Delhi High Court
Narcotics Control Bureau vs Athar Pervez & Ors on 16 November, 2018
Author: R.K.Gauba
Bench: R.K.Gauba
$~8
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 16th November, 2018
+ CRL.M.C. 1644/2015 and Crl. M.A. 5995/2015 (stay)
NARCOTICS CONTROL BUREAU ..... Petitioner
Through: Mr. Abhir Kumar for Mr. Rajesh
Manchanda, Advocate
versus
ATHAR PERVEZ & ORS ..... Respondents
Through: Mr. Yogesh Saxena, Advocate for
R-1, 2 & 4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. On the complaint (SC 25/13) of the petitioner - Narcotics Control Bureau (NCB) - respondents are facing criminal prosecution in the court of the Special Judge (NDPS) on the accusations of they having committed offences punishable under Section 9-A read with Sections 25-A / 25/22/23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the case primarily being founded on recoveries statedly made on 22.08.2013 of 30 kilograms of pseudoephedrine and 2.5 kg of Methaqualone followed by another recovery of 24.700 kgs of Methaqualone. The samples of the substance recovered had been sent by the NCB, during the course of its investigation, to Central Revenues Control Laboratory (CRCL) Crl. M.C. No.1644/2015 Page 1 of 8 on 23.08.2013. The CRCL by its report dated 19.09.2013 gave the following opinion :-
"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."
2. The NCB moved the special court by an application seeking permission to seek fresh samples to be sent to Central Forensic Science Laboratory (CFSL). The defence counsel submitted no objection to the prayer of NCB and, thus, the application was allowed by the Special Judge, by order dated 17.10.2013, with suitable directions for the duplicate samples drawn at the spot to be sent to CFSL at Hyderabad for "further analysis". The CFSL examined the samples and on such basis gave its report dated 10.01.2014 which would confirm that Methamphetamine had been detected in exhibit B- 2 and S-II.
3. Against the above backdrop, the first and fourth respondents moved an application before the Special Judge seeking "retest". The prayer was resisted by the NCB. The request of the defence, however, was allowed by the Special Judge, by her order dated 11.09.2014, directing that the case property be produced in the court for fresh samples to be drawn out therefrom in the presence of both sides Crl. M.C. No.1644/2015 Page 2 of 8 concluding that retesting of the case property had become necessary, taking note, inter alia, of certain background facts as under :
"2. Coming first now to the two applications filed for retesting of the case property, I have heard the Ld. Defence counsels Sh. Y.K. Saxena and Sh. Mann and the Ld. SPP on the said applications. Briefly stated the facts necessary for deciding the said application are as follows :-
(i). As per the allegations made in the complaint, pursuant to a secret information received by the NCB officials that the accused persons Atha Parvez and Wiqar Ahmed will be coming near Mc Donald's, New Friends Colony, New Surya Hotel, New Delhi to deliver narcotic drugs in their Santro Car between 2300 to 2330 hours, both the aforesaid persons were apprehended and two bags were recovered from the said car. As per the assertions made in the complaint, one bag was found containing 30.9 kg of a substance and the other bag was found containing 2.5 kg of another substance and as per the test conducted with the help of Field Testing Kit the 30 kg. of substance was found to be pseudoephedrine while the 2.5 kg of the substance was found to be Mehaqualone.
(ii). Pursuant to their apprehension both the accused persons were issued summons u/s. 67 NDPS Act and accused Amrinder assertedly inter alia disclosed that he used to export pseudoephedrine and methaqualone through the courier services provided by accused Amrinder and pursuant to the said statement of Athar Parvez, accused Amrinder on being enquired by the NCB officials produced before them two parcels which had been booked by Crl. M.C. No.1644/2015 Page 3 of 8 accused Athar Parvez with him and the said parcels were found to contain methaqualone on being tested by Field Testing Kit.
(ii). Admittedly, the samples that were taken out of the bag that was recovered from the Santo car and the parcels that were recovered from accused Amrinder, which assertedly contained methaqualone, when sent to CRCL, Delhi did not test positive for the said substance. In its report, the Chemical Examiner of the CRCL opined that on the bsis of chemical examination the presence of methaqualone could not be ascertained in the samples sent and that for want of characterization facilities, the exact identification of the samples could not be ascertained. Thereafter on an application filed by the NCB, they had been permitted by this court to send the duplicate samples taken from the said bag and the parcels to 10 CFSL, Hyderabad.
(iii). As per the CFSL, Hyderabad report which has been filed on record on behalf of the prosecution the said samples have now been found to contain metamphetamine.
3. Ld. Defence counsels had inter alia contended on 19.05.2014 and 24.07.2014, during the course of arguments on the said application that since the CRCL, New Delhi has the standard references for ascertaining whether a sample tested by it contains metamphetamine or not and the fact that the samples sent to CRCL were not found containing metamphetamine but were later on when sent to CFSL were found to contain the said substance raises a doubt whether representative samples at all were taken out from the case property or not.
Crl. M.C. No.1644/2015 Page 4 of 84. In rebuttal to the said arguments, the Ld. SPP on the said two dates had inter alia submitted that he is not aware whether the standard references for metamphetamine were available with CRCL, New Delhi or not and that he will seek instructions in this regard. Today however it is submitted by Ld. SPP that he could not seek the said instructions. However, the Ld. Defence counsels have today referred to the deposition of one CRCL expert, V.K. Sharma who was examined as a court witness in SC NO.05A/13 by the court of Ld. ASJ, NDPS Court, Saket. A certified copy of the said deposition has been placed before this court and a perusal of the same shows that thes aid CRCL expert had filed before the said court a list of reference standards of narcotic drugs and psychotropic substances available in CRCL and that thes aid list contains the substance metamphetamine at item no.18.
5. In view of the said list filed on behalf of the CRCL before a court, it is to be taken now that CRCL did have the standard references for testing metamphetamine and therefore there is much merit in the contention of the Ld. Defence counsels that since the CRCL report mentions that for want of characterization facilities the identification of the sample could not be ascertained, an inference is to be drawn that metamphetamine could not be determined in the sample sent to CRCL for if metamphetamine was actually present in the said sample, the CRCL by using standard references available with it would have detected the said substance in the sample. As such it is being rightly contended that there is a discrepancy between the report of CRCL, Delhi and CFSL, Hyderabad for though CFSL, Hyderabad could determine the presence of metamphetamine in the samples sent to it, CRCL could not do so though as per the case of the prosecution both the said samples were drawn out from the same substance."
Crl. M.C. No.1644/2015 Page 5 of 84. Thus, the samples drawn from the seized contraband were sent once again to CRCL. The CRCL, by its report dated 28.11.2014, gave the following opinion :-
"CLD 410(N) : The sample is in the form of off white crystalline powder. On the basis of physicochemical and chromatographic examinations the presence of Diacetylmorphine (Heroin), Morphine, Ephedrine, Pseudoesphedrine, Ketamine, Cocaine, Amphetamine, Methamphetamine and Methaqualone 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 substances in the sample under reference, it may be forwarded to CFSL Hyderabad for its characterization. Gross wt. of remnant sample returned with plastic pouch = 4.6 gm."
5. There is no dispute that the above mentioned report dated 28.11.2014 of CRCL was sent directly to the court. No directions suo motu were issued by the Special Judge in such context. Against this backdrop, the NCB moved application dated 05.02.2015 making yet another request for fresh samples to be sent to CFSL, Hyderabad or any other government lab as the court might deem fit for its testing on the lines suggested in the report dated 28.11.2014 of CRCL.
6. The prayer was resisted by the defence, inter alia, with reference to the decision of the Supreme Court reported as Thana Singh Vs. Central Bureau of Narcotics, JT 2013 (2) SC 407: (2013)2 SCC 590, the prime contention being that yet another round of retesting ought to be discouraged. The Special Judge upheld the Crl. M.C. No.1644/2015 Page 6 of 8 objection and rejected the prayer of NCB by his order dated 28.02.2015. By the same order, the prayer of the respondents for release on bail was granted by the special judge.
7. The NCB is aggrieved by the order dated 28.02.2015 rejecting its prayer for the samples to be sent to CFSL, Hyderabad or any other government laboratory for retesting and has thus approached this court by the petition at hand. The respondents reiterate their opposition on the basis of ruling of the Supreme Court in Thana Singh (supra).
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 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 Crl. M.C. No.1644/2015 Page 7 of 8 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.
10. In the result, the impugned order declining to send the fresh sample of the seized substance to Central Forensic Science Laboratory as was suggested in the report dated 28.11.2014 of Central Revenues Control Laboratory is set aside. The trial court judge is directed to take appropriate steps to have fresh samples sent to appropriate Forensic Science Laboratory of Government with requisite facilities.
11. The petition is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 16, 2018 yg Crl. M.C. No.1644/2015 Page 8 of 8