Madhya Pradesh High Court
Vijay vs The State Of Madhya Pradesh on 3 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:35408
1 CRR-5123-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL REVISION No. 5123 of 2025
VIJAY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Nitin Parashar - Advocate for the petitioner [P-1].
Shri Rajendra Singh Suryavanshi -GA appearing on behalf of
Advocate General[r-1].
Reserved on 11.11.2025
Pronounced on 03.12.2025
------------------------------------------------------------------------------------------
ORDER
This criminal revision under section 438 r/w section 442 of the BNSS, 2023 is preferred being aggrieved by the order dated 09.10.2025 (Annexure A/1) by Special Judge (NDPS Act, 1985), Indore in connection with crime no.124/2025 under section 22 r/w section 8 & 29 of the NDPS Act, 1985, whereby the application of prosecution for retesting of samples of seized material claimed to be MD drug viz. mephedrone has been permitted from Central Forensic Science Laboratory, Hydrabad.
2. Necessary facts for disposal of this criminal revision are that on 26.02.2025 two persons viz. Vijay s/o Ghanshyam Patidar (revision petitioner), resident of Khajuriya Sarang, police station Bhavgarh, district Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 04-12-2025 19:52:00 NEUTRAL CITATION NO. 2025:MPHC-IND:35408 2 CRR-5123-2025 Mandsaur and Shahnawaz were apprehended by police officials of police station Tejaji Nagar, Indore and some powder was recovered from the left pocket of lower worn by Shahnawaz that was wrapped in a polythene of pink colour and that powder was suspected to be mephedrone drug on physical examination by smell and experience in dealing with contraband cases. The police officials confirmed that the seized material is mephedrone drug. In furtherance of the proceedings, the weigh machine was procured and the material was weighed as 198 gm. The seized material was sealed with the seal of police station Tejaji Nagar and the Panchnama was prepared. The approximate cost of the drug was estimated to be Rs.2 crore. A TVS motorcycle was also seized and a crime number was registered as crime no.124/2025 at police station Tejaji Nagar, district Indore (Urban) against the present revision petitioner and Shahnawaz. During investigation, the complicity of Lakhan Gupta s/o Parmanand Gupta, Police Constable by profession, badge no.3051 and posted at police station Azad Nagar, district Indore, M.P and Raja Khan @ Raja Babu was also found. The Constable Lakhan Gupta was extending protection in the offence of carrying the mephedrone drug in Indore and for that he was receiving bounty. The proceedings under section 52A of the NDPS Act, 1985 was completed and the sample A/1 was forwarded to Central Forensic Science Laboratory, Bhopal and the Central Forensic Science Laboratory, Bhopal reported that in sample Article A/1 mephedrone and other narcotic drugs and psychotropic substances have not been detected. However, potassium nitrate has been detected. The police station Tejaji Nagar, Indore approached the Court of Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 04-12-2025 19:52:00 NEUTRAL CITATION NO. 2025:MPHC-IND:35408 3 CRR-5123-2025 Special Judge (NDPS Act, 1985), Indore for permission of retesting of sample Article A/2 from the Central Forensic Science Laboratory, Hydrabad and the trial court granted permission for retesting of the sample Article A/2.
3. Challenging the order of permission of retesting of sample A/2, this criminal revision has been preferred on the ground that the permission for retesting has been granted in violation of the principles laid down in Thana Singh vs. Central Bureau of Narcotics - (2013) 2 SCC 590 and Sadaram vs. State of Rajasthan - 2025 RJ-JD 16557. It is further agitated that Central Forensic Science Laboratory, Bhopal and Central Forensic Science Laboratory, Hydrabad have equal status because both are Central Forensic Science Laboratory. When report has been procured from the Central Forensic Science Laboratory, Bhopal, then it is not permissible that the sample be retested by the Central Forensic Science Laboratory, Hydrabad. It was further agitated that prayer for retesting can be considered only when the prayer is made within 15 days. In this case, the prayer for retesting is beyond the time line of 15 days. The permission for retesting can be granted only in exceptional cases and those exceptional cases may be when the sample has been damaged, has been deteriorated, has been accidently wasted or consumed in the Forensic Science Laboratory. In this case such contingency has not been brought on record. Accordingly, prayed for setting aside the order dated 09.10.2025 and sought discharge of the revision petitioner from the offence in crime no.124/2025 registered at police station Tejaji Nagar, Indore.
5. Counsel for the State has opposed the revision petition.
Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 04-12-2025 19:52:00NEUTRAL CITATION NO. 2025:MPHC-IND:35408 4 CRR-5123-2025
6. Heard. Perused the record.
7. Before proceeding further, this court is reproducing para-23 & 24 of Thana Singh (supra) as under:
23. 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 vs. Deepak. P. Shah[2001 Cr.L.J 2690]; Nihal Khan vs. The State (Govt. of NCT Delhi) [2007 Cr.L.J 2074]] or perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics, 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.
24. Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the above- stated factors. Further, in light of Section 52A 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. Section 52A 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.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer- in- charge of the nearest Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 04-12-2025 19:52:00 NEUTRAL CITATION NO. 2025:MPHC-IND:35408 5 CRR-5123-2025 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."
8. Now come to the facts of this case. The application of the State and the impugned order mentioned that the testing report of Central Forensic Science Laboratory, Bhopal was received by police station Tejaji Nagar, Indore on 24.09.2025 and the application for retesting was preferred 06.10.2025 and the impugned order was passed on 09.10.2025. Though the examination report/opinion bears the date 27.06.2025 but correspondence from Deputy Commissioner of Police, Zone-I, Indore dated 01.09.2025 with Director, Central Forensic Science Laboratory, Bhopal is to the effect that they have not received the report regarding samples that were deposited on Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 04-12-2025 19:52:00 NEUTRAL CITATION NO. 2025:MPHC-IND:35408 6 CRR-5123-2025 06.04.2025 and the endorsement of the Director, CFSL is to the effect that the same was provided to the Police Station, Crime Branch, Constable No.4504 dated 28.08.2025 and thereafter the report available with the diary is to the effect that the examination report was received at police station Tejaji Nagar, Indore at inward entry no.60 of 24.09.2025. Therefore, it is to be presumed prima facie that the report was received by the police station Tejaji Nagar, Indore on 24.09.2025 and the application for retesting was preferred on 06.10.2025 which is within 15 days from the date of report from the Central Forensic Science Laboratory, Bhopal.
9. Since exceptionality of circumstances is concerned, record discloses that proceedings under section 52A of the NDPS Act, 1985 was conducted and samples were prepared.
10. As per the allegation of the revision petitioner, the whole case has been cooked up. It is stated that Vijay Patidar (revision petitioner) has been taken into custody on the reference of one Golu, resident of Mandsaur and thereafter Golu was released but Vijay Patidar has been apprehended on the way and Shahnawaz was apprehended on the complaint of his wife for a trifling matter of husband and wife. This defence needs to be unfolded during trial, therefore, at this stage, no observation can be made regarding this.
11. Possibility cannot be ruled out that after taking the sample in respect of MD drug and sent to the Central Forensic Science Laboratory and during transit or at the laboratory some mischief might has been caused by some one, either at the instance of the accused persons or as part of Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 04-12-2025 19:52:00 NEUTRAL CITATION NO. 2025:MPHC-IND:35408 7 CRR-5123-2025 departmental rivalry or other extraneous consideration. When one accused Lakhan Gupta is a Police Official who is found involved in this case and against whom the allegation is that he was extending protection regarding sale of the contraband in locality, then this suspicion becomes stronger. Besides that, it is highly improbable that two accused persons one from Mandsaur and another from Indore were carrying 198 gms. of potassium nitrate which is used as a fertilizer, a key ingredient in fire works and gun powder, a good preservative for meats and cheezes and in tooth paste for sensitive tooth. If retesting is done, then no prejudice would be caused and the fact would come with clarity. Such type of situation was considered by the High Court of M.P in the case of State of M.P vs. Sonam and others - ILR 2024 MP *18: 2023 MPHC-GWL:18003 and the prayer of retesting was permitted.
12. In the light of above discussion, the fact of this case comes in the exceptional circumstances wherein the retesting can be permitted in the light of Thana Singh (supra). Hence, this criminal revision has no substance and is hereby dismissed.
(GAJENDRA SINGH) JUDGE hk/ Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 04-12-2025 19:52:00