Punjab-Haryana High Court
Karan Kakkar vs State Of U.T on 3 October, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No. M-19025 of 2013 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-19025 of 2013
DATE OF DECISION: 3.10.2013
Karan Kakkar ..........Petitioner
Versus
State of U.T., Chandigarh ..........Respondent
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Arun Bhardwaj, Senior Advocate with
Mrs. G.K. Mann, Advocate and
Mr. Gaurav Chopra, Advocate
for the petitioner.
Mr. Sukant Gupta, Advocate
for U.T., Chandigarh.
****
DAYA CHAUDHARY, J.
The present petition has been filed under Section 482 Cr.P.C. for quashing of order dated 24.5.2013 passed by Judge Special Court, Chandigarh, vide which, sample has been ordered to be sent for re-testing without issuing notice to the accused.
Briefly, the facts of the case are that on 17.3.2013, an FIR No. 161 under Sections 9-A, 25A and 29 of NDPS Act (hereinafter referred to as 'the Act') was registered against the petitioner as loose tablets were recovered from three bags lying in Mahindra XUV 500, being driven by the petitioner. The said car was stopped by the Police near Power House of Kishangarh at Manimajra road, in which, besides the driver, three other persons were also travelling. On checking of the vehicle and personal search of the accused, recovery of tablets of pseudo-ephedrine was made. Pooja Sharma 2013.10.09 10:25 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-19025 of 2013 (2) After registration of FIR, the Investigating Officer approached the Illaqa Magistrate for issuing order for sending the samples for testing and accordingly the samples were sent for chemical examination vide memo dated 19.3.2013, which was returned by Central Forensic Science Laboratory, Chandigarh on the ground that certified reference material of pseudo-ephedrine is not available with the laboratory and, therefore, examination is not possible in the laboratory. Thereafter again an application was moved by the Investigating Officer with a request that orders be issued to the Director, Central Revenues Control Laboratory, New Delhi to get the parcel of samples examined and to give opinion whether it contains pseudo-ephedrine salt or otherwise. As per report of Central Revenues Control Laboratory, New Delhi, the presence of pseudo- ephedrine could not be ascertained. Again an application was moved before the Court for sending the samples to CFSL, Hyderabad, which was allowed vide order dated 24.5.2013.
Order dated 24.5.2013 is subject matter of challenge in the present revision petition.
Learned senior counsel for the petitioner has challenged the impugned order on the ground that no notice has been issued to the petitioner and application for re-testing has been allowed, which is against his interest. Learned senior counsel further submits that re-testing/re- sampling under the Act can be permitted only under exceptional circumstances and for that cogent reasons are to be recorded by the Court, whereas, neither the reasons have been recorded nor any exceptional grounds have been made. Learned counsel has also relied upon the judgment of Hon'ble the Apex Court in the case of Thana Singh Vs. Central Bureau of Narcotics 2013 (1) RCR (Criminal) 861 and of this Court in Jarmanjit Singh and another Vs. State of Punjab 2003 (2) RCR Pooja Sharma 2013.10.09 10:25 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-19025 of 2013 (3) (Criminal) 753 in support of his contentions.
Learned counsel for U.T., Chandigarh submits that the petitioner has no locus standi to challenge the impugned order as till date he is not an accused as neither investigation has been completed so far nor challan has been presented. Learned counsel also submits that petitioner has not been able to show as to how these documents have come in his possession when no such document has been issued to him. It is also the argument of learned counsel for U.T. that it is not a case of re- testing and no notice is required at this stage. The judgments relied upon by the learned counsel for the petitioner are not applicable in the present case. Learned counsel for U.T., Chandigarh also relied upon the judgments of Hon'ble the Apex Court in M.C. Abraham and another Vs. State of Maharashtra and others 2003 (2) SCC 64, State of H.P. Vs. Pawan Kumar 2004 (7) SCC 735 and Thana Singh Vs. Central Bureau of Narcotics 2013 (2) SCC 590, of this Court in Jarmanjit Singh and another Vs. State of Punjab 2003 (2) RCR (Criminal) 753, Kerala High Court in State of Kerala Vs. Deepak 2001 (3) RCR (Criminal) 216, Delhi High Court in Nihal Khan Vs. State (Govt. of NCT of Delhi) 2007 (3) RCR (Criminal) 850 and of Rajasthan High Court in Gulab Rai Vs. Rajasthan State and others 1962 (1) Cri. L.J. 666, in support of his contentions.
Heard the arguments advanced by learned counsel for the parties and have also perused the impugned order as well as other documents available on the file.
As per case of the prosecution, the petitioner and other persons were sitting in vehicle Mahindra XUV 500 and on search of the vehicle, three bags containing 60.500 kgs, 59.00 kgs and 54.980 kgs of tablets were recovered, which were detected to be of pseudo-ephedrine Pooja Sharma salt. The samples were drawn from three packets and were sent to CFSL, 2013.10.09 10:25 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-19025 of 2013 (4) Chandigarh but were sent back with the report that no such facility was available in their lab. Thereafter it was sent for checking to Central Revenues Control Laboratory, New Delhi but presence of pseudo- ephedrine could not be ascertained in the contents of the samples. However, it was mentioned that just to rule out any possible presence of Narcotics Drugs and Psychotropic substance, the sample may be forwarded to CFSL, Hyderabad. Thereafter, an application was moved before the Court for sending the samples to CFSL, Hyderabad, which was allowed by the trial Court vide order dated 24.5.2013, which is subject matter of challenge in the present petition. Said order has been challenged on the ground that it is a case of re-testing and re-testing is permissible only under exceptional grounds. No notice was issued to the petitioner, whereas, before re-testing notice should have been issued to the petitioner as the earlier report was in his favour and the petitioner is going to be aggrieved by the order of re-testing.
The submission made by learned counsel for the petitioner has been opposed on the ground that the petitioner has no locus standi in the case as the investigation has not been completed so far and unless the investigation is completed, the petitioner cannot be termed as an accused and for that no notice is required. Learned counsel for U.T. has also submitted that it is not a case of re-testing as the contents of the tablets could not be ascertained and the same has been sent for analysis. The judgment of Hon'ble the Apex Court in Thana Singh's case (supra) is not applicable in the present case.
Learned counsel for the petitioner also submits that the petitioner has moved an application for grant of bail and the order passed in the bail application as well as in the application for retesting is a public document and it cannot be said that the order passed by the Court in Pooja Sharma 2013.10.09 10:25 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-19025 of 2013 (5) allowing application was not in the knowledge of the petitioner. Learned counsel for the petitioner also submits that any order which is going to affect the interest of the petitioner can be challenged by him.
Admittedly, the Act does not permit re-testing/re-sampling but there has been instances where NDPS Courts have been entertaining the applications for re-testing/re-sampling. Sometimes the applications are moved just to delay the proceedings. Section 79 and 80 of Act permit such applications but the application is allowed only when re-testing is necessary. The question whether re-testing should be entertained in NDPS Act has been a matter of challenge in various petitions since long. It has been held in some of the judgments that it can be permitted only under extremely exceptional circumstances and cogent reasons are to be recorded by the Presiding Judge. An application in such cases must be filed within a period of 15 days of the receipt of test report and thereafter no such application should be entertained. Undisputedly, the investigating agency is to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the First Information Report. It is also open to the Magistrate concerned to accept the report or to order further enquiry. The Court cannot direct the investigating agency to submit a report as per its views as it would amount to unwarranted interference with the case. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance but he cannot direct the investigating agency to submit a report to the effect that the material collected during the course of investigation supports the allegations.
Pooja Sharma2013.10.09 10:25 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-19025 of 2013 (6) Initially the samples were sent by the Investigating Officer for chemical examination vide memo dated 19.3.2013 but the same were returned by Central Forensic Science Laboratory, Chandigarh with the report that certified reference material of pseudo-ephedrine is not available with the laboratory and chemical examination of the same is not possible in the said laboratory. The case was returned in original without giving any report as facility for chemical examination was not available in the said laboratory. Thereafter an application was moved by the investigating officer before the trial Court with a request to issue letter in the name of Director, Central Revenues Control Laboratory, New Delhi to deposit sample of the case vide letter dated 28.3.2013, which was allowed and the following report was sent from there:-
"The sample in in the form of white tablets. On the basis of chemical and chromatographic examinations, the presence of pseudoephedrine could not be ascertained here in the sample under reference. Therefore to rule out possible presence of any Narcotics drugs and Psychotropic substance in the samples under reference, sample may be forwarded to CFSL, Hyderabad for its characterization."
Thereafter again an application was moved by the investigating agency before Additional Sessions Judge, U.T., Chandigarh with a request for obtaining permission for sending sample to CFSL, Hyderabad for further examination on 24.5.2013, which was allowed on the same date. Said order has been challenged on the ground that re-testing or re-sampling can be permitted only under extremely exceptional circumstances and for that cogent reasons are to be recorded by the trial Court. In the present case, the application has been allowed but neither exceptional circumstances have been mentioned nor any reasons have Pooja Sharma 2013.10.09 10:25 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-19025 of 2013 (7) been recorded. A positive observation has been made by the trial Court that re-testing of sample cannot be allowed unless the exceptional reasons are there but still the same has been allowed, which is contrary to the ratio of judgment of Hon'ble the Supreme Court in Thana Singh's case (supra). Although, it has been argued by learned counsel for U.T., Chandigarh that the petitioner has no right to challenge the impugned order as neither he is an accused nor any cause of action has arisen to challenge order as only investigation is in progress but there is no bar for the accused under the Act to challenge the said order. There is also no bar on the Court allowing such application. It does not mean that every application moved by accused under the Act is to be allowed. In the present case the application has been moved by the investigating officer for sending sample for re- testing/re-sampling but the application has been allowed without mentioning any reason as to what are the exceptional circumstances whether re-sampling/re-testing is necessary. Simply moving of an application by the investigating officer is not sufficient unless the reasons are there. It is the duty of the Court to probe the circumstances and matter at hand while allowing such application. Every application is to be considered keeping in view the interest of justice and in case re-testing/re- sampling is necessary then it can be allowed but not as a matter of right. Only under extremely exceptional circumstances and for reasons to be recorded in writing by the Court, it can be allowed. In Thana Singh's case (supra), it has been held that under the Act re-sampling/re-testing of the samples are not permissible as there has been a trend that NDPS Court have been consistently obliging applications for re-testing/re-sampling which add to delay the proceedings. It has further been held that application should be permitted only under extremely exceptional circumstances and for cogent reasons to be recorded by the Presiding Pooja Sharma 2013.10.09 10:25 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-19025 of 2013 (8) Judge. It has also been mentioned that an application in such rare cases must be made within a period of 15 days of the receipt of test report and thereafter no such application should be entertained. In the present case, the investigating officer has not mentioned any reason in the application at the time of moving second application. The question for determination by this Court is whether non-compliance of provisions of Section 52-A (2) of the Act would render the search and seizure illegal. As per said Section, the sample is to be sent for analysis which has been taken out in the presence of the Magistrate and this required to be duly certified by him.
The said provisions are required to be followed as and when the original sample is lost in transit or otherwise where trial Court being satisfied from the material placed on record orders for the second test. Although in the earlier report of chemical examiner, which is available on record, a report has come from the chemical examiner and thereafter the second application has been moved but no reason whatsoever has been mentioned to ignore the report of the chemical examiner. To obtain second analysis by moving another application is not only unjust but contrary to provisions of ratio of judgment in Thana Singh's case (supra). The second analysis report sought by the investigation officer cannot be made the basis for prosecution of the accused.
Accordingly in view of the facts and circumstances of the present case and also the law position discussed above, the present petition is allowed and impugned order dated 24.5.2013 passed by Judge Special Court, Chandigarh is set aside.
3.10.2013 (DAYA CHAUDHARY)
pooja JUDGE
Pooja Sharma
2013.10.09 10:25
I attest to the accuracy and
integrity of this document
High Court, Chandigarh