Punjab-Haryana High Court
Santokh Ram @ Sukha vs State Of Punjab on 30 January, 2024
Neutral Citation No:=2024:PHHC:012622
2024:PHHC:012622
CRR-47-2015 1
242 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRR-47-2015
Reserved on: 23.01.2024
Pronounced on: 30.01.2024
Santokh Ram @ Sukha
.....Petitioner
Versus
State of Punjab
....Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Kamaldip Singh Sidhu, Advocate
for the petitioner
Mr. Sandeep Kumar, DAG, Punjab
***
Harpreet Singh Brar, J. (Oral)
1. The present revision petition is preferred against the impugned order
dated 15.12.2014 passed by learned Special Court, S.B.S. Nagar, whereby the
application dated 25.11.2014 for re-sampling the second sample by Chemical
Examiner, Kharar has been allowed in FIR No. 93 dated 09.08.2013 registered
under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter 'NDPS Act') at Police Station Rahon, S.B.S Nagar.
2. Briefly, the facts are that on 09.08.2013, the police party was
patrolling and had established a checkpoint at Adda Bharta when a white coloured
Maruti car, driven by the petitioner, came to the spot and was apprehended on
suspicion. The Investigating Officer- A.S.I Nand Lal, found two plastic bags lying
on the back seat of the car and suspected them to be carrying contraband. After
receiving consent from the petitioner, the police party proceeded to search the said
plastic bags and recovered poppy husk from the same. The two bags were
weighed at 28 kg each and two samples of 250 g each were separated from each of
the bags. The four samples hence separated were sealed by the Investigating
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Office with his seal 'NL.' Thereafter, final report under Section 173 of the Code of
Criminal Procedure, 1973 (hereinafter 'Cr.P.C.') was filed on 13.01.2014, along
with the Chemical Examination Report by Chemical Examiner, Kharar dated
11.01.2014 (Annexure P-2), following which the learned trial Court framed
charges against the petitioner.
3. Vide Dispatch No. 2304 dated 13.10.2014 (Annexure P-3), office of
Chemical Examiner, Kharar conveyed to the learned trial Court that the sample in
the case titled 'State v. Santokh Ram alias Sukha' has been misplaced during a
vigilance inquiry and requested that another sample be deposited so a report could
be issued. The prosecution filed an application dated 28.10.2014 under Section
311 and 91 of the Cr.P.C.(Annexure P-6) calling for a report from the office of
Chemical Examiner, Kharar. Thereafter, the prosecution filed another application
dated 10.11.2014 requesting for a search to be conducted to recover the lost
sample so the report can be generated for the sample taken from the second bag
and can be attached with the final report under Section 173(8) of the Cr.P.C.
4. During the pendency of the application dated 28.10.2014, the
prosecution filed another application dated 25.11.2014 (Annexure P-7) with the
same request to send another sample from the second bag for re-examination to
the Chemical Examiner, which was allowed by the learned trial Court vide
impugned order dated 15.12.2014.
5. Learned counsel for the petitioner assails the impugned order on the
ground that resampling of the contraband can only be allowed within fifteen days
of receipt of report from the Chemical Examiner only as has been held by the
Hon'ble Supreme Court in Thana Singh v. Central Bureau of Narcotics (2013)
2 SCC 603. The prosecution has failed to make any efforts towards calling the
report from Chemical Examiner, with respect to the lost sample, for one year after
commencing of the trial, even after receiving the report dated 11.01.2014
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(Annexure P-2). Further, the learned trial Court has recorded no reasons to justify
the criterion of exceptional circumstances, necessary for resampling as laid down
by this Court in Karan Kakkar v. State of U.T. Chandigarh 2014(4) R.C.R.
(Criminal) 159, and as such, the impugned order deserves to be set aside.
6. Per contra, learned State counsel opposes the prayer and submits that
the petitioner was found to be in conscious possession of 56 kg of poppy husk,
which falls under the ambit of commercial quantity and resampling of the second
sample is necessary for just and fair adjudication of the case at hand.
7. Having heard the learned counsel for the parties and after perusing
the record of the case with their able assistance, it transpires that the sample taken
from the second bag of the recovered contraband, was misplaced during a
vigilance inquiry. The same was intimated to the learned trial Court by Dr. Kulbir
Singh, from the office of Chemical Examiner, Kharar vide Dispatch No. 2304
dated 13.10.2014 (Annexure P-3).
8. A two Judge bench of the Hon'ble Supreme Court in Thana Singh v.
Central Bureau of Narcotics (supra), categorically held that no resampling
requests shall be entertained unless such application is backed by exceptional
circumstances and made within fifteen days of receipt of the test report.
"25. Therefore, keeping in mind the array of factors discussed above,
we direct that, after the completion of necessary tests by the
concerned laboratories, results of the same must be furnished to all
parties concerned with the matter. Any requests as to retesting/re-
sampling shall not be entertained under the Narcotic Drugs And
Psychotropic Substances 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 Narcotic Drugs And Psychotropic
Substances Act." (emphasis added)
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9. However, the fifteen day bar would be inconsequential in the present
factual matrix as the lost sample was never examined in the first place and
therefore, naturally, no test report was received with respect to it. The need for
resending a sample arose because the original sample was lost during a vigilance
inquiry and not on account of any lapses on part of the investigating authority.
Neither the prosecution nor the accused can be allowed to take advantage of
hyper-technical grounds to escape lawful adjudication. As such, it would be in the
interest of justice if another sample is drawn from the second bag and sent for
chemical examination. Reliance in this regard can be placed on the judgment
rendered by a Division Bench of this Court in Amarjit Singh vs. State of Punjab
2013 (4) R.C.R. (Criminal) 524, where, speaking through Justice M. Jayapaul,
the following observations were made:-
"22. Even though the Narcotic Drugs And Psychotropic Substances
Act does not have any provision pertaining to the second test of the
sample, at the instance of the prosecution, there may arise an
occasion which would warrant recourse to second test. It may be a
case where the sample contraband sent for examination was lost in
transit or could not be traced before ever the test was embarked upon
by the Laboratory. The sample would have been subjected to damage
during transit or at the Laboratory. There may be a case where the
seal found affixed on the sample does not match with the sample seal
sent along therewith for comparison by the Chemical Examiner
before ever opening the sample for test. Though the Narcotic Drugs
And Psychotropic Substances Act does not recognise the right of the
prosecution to go in for second test, the aforesaid contingencies
warrant second test in the interest of justice. Negation of the plea for
second test even in such contingencies would definitely lead to
miscarriage of justice. But at the same time the prosecution cannot
simply come with an application for re-test of the sample already
collected or drawn afresh from the bulk quantity just because it was
not satisfied with the report submitted at the first instance by the
Chemical Examiner. In case the sample itself was tampered with at
the instance of the accused or at the instance of the Chemical
Examiner, of course, the prosecution can pray for fresh test by
another Laboratory of the sample already kept or the sample draw
from the bulk of the quantity. Under such circumstances two sets of
opinion, may emerge in a particular case. Under the PFA Act and the
Insecticides Act, the ultimate report submitted by the Analyst has
been termed as conclusive proof. But in the Narcotic Drugs And
Psychotropic Substances Act there is no such provision to term the
report ultimately submitted by the Central Forensic Science
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Laboratory as conclusive proof, making in roads into the domain of
the Evidence Act. When the Special Act governing the narcotic
offences does not speak about the relative probative value of the first
result and the final result of the sample, the general law of evidence
will have to be applied." (emphasis added)
10. In view of the above discussion, the present petition is dismissed and
the impugned order dated 15.12.2014 passed by learned Special Court, S.B.S.
Nagar, whereby the application dated 25.11.2014 for re-sampling the second
sample by Chemical Examiner, Kharar, is upheld.
11. Pending CRM(s), if any, are also disposed of accordingly.
(HARPREET SINGH BRAR)
30.01.2024 JUDGE
Ajay Goswami
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
Neutral Citation No:=2024:PHHC:012622
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