Criminal Appeal No.2149 of 2014

26th September, 2014

Petitioner Counsel: Mr. H.E. MOOMAN, Mr. SHERALI S. KHAN, Mr. SATBIR S. PILLANIA, for Mr. R.C. GUBRELE
Respondent Counsel: Mr. TUSHAR MEHTA, ASG Ms. RANJANA NARAYAN, Ms. MADHURIMA TATIA, Mr. B. KRISHNA PRASAD

Cases Cited:
Thana Singh Vs. Central Bureau of Narcotics, (2013) 2 SCC 590 [Para 4,6]

JUDGMENT

J. S. KHEHAR, J. :- Leave granted.

It is not a matter of dispute that the seizure admittedly took place on 17.02.2013. It was alleged that the seized material was heroin. Two samples of the seized material were sent for testing. The first one to the Central Forensic Science Laboratory, Hyderabad, and the other to the Central Forensic Science Laboratory, Mumbai.

2. The report of the Central Forensic Science Laboratory, Hyderabad, was to the following effect:

"The Exhibits were analyzed by Colour Test, TLC and Gas Chromatography - Mass Spectroscopy (GC-MS) methods. Based upon the above methods the results are given below.

Heroin has not been detected in the Exhibit S-II. However, Paracetamol and Fervunulin detected in Exhibit S-II." (emphasis is ours)

The result of the Forensic Science Laboratory, Mumbai was as under:

"The sample is in the form of light brown colour powder. It is composed of Nitrogen bearing Organic Compound. For exact identification of the sample u/r more instrumental analysis like I.R. Spectroscopy is required, which is not available here at present. Therefore, sample may be forwarded to C.F.S.L. Hyderabad. Remnant Sample is being returned in a sealed envelope. The facsimile of seal affixed on sealed envelope is given below." (emphasis is ours)

3. Premised on the fact, that the Central Forensic Science Laboratory, Mumbai was not fully equipped, to chemically test the sample sent to it for examination, the respondents before this Court moved an application, for getting a third sample tested from an approved Forensic Science Laboratory. The instant prayer made by the respondents was acceded to by Special Judge, N.D.P.S., Thane, vide an order dated 30.4.2013. A challenge raised to the above order passed by the trial Court, was rejected by the High Court, through the impugned order dated 19.07.2013.

4. During the course of hearing, learned counsel for the appellant assailed the determination of the courts below, in having the third sample tested. In this behalf, reliance was placed on the decision rendered by this Court in Thana Singh v. Central Bureau of Narcotics (2013) 2 SCC 590. Our pointed attention was invited to the following observations recorded in the above judgment:

"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." (emphasis is ours)

5. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. It is no doubt true that the Forensic Science Laboratory, Mumbai, in its report dated 7.3.2013 had clearly opined, that it did not have sufficient infrastructure to test the sample provided to it by the respondents, and as such, required the respondents to have the same tested by another laboratory. What however, cannot be overlooked is, that a separate sample which was sent to the Forensic Science Laboratory, Hyderabad, which clearly recorded a conclusion, that the sample contained Paracetamol and Fervunulin. The instant determination by the Forensic Science Laboratory, Hyderabad is clear, categoric and specific. The same cannot be overlooked under any circumstances.

6. It is in the above factual scenario, that we have to determine whether a third sample could be sent for testing, before some other Forensic Science Laboratory, in terms of the observations made by this Court in Thana Singh's case (supra). We are of the view, that the instant case is not a case which presents a situation of extreme exceptional circumstances, narrated in the above judgment. At no point in time, can the report submitted by the Forensic Science Laboratory, Hyderabad be ignored. Moreover, learned counsel for the appellant, during the course of hearing contended, that even the report of the Forensic Science Laboratory, Mumbai, clearly establishes, that the sample sent to it did not contain heroin. In this behalf it was submitted, that the Mumbai laboratory had returned a clear finding, that the sample tested by it was a "Nitrogen based organic compound". It was submitted, that heroin is not a Nitrogen based compound, and as such, even the second sample, according to the test report, did not contain heroin. The above mentioned factual position (in respect of the report of the Mumbai laboratory), was not disputed by the learned counsel for the respondents. In the above view of the matter, no fruitful purpose will be served by sending another sample to any third laboratory.

7. For the reasons recorded hereinabove, we are satisfied that the order dated 30.4. 2013 passed by the Special Judge, N.D.P.S., Thane, and the impugned order passed by the High Court dated 19.07.2013 deserve to be set aside. The same are accordingly hereby set aside.

8. The instant appeal is allowed in the aforesaid terms.

Appeal allowed.