH DESAI ALONG WITH MS.
NIDHI JAIN, - ADVOCATE )
_____________________________________________________________________
This revision coming on for admission this day, the court passed the
following:
ORDER
This Criminal Revision has been filed against the impugned
order/judgment dated 06/06/2022 passed by the Special Judge, ( under
the NDPS Act ) Jaora, District - Ratlam in Crime no. 01/2022 registered
at police station - CBN, Jaora, District - Ratlam, by which the trial
Court has dismissed the application filed by the petitioner for re-testing
of the sample
2. Brief facts of the case are that on 29/01/2022, the petitioner
intercepted
Signature Not Verified a car bearing registration no. MP-44-CA-6378 and during
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MAHANAG
Signing time: 1/5/2023
6:21:31 PM
search, recovered 290 grams heroin from the possession of the
respondent/accused Govind. After proceeding of search, seizure of
contraband and the vehicle, the respondent/accused was arrested. After
taking two samples of the seized contraband, one sample was sent to
Government Opium and Alkaloid Works, Neemuch for chemical analysis
and as per the report dated 20/04/2022, it is concluded that the sample
answers to the positive test for the presence of opiates possibility of
presence of heroin in the sample cannot be ruled out therefore the
sample be forwarded to CRCL New Delhi for its exact identification
characterisation and quantification of opiate before taking any executive
decision.
3. The petitioner filed an application before the trial Court for
re-testing of the sample. After hearing both the parties, the trial Court
rejected the application filed by the petitioner on the ground that in view
of the judgment delivered in the case of Thana Singh Vs. Central
Bureau of Narcotic reported in (2013) 2 SCC (Cri) 818), the case does
not fall in the category of the exceptional case and the prosecution has
failed to prove the provision of law and protocol, which is contrary to
the said judgment. Being aggrieved by the impugned order, the petitioner
has filed present revision before this Court.
4. Learned counsel for the petitioner has contended that in the
present case, the prosecution filed an application for re-testing of the
sample within 15 days and the report of GOAW, Neemuch specifically
stated in its report that the sample shall be forwarded for retesting to
CRCL New Delhi. The expert has advised for re-testing of the sample,
hence the order of the trial Court is contrary to law and facts. Without
considering the provision of the NDPS Act, the trial Court has rejected
the application. Under these circumstances, learned counsel prays that
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MAHANAG
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6:21:31 PM
the impugned order be quashed and the application filed by the petitioner
be allowed and the seized sample be sent for its re-testing to CRCL,
New Delhi.
5. Learned counsel for the respondent/accused has opposed the
revision and prays for its rejection by submitting that the impugned order
passed by the trial Court is according to law and as per the judgment
delivered by Hon'ble Apex Court in the case of Thana Singh (supra),
therefore, this revision petition is not maintainable.
6. Section 52-A of the NDPS Act reads as follows :
"52A. Disposal of seized narcotic drugs and
psychotropic substances (1) The Central Government
may, having regard to the hazardous nature of any
narcotic drugs or psychotropic substances, their
vulnerability to theft, substitution, constraints of proper
storage space or any other relevant considerations, by
notification published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of
narcotic drugs or class of psychotropic substances which
shall, as soon as may be after their seizure, be disposed of
by such officer and in such manner as that Government
may from time to time, determine after following the
procedure herein- after specified."
7. Hon'ble Supreme Court in the case of Thana Singh (supra),
it has been held as under :
"27 Therefore, keeping in mind the array of
factors discussed above, we direct that, after the
completion of necessary tests by the concerned
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laboratories, results of the same must be furnished to all
MAHANAG
Signing time: 1/5/2023
6:21:31 PM
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."
8. Perusal of the aforesaid judgment shows that the application
for re-testing of the sample can be allowed, if there are extremely
exceptional circumstances for cogent reason and the application must be
made within 15 days from the date of receipt of report, but the same
cannot be allowed as a matter of course and without any compelling
circumstances
9. In the instant case, the prosecution filed an application for
re-testing of the sample within 15 days and the report of GOAW,
Neemuch specifically stated in its report that the sample shall be
forwarded for retesting to CRCL New Delhi. The CRCL New Delhi is an
advanced laboratory in comparison to GOAW, Neemuch. Opinion of an
expert is useful for the Court to make opinion regarding the seized
contraband, therefore, in the circumstances of the case, it appears that
there is extremely exceptional circumstances, in which re-testing of the
sample is quite necessary. The trial Court did not consider all these
aspect. Re-testing of the sample is quite necessary in the instant case.
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Signed by: AMOL N
MAHANAG
Signing time: 1/5/2023
6:21:31 PM
10. In light of the aforesaid discussion, present revision petition
filed by the petitioner is allowed and the impugned order dated
06/06/2022 passed by the trial Court is hereby set aside. The application
for re-testing of the seized sample filed by the petitioner is allowed and
the trial Court is directed to send the seized second sample of the
contraband for the purpose of re-testing to CRCL, New Delhi according
to law.
11. Present revision petition stands disposed of accordingly.
Certified copy, as per Rules.
(ANIL VERMA)
JUDGE
amol
Signature Not Verified
Signed by: AMOL N
MAHANAG
Signing time: 1/5/2023
6:21:31 PM
