Gujarat High Court
Directorate Of Revenue Intelligence vs Abhijit Prabhakar Konduskar & on 8 May, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1024/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1024 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DIRECTORATE OF REVENUE INTELLIGENCE....Applicant(s)
Versus
ABHIJIT PRABHAKAR KONDUSKAR & 1....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Applicant(s) No. 1
MR CHAITANYA S JOSHI, ADVOCATE for the Respondent(s) No. 1
MR SUDHAKAR B JOSHI, ADVOCATE for the Respondent(s) No. 1
MR NJ SHAH, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/05/2015
CAV JUDGMENT
Page 1 of 11
R/SCR.A/1024/2015 CAV JUDGMENT
RULE returnable forthwith. Mr.N.J.Shah, the learned APP waives service of notice of rule for and on behalf of the respondent no.2 - State of Gujarat. Mr.Chaitanya Joshi, the learned advocate waives service of notice of rule for and on behalf of the respondent no.1 - original accused.
By this application under Article 227 of the Constitution of India, the applicant - Directorate of Revenue Intelligence through its Deputy Director, has prayed for the following reliefs :
"(A) Your Lordships be pleased to admit and allow present Special Criminal Application;
(B) Your Lordships may be pleased to quash and set aside the order dated 21.01.2015 passed by learned Additional Sessions Court, Court No.19, Ahmedabad, in Special (NDPS) Case No.5 of 2012 and further be pleased to dismiss the said application in the interest of justice;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the order dated 21.01.2015 passed by learned Additional Sessions Judge, Court No.19, Ahmedabad, in Special (NDPS) Case No.5 of 2012;
(D) Such other and further relief or relieves as may be deemed fit, just and proper, in the facts and circumstances of the case."
The facts giving rise to this application are as under :
The respondent no.1 - original accused is charged with the offence punishable under Sections 22, 23, 24, 25, 27A, 28, 29 30 and 38 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). The NDPS Sessions Case No.5 of 2012 is in progress in the Court of the Page 2 of 11 R/SCR.A/1024/2015 CAV JUDGMENT learned Additional Sessions Judge, Court No.19, City Sessions Courts, Ahmedabad.
It is the case of the Department that the accused was found in possession of 431 kgs. of methylpheny. The samples were drawn by the officers of the Department and the same were forwarded to the Directorate of Forensic Science, Gandhinagar, for the purpose of testing. The FSL, Gandhinagar, confirmed the samples to be methamphetamine hydrochloride.
It appears that after the receipt of the report of the Directorate of Forensic Science, Gandhinagar, the accused applied for retesting before the trial Court and such request of the accused was rejected. Being dissatisfied, the accused preferred Special Criminal Application No.1353 of 2012 before this Court challenging the order passed by the trial Court rejecting the request of the accused for retesting of the contraband.
The learned Single Judge of this Court, vide order dated 11th May 2012, rejected the Special Criminal Application referred to above and confirmed the order passed by the trial Court. Being dissatisfied with the order passed by the learned Single Judge of this Court dated 11th May 2012, the accused challenged the same before the Supreme Court by filing Criminal Appeal No.1138 of 2012.
The Supreme Court passed the following order :
"The appellant has challenged the order dated 11.05.2012 whereby the High Court affirmed the order passed by the Special Judge appointed under the Narcotic Drugs and Psychotropic Substances Act, Page 3 of 11 R/SCR.A/1024/2015 CAV JUDGMENT 1985 (in short 'the NDPS Act'). The Special Judge rejected an application filed by the appellant for re-testing the samples seized from him on or about 03.12.2011.
The application for re-testing the seized goods was made by the appellant during the course of investigations and the High Court was of the opinion that since the investigations were being conducted fairly, there was no reason to send the seized goods for re-testing.
We are not inclined to comment on the correctness or otherwise of the order passed by the High Court in this regard. The reason for this is that we have been told that the trial had already commenced and the examination of PW-1 is under way.
Reason:2
We have gone through the provisions of Sections 79 and 80 of the NDPS Act and find that it incorporates the provisions of the Customs Act, 1962 as well as the Drugs and Cosmetics Act, 1940. In terms of Section 25(3) of the Drugs and Cosmetics Act, 1940, a person from whom goods which are apparently prohibited are seized and tested can move an application before the concerned Court within a period of 28 days to have the goods re-
tested.
This opportunity to make an application for re-testing was not available to the appellant particularly since the report of the Directorate of Forensic Science, Gandhinagar, Gujarat was supplied to the appellant only in November, 2012 by which time the judgment of the High Court had already been delivered on 11.05.2012.
We do appreciate that there is a difference between re- testing of the goods at the stage of investigation of the offence and at the stage of trial. It is possible that the appellant could have moved an application within 28 days of November, 2012 to have the goods re-tested but it is submitted by learned counsel for the appellant that that course would have been futile in view of the judgment delivered by the High Court on 11.05.2012 which specifically held that the appellant Page 4 of 11 R/SCR.A/1024/2015 CAV JUDGMENT was not entitled to have the goods re-tested.
Under the circumstances, without pronouncing on the correctness or otherwise of the order passed by the High Court, we grant liberty to the appellant to move an application within 28 days from today before the trial Judge to have the seized goods re-tested.
3The trial Judge will take a decision on the application at the earliest possible without delaying the trial and without being influenced by the order passed by the High Court which is impugned before us.
With the above observations, the appeal is disposed of."
In light of the order of the Supreme Court referred to above, the accused once again applied for retesting of the contraband before the trial Court. The trial Court allowed the application Exh.158 observing thus :
"13. Thus, it is evident from the said observations that the Hon'ble Supreme Court has held that the provisions of Section 79 and 80 of the NDPS Act incorporates the provisions of Drugs Act and that in terms of Section 25(3) of the Drugs Act, a person from whom goods which are apparently prohibited are seized and tested can move an application before the concerned court within a period of 28 days to have the goods re-tested. However, the said opportunity was not available to the applicant-accused particularly since the report of the DFS, Gandhinagar was supplied to the applicant-accused only in November, 2012 by which time the judgment of Hon'ble High Court has already been delivered on 11.05.2012.
14. It is trite that Sub-Section 4 of the Drugs Act confers the right of re-testing unless the samples was tested by the Central Forensic Laboratory and it is not the say much less material on record suggesting the fact that the samples in questions were tested by the Central Forensic Laboratory. In such a fact situation the contention coming from the DRI to the effect that occasion to re-Page 5 of 11 R/SCR.A/1024/2015 CAV JUDGMENT
testing of the samples by the Central Forensic Science laboratory CFSL arises only in a case where the samples were taken by the Drugs Inspector and were examined by the Public Analytics, but such is not the facts situation in the case on hand, because here the samples were taken by the officer of the DRI and the same were tested by the DFSL, Gandhinagar, can not be accepted, particularly in view of the above said observation made by the Hon'ble Supreme Court in the said Criminal Appeal No. 1138/2012.
15. Coming to the question as to whether the applicant- accused has succeeded in showing his extremely exceptional case to grant the prayer for re-testing. My obvious answer is "Yes" because the material on record revels that right from the inception, the say of the applicant-accused is that the seized material is not contraband. That, even in NDPS case, provisions of the Drugs Act more particularly Section 25 is applicable and therefore, he is entitled to apply u/s. 25 of the Drugs Act for re-testing. True it is that, his said say was negatived upto the Hon'ble High Court and at the stage of investigation, but ultimately, the Supreme Court in the said Criminal Appeal No. 1138/2012, up held its said contention and held that the provisions of Section 79 and 80 of the NDPS Act, incorporates the provisions of the Drugs Act and gave him liberty to file the present application. Admittedly, the samples in question are not tested in the Central Forensic Laboratory.
16. In the case of Thana Singh (Supra) Hon'ble Supreme Court has held and observed in para. 24 and 27 as under:
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 resampling. 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 and Nihal Khan V. State (Govt. of NCT of Delhi)]or perhaps to Section 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetic Act, 1940. While re-testing may be an Page 6 of 11 R/SCR.A/1024/2015 CAV JUDGMENT 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.
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 retesting/ 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.
17. The above decision will have no application to the facts of the present case. Firstly, it does not prohibit re-
testing, on the contrary, it impliedly says that such re- testing is permissible. No doubt it says that in absence of any compelling circumstances, any form of re-testing is strictly prohibited under the NDPS Act. However, as stated above, Hon'ble Supreme Court in the Said Criminal Appeal No.1138/2012 held and observed that " this opportunity to make an application for re-testing was not available to the appellant particularly since the report of the Directorate of Forensic Science, Gandhinagar, Gujarat was supplied to the appellant only in November, 2012 by Page 7 of 11 R/SCR.A/1024/2015 CAV JUDGMENT which time the judgment of the High Court had already been delivered on 11.05.2012. We do appreciate that there is a difference between re-testing of the goods at the stage of investigation of the offence and at the stage of trial. It is possible that the appellant could have moved an application within 28 days of November, 2012 to have the goods re-tested but it is submitted by learned counsel for the appellant that course would have been futile in view of the judgment delivered by the High Court on 11.05.2012 which specifically held that the appellant was not entitled to have the goods re-tested".
18. Finally, it can not be ignored that, in the case the applicant-accused is taking risk by asking for re-testing of the samples by any of the Central Laboratories, because in case the report of the Central Laboratory confirms the report of the DFSL, Gandhinagar, then the applicant- accused would have no option. Therefore, when the applicant-accused seeks to re-testing of the samples and when the Hon'ble Supreme Court in the said Criminal Appeal No.1138/2012 has recognized such right of the applicant accused and in the fact and circumstances of the case it appears that there exist extremely exceptional circumstances. In that case, there is no reason to refuse the prayer, so as to avoid the possibility, wherein ultimately this court or the Appellate court may have to give benefit of doubt to the applicant accused that, if re-testing was allowed to be done by any of the Central Laboratory, it may prove his innocence.
19. In view of the above circumstances and observation there is substance in the application and hence, I pass the following order:
ORDER
(i) The present application is allowed and it is directed that the nazir of the City Civil Court, Ahmedabad, will, in presence of the investigating officer and or in the presence of the complainant, learned Special PP and learned advocate of the applicant-accused extract the second samples from the seized contraband articles which were seized from Ahmedabad Airport and from the applicant-accused factory M/s.Kumud Drugs Pvt.Ltd. and I/o and or the complainant will seal the sample as per the rules and also seal it by the seal of the court and sent the samples to the Central Page 8 of 11 R/SCR.A/1024/2015 CAV JUDGMENT Forensic Laboratory, New Delhi (under CBI) for its examination. The said CFSL, Delhi will sent its report within one month.
(ii) The cost of re-testing shall be paid by the applicant-
accused Pronounced in the open court on this 21st day of January, 2015."
Being dissatisfied with the aforesaid order passed by the trial Court, the Department has come up with this application.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the trial Court committed any error in passing the impugned order.
It is true that the Supreme Court, in the case of Thana sing v. Central Bureau of Narcotics, (2013)2 SCC 590, has made the following observations as contained in para 27 :
"27. 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 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/resampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of retesting/re-sampling is strictly prohibited under the NDPS Act."
The Supreme Court has observed in para 27 referred to above that the request for retesting/re-sampling should be Page 9 of 11 R/SCR.A/1024/2015 CAV JUDGMENT entertained in the rarest of the rare cases and only if the compelling circumstances demand retesting. Having gone through the impugned order passed by the trial Court, I am of the view that no interference is warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India, more particularly, in light of the following averments made on oath by the accused in his reply :
"5.15 After obtaining the reports, the Respondent sough an opinion on the basis of the reports supplied by the DFS, Gandhinagar, from the highly reputed Haffkin Institute which is a recognized expert institution as mentioned under section 293 of the Criminal Procedure Code, 1973.
5.16 The Haffkin Institute in its detailed written report has clearly held that the alleged material is not "Methamphetamine" as contended by DFS, Gandhinagar. Further, the reports in journals of repute were also procured which clearly supported the contentions of the Respondent.
5.17 The Respondent thereafter moved this Court for the relief of Bail on the ground of having two contradictory reports with respect to the same chemical allegedly seized by the prosecution. However, the High Court rejected the Application for bail observing that the difference in the Reports of the laboratories is a triable issue. It must be noted at this juncture that the Haffkin Report, which is based on the scrutiny of the report of DFS, Gandhinagar, as is relied upon by the Respondent, was not disputed by the Petitioner in any manner whatsoever which can be seen from their reply. It is noteworthy that in the reply submitted by the Petitioner, the report of the Haffkin Institute was neither challenged nor explained.
5.18 In the meanwhile, a prosecution was launched under the provisions of the Drugs and Cosmetics Act, 1940, by the Department of Food and Drugs Administration, Maharashtra (FDA), upon the very same batch of the chemical which is the subject matter of the Page 10 of 11 R/SCR.A/1024/2015 CAV JUDGMENT proceedings in the present matter. Needless to add, that the Report prepared by FDA was contradictory to the report of the DFS, Gandhinagar. The copy of the Report was submitted by the FDA, Maharashtra, in its prosecution under the Drugs and Cosmetics Act, 1940, with respect to the very same batch of chemical as is seized by DRI, Ahmedabad.
5.19 Further, the Respondent obtained opinions from four different reputed laboratories i.e. (a) Startech Labs Pvt. Ltd., Hyderabad dated 24/12/2011, (b) National Chemical Laboratory at Pune dated 20/04/2012, (c) Bharati Vidhya Peth at Pune dated 16/04/2012 (d) University Science Instrumentation Centre at Shivaji University at Kolhapur dated 17/04/2012, which also gave contradictory findings as against the findings of the DFS, Gandhinagar."
I am of the view that in light of many contradictory reports on record regarding the exact nature of the contraband, one opportunity should be given to the accused to get the samples retested through the Central Laboratory i.e. the Central Forensic Science Laboratory, New Delhi, under the CBI. The trial is still in progress. It is likely to take some time before it is completed. In the mean time, the report of the retesting will also be before the Court and that will make the picture clear.
In the result, this application fails and is hereby rejected. Rule is discharged. Ad-interim order earlier granted stands vacated forthwith. The applicant shall comply with the order passed by the trial Court expeditiously and do the needful in the matter.
(J.B.PARDIWALA, J.) MOIN Page 11 of 11