The Senior Intelligence Officer, vs Bobba Venkat Reddy
2021 Latest Caselaw 2949 Tel

 IN THE HIGH COURT FOR THE STATE OF TELANGANA
                 AT: HYDERABAD
                     CORAM:
       * THE HON'BLE SRI JUSTICE K. LAKSHMAN
            + CRIMINAL PETITION No.1745 OF 2021

% Delivered on: 25-10-2021
Between:

# The Senior Intelligence Officer,
  Directorate of Revenue Intelligence
  Hyderabad                                          ...... Petitioner
                                  Vs.
$ Bobba Venkat Reddy
  and others                                          .. Respondents/
                                                         A.1 to A.3

! For Petitioner                : Sri Namavarapu Rajeshwar Rao,
                                  Lr.Asst.Solicitor General of India

^ For Respondent No.1            : Sri Gopalakrishna Gokhaley,
                                   Lr.Counsel.

 For Respondent No.2            : Sri E.Uma Maheshwar Rao,
                                  Lr.Counsel

 For Respondent No.3            : Sri Srinivas Chaturvedi,
                                  Lr.Counsel
< Gist
                         :
> Head Note

? Cases Referred         :

1. (2013) 2 SCC 590.
2. (2018) SCC OnLine Del 12728
3. (2015) SCC OnLine Ker 36482.
                                   2
                                                                      KL,J
                                                     Crl.P.No.1745 of 2021



           HON'BLE SRI JUSTICE K. LAKSHMAN

              CRIMINAL PETITION No.1745 OF 2021

ORDER:

This Criminal Petition is filed under Section 482 of the Code

of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the Petitioner to

set aside the order dated 09.02.2021 passed in Crl.M.P.No.717 of

2020 in F.No.DRI/HZU/48E/ENQ/(INT-61)/2020, by the

Metropolitan Sessions Judge, Nampally, Hyderabad,

2. Heard Sri Namavarapu Rajeshwar Rao, learned Asst.

Solicitor General of India, appearing for the Petitioner, Sri

V.Gopalakrishna Gokhaley, learned Counsel appearing for the 1st

Respondent, Sri E.Uma Maheshwar Rao, learned counsel appearing

for the 2nd Respondent and Sri Srinivas Chaturvedi, learned counsel

appearing for the 3rd Respondent and perused the record.

3. FACTS OF THE CASE:

i) Respondents/Accused Nos.1 to 3 are allegedly involved in the

manufacture, transfer and sale of Ephedrine and Mephedrone. It is

alleged that various quantities amounting to 76 kg. of Ephedrine and

151.10 kg. of Mephedrone were seized from the premises of

Respondent No.1 on 15.08.2020, 16.08.2020 and 18.08.2020.

Respondent Nos.2 and 3 are alleged to aid Respondent No.1 by

transporting the psychotropic substances.

KL,J Crl.P.No.1745 of 2021

ii) On 20.10.2020, an inventory of the material seized was done

in the presence of the VI Additional Chief Metropolitan Magistrate,

Hyderabad.

iii) Nine (9) samples, including the duplicate samples, were

drawn from the seized material and Test Memos were prepared. The

duplicate samples and copies of Test Memos were deposited with the

custodian.

iv) The original samples along with the Test Memos were

forwarded to CRCL, Chennai on 21.10.2020.

v) The test report prepared by CRCL, Chennai dated

11.11.2020 was collected by the authorized officer on 02.12.2020.

vi) The test report stated that one (1) sample tested positive for

Ephedrine and each of the other eight (8) samples were in the form of

off - white powder. The test report stated that the presence of

Ephedrine and Mephedrone could not be verified in the said eight

samples and for exact verification they may be forwarded to CFSL,

Hyderabad.

vii) On 03.12.2020, the samples received form CRCL, Chennai

were sent to CFSL, Hyderabad by the petitioner herein. The same

were retuned stating that in light of the decision of the Apex Court in

Thana Singh v. Central Bureau of Narcotics1, re-testing can only be

done when directed by the Courts of law.

(2013) 2 SCC 590.

KL,J Crl.P.No.1745 of 2021

viii) On 07.12.2020, the Petitioner herein filed Crl.M.P.No.717

of 2020 before the Metropolitan Sessions Judge, Nampally,

Hyderabad, seeking a direction to CFSL, Hyderabad to test the

samples returned by CRCL, Chennai.

3-a) GROUNDS ON WHICH THE CRL.M.P.NO.717 OF 2020 WAS FILED:

i) The test report of CRCL, Chennai, dated 11.11.2020, is

inconclusive as it could not verify the presence of Ephedrine and

Mephedrone in the eight samples.

ii) The test report and the e-mail dated 29.01.2021 also state

that the samples could not be tested for want of reference standard.

iii) In both the test report and the e-mail, CRCL, Chennai

suggested the samples be sent to CFSL, Hyderabad for the exact

identification of samples..

iv) Sending the samples to CFSL, Hyderabad would not amount

to re-testing as the tests were incomplete.

v) Tenable grounds were made out to forward the samples

received from CRCL, Chennai to CFSL, Hyderabad.

3-b) GROUNDS ON WHICH THE CRL.M.P.NO.717 OF 2020 WAS OPPOSED:

i) The samples were tested and no Ephedrine and Mephedrone

was found. Therefore, sending the samples to CFSL, Hyderabad

would amount to re-testing which is prohibited as per Thana Singh

(Supra).

KL,J Crl.P.No.1745 of 2021

ii) As per Thana Singh (supra), re-testing is only allowed when

an application is made within 15 days of the test report. 15 days have

lapsed when the present application was filed.

iii) The tested samples were collected by the authorized officer

and were directly sent to CFSL, Hyderabad without seeking leave of

the Court on 03.12.2020. Therefore, the possibility of contamination

cannot be ruled out.

3-c) FINDINGS OF THE TRIAL COURT IN Crl.M.P. No. 717 OF 2020:-

i) The application for re-testing is to be made within 15 days

from the date of receipt of the test report. The report was received on

02.12.2020 and the present application was filed on 07.12.2020.

Therefore, the application was filed within 15 days.

ii) The test report revealed that the method which was followed

for testing was titled 'Standard Established Procedure for Ephedrine

and Mephedrone' and it was also observed in the test report that the

presence of Ephedrine and Mephedrone could not be verified.

iii) The observation in the test report in light of the definition of

the word 'verified' is giving a meaning that no presence of Ephedrine

and Mephedrone was found in the samples. The words "for exact

identity" mean that the samples may be forwarded to know what

exactly the sample or material is.

iv) Thus, a comprehensive reading of the report shows that the

samples were tested and Ephedrine and Mephedrone were not found

in the said samples.

KL,J Crl.P.No.1745 of 2021

v) The e-mail dated 29.09.2021 addressed by CRCL, Chennai

states that only quantitative analysis was not carried out for want of

reference standard. This cannot be stretched to say that no facility is

there to identify the sample.

vi) The e-mail dated 29.01.2021 is vague and does not explain

the situation at hand or make any sense to decide the application.

vii) Samples were expended and returned by CRCL, Chennai,

therefore, interference with the samples cannot be ruled out.

viii) Therefore, the Court dismissed the petition in Crl. M.P.

No. 717 of 2021 vide order dated 09.02.2021.

4. CONTENTIONS OF LEARNED COUNSEL FOR THE PETITIONER:

i) CRCL, Chennai categorically stated that quantitative analysis

of the sample is not carried out for want of facility. Therefore, the

samples were not tested as required under the Test Memos submitted

by the Petitioner. CRCL, Chennai in an e-mail dated 29.09.2021

confirmed by stating that it would not be possible to analyze the

samples for want of reference standard. It is clear that CRCL, Chennai

could not conduct the required tests and recommended the same to be

tested at CFSL, Hyderabad.

ii) Even if it is assumed that CRCL, Chennai had done

qualitative testing, quantitative testing still needs to be completed at

CFSL, Hyderabad. Therefore, the samples need to be sent to CFSL,

Hyderabad.

KL,J Crl.P.No.1745 of 2021

iii) The statement in the Test Report of CRCL, Chennai that the

samples may be sent to CFSL, Hyderabad for exact identification is

not an unsolicited advice but is a General Observation of the Chemist

required to be given under 3(c) of Section - II of the Test Memo

signed by the Magistrate.

iv) Testing of samples remains in-conclusive for want of better

facilities for testing. Therefore, testing by CFSL, Hyderabad would

not amount to re-testing.

v) The Petitioner mentioned the samples to be tested as

"appearing to be"/"alleged drug" as Ephedrine/Mephedrone both in

test memos and covering letter to CRCL, Chennai.

vi) There is every probability that the alleged substance could

have been intentionally claimed as other substance by the accused or

the substance could have been either in the process of graduating to

the alleged substance or is in the advanced stage of the alleged

substance. The samples should be tested to find out the exact identity.

If by any chance the sample is not a contraband, there would be no

change in circumstances. The trial Court decided the case based on an

inconclusive report not considering the complete testing of the

samples for exact identity.

vii) The decision in Thana Singh (supra) was mis-interpreted

and exceptional circumstances exist to send the samples to CFSL,

Hyderabad for exact identification. Re-testing is not allowed when

KL,J Crl.P.No.1745 of 2021

necessary tests are completed by the concerned laboratories but in the

present case, the necessary tests are not completed.

viii) The observation of the trial Court that a comprehensive

reading of the test report explains that samples were tested and

Ephedrine and Mephedrone was not found is incorrect. A simple

reading of the report shows that CRCL, Chennai could not verify the

presence of Ephedrine and Mephedrone. If Ephedrine and

Mephedrone was not found, they would have clearly stated that the

samples did not test positive for Ephedrine and Mephedrone.

ix) The view taken by the trial Court that interference with the

samples cannot be ruled out is without any basis. The remaining

samples were returned by CRCL, Chennai in sealed covers duly

affixing lac seal containing their inscription and a facsimile is made

available to the recipient of samples in the covering letter in a manner

similar to that which was adopted while testing the samples. Thus, the

recipient lab will verify the seals with the facsimile and will open the

seal only after ensuring that the seals are intact.

x) Samples were drawn from Respondent No.1 who is a

habitual offender and he poses a serious threat to the society.

xi) The trial Court ought to have considered and appreciated the

contentions raised by the Petitioner.

5. CONTENTIONS OF LEARNED COUNSEL FOR THE RESPONDENT/ACCUSED NOS. 1 TO 3:

i) The trial Court was right in dismissing the petition in

Crl.M.P.No.717 of 2020 vide order dated 09.02.2021.

KL,J Crl.P.No.1745 of 2021

ii) The opening of the samples and the change in weight in all

the samples reveals that all the samples were tested.

iii) The test report of CRCL, Chennai reveals that no Ephedrine

and Mephedrone was found.

iv) CRCL, Chennai would themselves have specifically

informed DRI, Hyderabad if they did not have the requisite facilities.

v) If CRCL, Chennai did not have the facilities, they should not

have contaminated the sample. Once the samples have been opened, it

cannot be confirmed if they have been contaminated or not. The

CRCL, Chennai should not have kept the samples with them for a

period of 20 days i.e., from 21.10.2020 to 11.11.2020. Therefore,

CRCL, Chennai have tested the samples.

vi) The Petitioners cannot seek re-testing on the ground that

quantitative analysis of the samples was not carried out by CRCL,

Chennai for lack of facilities. For the identification of presence of the

substance, no quantitative analysis is required. Quantitative analysis

has never been done on drug samples as only the presence of the drug

would suffice for prosecution.

vii) The Petitioner cannot rely upon the e-mail dated

29.01.2021 addressed by CRCL, Chennai as no analysis of samples is

ever required or insisted in NDPS cases. The sample is always tested

for answering the presence of suspected Narcotic and psychotropic

substance.

KL,J Crl.P.No.1745 of 2021

viii) In Thana Singh (supra), the Apex Court has clearly held

that only in exceptional circumstances re-testing is to be permitted. In

the present case, no such exceptional circumstances exist.

ix) With the said submissions, he sought to dismiss the

Criminal Petition. .

FINDINGS OF THE COURT

6. The above stated rival submissions would reveal that,

according to the Petitioner, testing of 8 samples done by CRCL,

Chennai is incomplete for lack of facilities and the same needs to be

sent to CFSL, Hyderabad for exact identification of the substance, it

does not amount to re-testing and it is not contrary to the principles

laid down by the Hon'ble Apex Court in Thana Singh (supra).

7. According to the Respondents/accused Nos.1 to 3, CRCL,

Chennai had already tested the samples and in its report, it is

specifically mentioned that the presence of Ephedrine and

Mephedrone could not be verified. Therefore, sending the remnant

samples to CFSL, Hyderabad, as sought by the Petitioner, will amount

to re-testing which is not permissible as per the law laid down in

Thana Singh (supra).

8. In view of the above submissions, the questions that fall for

consideration before this Court are:-

a) Whether CRCL, Chennai, had tested the eight samples?

and

KL,J Crl.P.No.1745 of 2021

b) Whether sending the samples to CFSL, Hyderabad amounts to re-testing, if so, whether circumstances exist to allow re-testing?

9. There is no dispute that samples were sent to CRCL, Chennai

and it has submitted its report dated 11.11.2020 wherein it is

specifically mentioned as follows:-

"Each of the eighth samples is in the form of off- white powder. Presence of Ephedrine and Mephedrone could not be verified. For exact identity, the samples may be forwarded to Central Forensic Science Laboratory, Hyderabad."

10. Vide e-mail, dated 29.01.2021, the Petitioner herein

requested the CRCL, Chennai, to inform whether the testing/

chemical analysis of Mephedrine, is available at Laboratories,

Chennai. In case, the same is not available, it was requested to

suggest/recommend a Laboratory with requisite facilities for

forwarding the samples for chemical analysis since the said samples

were suspected to be Mephedrone.

11. Through e-mail dated 29.01.2021 the CRCL, Chennai,

informed that it would not be possible to analyze the said sample,

suspected to be Mephedrone, for want of Reference Standard, in that

laboratory and it may be forwarded to CFSL, Hyderabad for analysis.

12. The above stated facts would reveal that the CRCL,

Chennai had tested the 8 samples in question. The said samples were

in the form of an off-white powder. In the report, dated 11.11.2020,

it was specifically mentioned the presence of the Ephedrine and

Mephedrone could not be verified, for exact identity, the samples

KL,J Crl.P.No.1745 of 2021

may be forwarded to CFSL, Hyderabad. Therefore, CRCL, Chennai,

could not have reached such conclusion without testing the samples.

The contention of the petitioner that samples were not tested cannot

be accepted.

13. Then next question that arise for consideration before this

Court is whether sending the 8 samples to CFSL, Hyderabad amounts

to re-testing, if so, whether any exceptional circumstances exist

which warrant the sending of the samples for re-testing as held by the

Hon'ble Apex Court in Thana Singh(supra). The Apex Court therein

had an occasion to deal with the issue of re-testing under the NDPS

Act.

14. Paragraph Nos.24 to 27 are relevant for the purpose of the

present case and therefore, the same are extracted below:-

24. The NDPS Act itself does not permit re-sampling or re-testing of samples. Yet, there has been a trend to the contrary; NDPS Courts have been consistently obliging to applications for re- testing and re-sampling. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. NDPS Courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [see State of Kerala v. Deepak P. Shah [2001 Cri LJ 2690 (Ker)] and Nihal Khan v. State (Govt. of NCT of Delhi) [2007 Cri LJ 2074 (Del)] ] or perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While re-testing may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, re-testing and re- sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reverence must also be given to the wisdom of the legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The legislature, unlike for the NDPS Act, enacted Section 25(4) of the Drugs and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re-testing.

KL,J Crl.P.No.1745 of 2021

25. Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the above stated factors. Further, in the light of Section 52-A of the NDPS Act, which permits swift disposal of some hazardous substances, the time-frame within which any application for re-testing may be permitted ought to be strictly defined.

26. Section 52-A of the NDPS Act reads as follows:

"52-A.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 the Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any Narcotic drug or psychotropic substance has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such Narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the Narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the Narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of Narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."

KL,J Crl.P.No.1745 of 2021

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.

15. Issue of re-testing was also considered by the Delhi High

Court in Narcotics Control Bureau v. Athar Pervez2. In the said case,

the samples were sent twice for re-testing. In the test report prepared

by CRCL, it was stated as follows:-

"The sample is in the form of off white crystalline powder. On the basis of chemical and chromatographic examinations, the presence of Methaquolone could not be ascertained in the sample under reference. However, for want of characterization facilities, exact identification of sample could not be ascertained, therefore, to rule out possible presence of any Narcotic drug and psychotropic substance in the sample, it may be forwarded to CFSL, Hyderabad for its characterization."

The Delhi High Court referring to the facts of the said case including

the above said report and also the principle laid down by the Apex

Court in Thana Singh (supra) held as follows:-

8. The quest of criminal process - be it investigative or judicial - is to search for the truth. It was with that objective that the special judge, noting the discrepancies - which were more in the nature of deficiencies in the earlier reports of CRCL and CFSL-had granted the request of the defence by order dated 11.09.2014 for the fresh samples to be drawn and sent to CRCL. The report of CRCL dated

2018 SCC OnLine Del 12728

KL,J Crl.P.No.1745 of 2021

28.11.2014 is again inchoate. While expressing its inability to give a definite opinion "for want of characterization facilities" it suggested the samples to be sent to CFSL, Hyderabad. Undoubtedly, there cannot be indefinite rounds of testing or retesting. The matter has to reach finality some day. But, at the same time, neither side can be allowed to take undue advantage of the confusion that prevails as to the nature or contents of the substance in the face of aforementioned three reports, two of CRCL and one of CFSL.

9. The peculiar facts and circumstances that are presented before the court in the case at hand deserve to be treated as the "extremely exceptional circumstances" in which re- sampling/re-testing can be directed even in terms of the decision of the Supreme Court in Thana Singh (supra). At the cost of repetition, it may be added that defence was not satisfied with the earlier report of CFSL. It is the defence which had sought fresh samples to be drawn and sent to CRCL. If CRCL is unable to give a definitive opinion, the quest for clear opinion as to the nature and contents of the substance which was revived for scrutiny by the defence itself, will have to be taken to the logical end and towards this end, the Special Judge should have allowed the request of the NCB for fresh samples to be drawn and sent, if not to CFSL at Hyderabad, to some other government laboratory where requisite facilities may be available.

16. In Subair v. State of Kerala3, the Kerala High Court,

discussing the decision in Thana Singh (supra), explained when re-

testing can be allowed. The Court therein held as follows:

17. The N.D.P.S. Act does not incorporate within it any specific provision directing retesting of the contraband. Provisions indicative of barring exercise of such authority are also not there. Therefore, N.D.P.S. Courts have been frequently issuing orders to applicants approaching before it seeking the relief of retesting. But, it is not

2015 SCC OnLine Ker 36482.

KL,J Crl.P.No.1745 of 2021

obligatory for the N.D.P.S. Courts to issue orders in favour of the applicant without looking into the bona fides of the applicant, demanding the relief. It is only discretionary for the court and while exercising the discretion, the court has to see whether it is a tactics of the applicant to protract the trial. The court has to be convinced whether retesting is sought to secure the defence, when the applicant is the accused, or to prove its case when the applicant is the prosecution. The Apex Court as well as this Court had occasions to deal with situations of the nature and have already shown green signal, irrespective of the fact that the applications are put forth either by the accused or by the prosecution. What the Apex Court signals is to avoid filing applications after significant elapse of time at advanced stages of trials. Therefore, when an application is filed seeking retesting, it is obligatory for the Court to see whether it was filed as a delay tactics or whether it is expedient in the interest of justice to afford fair trial to the accused or that would help the prosecution to establish its case. Or in other words, the court must look from the point of view of the accused or the prosecution, whoever be the applicant before it, and to arrive at the conclusion from the backdrop of each case, whether retesting is justified or not or whether declining the same would perpetrate injustice. Some of the situations given in illustration wherein the court is justified in granting the reliefs are:--

(1) to ascertain the exact content of the Narcotic and psychotropic substance contained in the contraband in a case where the report of first analysis is silent on that aspect;

(2) to clarify doubts regarding tampering with the case property and samples;

(3) to see whether the sample sent for testing did not match the case property (when there is marked difference in colour or other appearance to the naked eye) (The situations hereinabove mentioned are not exhaustive, but only some illustrations)

18. Therefore, the criteria for the court while considering applications seeking retesting is to be convinced of the ends of justice meant to be

KL,J Crl.P.No.1745 of 2021

secured and the truth to be arrived at and protected.

17. According to the above said judgments, while considering

the applications for re-testing, the Court has to consider and satisfy

itself of the following:-

i) Re-testing is to be allowed to arrive at the truth and meet the

ends of justice.

ii) Re-testing is not to be allowed after a significant lapse of

time and during advanced stages of trial.

iii) Re-testing should not be entertained if it is filed as a delay

tactic.

iv) Re-testing may be allowed if it is expedient and in the

interest of justice and in furtherance of fair trial.

v) The Court considering the application for re-testing of

samples should give its reasons.

18) The objective of every investigation is the search of truth.

The investigation and trial cannot proceed based on inconclusive and

unclear test reports. Neither party can take advantage of the non-

identification of the samples. Therefore, when the identity of the

samples cannot be ascertained or verified, it is a fit case to send the

samples for re-testing to any laboratory that has all the requisite

facilities.

19. In view of the above said settled legal position, coming to

the facts of the case, as discussed supra, though the CRCL, Chennai,

conducted test of 8 samples sent by the Petitioner, in its report dated

KL,J Crl.P.No.1745 of 2021

11.11.2020, it is specifically mentioned that the presence of Ephedrine

and Mephedrone could not be verified. For exact identity, the samples

may be forwarded to CFSL, Hyderabad and the same was confirmed

by way of e-mail, dated 29.01.2021.

20. Vide letter dated 03.12.2020, the CFSL, Hyderabad

intimated to the Petitioner as follows:-

"In this regard, this laboratory is ready to accept the samples for analysis purpose if the sample sent to us directly. In this laboratory re-testing of analysis could not be carried out due to, 'Supreme Court of India vide its decision in Crl.Appeal No.1640 of 2010 in the matter of Thana Singh Vs.CBN on 23.01.2013 re- testing of exhibits can only be undertaken when the cases are referred to by the Hon'ble Courts of law."

Therefore, the Petitioner herein had filed the present petition seeking a

direction to the CFSL, Hyderabad to take unexpended samples taken

on 20.10.2020 as received from the CRCL, Chennai, for chemical

examination and report in the said crime. Thus, the CRCL, Chennai

had conducted testing of 8 samples and the result of the test was

inconclusive as the CRCL, Chennai could not verify the presence of

the Ephedrine and Mephedrone. The finding of the trial Court that

presence of Ephedrine and Mephedrone could not be verified means

that no Ephedrine and Mephedrone was found is incorrect and it is not

sustainable.

21. It is relevant to note that according to the Black's Law

Dictionary, 9th Edition, the word 'verify' has the following meaning:

'verify, vb. 1. To prove to be true; to confirm or establish the truth or truthfulness of; to authenticate.

KL,J Crl.P.No.1745 of 2021

2. To confirm or substantiate by oath or affidavit; to swear to the truth of.'

Thus, the term 'verify' means to confirm or establish the truth or truthfulness.

22. The CRCL, Chennai, could not verify the presence of

Ephedrine and Mephedrone, which means that they could not confirm

the presence of Ephedrine and Mephedrone. The same cannot be

stretched to mean that the CRCL, Chennai has conclusively stated that

the Ephedrine and Mephedrone was not found. If no Ephedrine and

Mephedrone was found, the test report would have stated that the

samples tested negative for Ephedrine and Mephedrone or the samples

did not test positive. Whereas, in the report, dated 11.11.2020, the

CRCL, Chennai has stated that the samples may be forwarded to

CFSL, Hyderabad, for exact identity. Therefore, the report was

inconclusive. The exact identification of the samples is not yet

confirmed. It was only suspected/alleged that the seized drugs were

Ephedrine and Mephedrone. The sample may contain other Narcotic

and psychotropic substances. Even if, no Ephedrine and Mephedrone

is found, the possibility of existence of other Narcotic substances

cannot be ruled out. Therefore, when the identity of the samples cannot

be ascertained or verified, it is a fit case to send the samples for re-

testing to any laboratory that has all the requisite facilities.

23. It is relevant to note that the Court below has observed that

the interference with the samples cannot be ruled out. The samples

were collected by the authorized officer of the DRI, Hyderabad and the

KL,J Crl.P.No.1745 of 2021

same were sent to CFSL, Hyderabad without seeking leave of the

Court. This raises justifiable concerns about contamination of the

samples. Therefore, to meet ends of justice and keeping the right to fair

trial in mind, the second set of samples drawn on 20.10.2020 in

presence of the VI Addl. Chief Metropolitan Magistrate deposited with

the Custodian are to be tested.

24. The respondent/accused Nos.1 to 3 have contended that the

Petitioner has not filed an application within the 15 days from the date

of receipts of test report and therefore, the same is contrary to the

principle laid down by the Apex Court in Thana Singh (Supra). The

Court below, on consideration of the entire facts, gave a finding that

the Petitioner/complainant had received the test repot on 03.12.2020

and the above said application i.e. Crl.M.P.No.717 of 2020 filed under

Section 52(A) of the NDPS Act, on 10.12.2020. Therefore, the

application was filed within the 15 days. Thus, the Court below has

given a specific finding on the said aspect. The respondents/accused

Nos.1 to 3 have not challenged the said findings. Therefore, they

cannot now contend that the Petitioner herein has not filed the present

application within 15 days from the date of receipt of the report. The

said contentions are not sustainable.

25. In view of the above said discussion, the Court below has

erred in dismissing the Petition vide Crl.M.P.No.717 of 2020 vide

order dated 09.02.2021 which is liable to be set aside. It is a fit case to

send the samples for re-testing to CFSL, Hyderabad.

KL,J Crl.P.No.1745 of 2021

26. In the result, this Criminal Petition is allowed. The

impugned order dated 09.02.2021 passed in Crl.M.P.No.717 of 2020 in

F.No.DRI/HZU/48E/ENQ/(INT-61)/2020 by the Metropolitan

Sessions Judge, Nampally, Hyderabad, is set aside. The CFSL,

Hyderabad is directed to test the second set of samples drawn on

20.10.2020 in the presence of the VI Addl. Chief Metropolitan

Magistrate deposited with the Custodian and submit report, in the

above said crime.

27. As a sequel, the miscellaneous petitions, if any, pending in

this Criminal Petition shall stand closed.

_________________ K. LAKSHMAN, J Date:25.10.2021

Note: L.R.copy to be marked.

b/o.vvr.