Himachal Pradesh High Court
_________________________________________________ vs State Of Himachal Pradesh on 24 July, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No. 195 of 2022 Reserved on: 04.07.2023 Date of Decision: 24.07.2023 _________________________________________________ Anjali (through her husband Thaman Pun) ....Petitioner Versus State of Himachal Pradesh ...Respondent __________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 ________________________________________________ For the petitioner: Mr. Bhupinder Singh Ahuja, Advocate.
For the respondent: Mr. Jitender Kumar Sharma, Additional Advocate General.
________________________________________________ Sushil Kukreja, Judge The accused/petitioner, through her husband, maintained the instant petition under Section 482 Cr.P.C., with a prayer for retesting of sample of contraband allegedly recovered from her possession.
2. The facts of the case can be summarized as under:
2(a). The accused/petitioner was arrested in a case with respect to FIR No. 91 of 2021, dated 18.04.2021, under 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 24/07/2023 20:38:08 :::CIS 2
Section 20 of the Narcotic Drugs & Psychotropic Substances .
Act, 1985, (for the sake of brevity hereinafter referred to as "ND&PS Act"), registered at Police Station Kullu, H.P., as she was allegedly found to be in possession of 1.312 kgs of charas/cannabis. During the investigation, the recovered contraband was produced before the Court of Judicial Magistrate First Class, Kullu, where proceedings under Section 52-A of the ND&PS Act were conducted and thereafter the sample parcel, alongwith relevant documents, was sent to SFSL, Junga, for chemical analysis. As per the report of the Chemical Examiner, SFSL, Junga, it was confirmed that the exhibit was an extract of cannabis and sample of charas.
2(b). On receipt of report of the Chemical Examiner, the petitioner had filed an application and sought that the sample of contraband be sent for retesting to CFSL, Ministry of Home Affairs, Government of India, Plot No. 2, Sector 36A, Dakshin Marg, Chandigarh - 160 036 or any other laboratory. It is averred that the alleged recovered substance is prepared by a mixture of crushed/grinded leave of cannabis plant and other plants with chemical used in ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 3 furniture industry and the same can be verified and tested by .
independent Forensic Science Laboratory. The above crushed/grinded leave does not fall in the definition of charas, i.e., separate resin in whatever form whether crude or purified obtained from cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. r 2(c). The petitioner further alleged that FSL report before the learned Trial Court is to be given by a forensic expert and when the test report is a routine report, which is just cut and paste in compute, then it is not the result of comprehensive procedure. The petitioner prayed that a direction may be issued to the Forensic Science Laboratory to determine that whether the sample of alleged recovered substance is separated resin collected from the cannabis plant, as defined under Section 2(iv) of the ND&PS Act and charas as per Section 2(iii) of ND&PS Act. It is further prayed that direction may also be issued to determine and specifically mention in the report, whether the alleged sample of recovered substance contains any foreign material or not, ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 4 which is not originated from the cannabis plant, as defined in .
Section 2(iv) of the ND&PS Act.
3. The respondent/State, in its reply filed to the instant petition, denied that the Investigating Agency has planted any fake case against the petitioner. It is alleged that contraband was recovered from the exclusive and conscious possession of the petitioner and after completing all the codal formalities, the petitioner was arrested. As per the replying respondent/State, the report with regard to the recovered contraband was obtained, after analysis and examination of the sample of contraband by the Chemical Examiner and in the report cannabis was found in the sample of the contraband. It is averred that investigation in the case has been conducted fairly, therefore, there is no reason for sending the sample of the recovered contraband for retesting. The petitioner has no legitimate reason for retesting the recovered contraband. SFSL, Junga is independently functioning and its reports are admissible within the purview of law, hence the report is trustworthy, reliable and admissible. Lastly, it is prayed that the petition, ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 5 being devoid of merits, deserves dismissal and may be .
dismissed.
4. I have heard the learned counsel for the petitioner, learned Additional Advocate General, for the respondent/State and meticulously examined the entire records.
5. The learned counsel for the petitioner contended that the Court below has erred in dismissing the application seeking retesting of the contraband, as according to him, the application was made by the petitioner within 15 days of the receipt of the copy of the report of the chemical analysis. He further contended that the alleged recovered substance is prepared by mixing crushed and grinded leaves of cannabis plants and other plants with chemical used in furniture industry and the same is not charas, as per the ND&PS Act, but crushed leaves of cannabis plant, which does not fall under the mandate of the ND&PS Act.
6. Per contra, the learned Additional Advocate General contended that in absence of any specific case by the petitioner, it is not proper on her part to seek retesting of the contraband, as the petitioner has failed to show the ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 6 extremely exceptional circumstances for retesting of the .
sample. He further contended that the contraband was properly and accurately analyzed by the Chemical Examiner, SFSL, Junga.
7. The perusal of the record reveals that 1.312 kgs of charas was allegedly recovered from the possession of the petitioner/accused.
r The recovered contraband was produced before the Court of Judicial Magistrate First Class, Kullu, where the proceedings under Section 52-A of the ND&PS Act were conducted and thereafter the sample parcel, alongwith relevant documents, was sent to SFSL, Junga, for chemical analysis. The report of the Chemical Examiner, SFSL, Junga, was also received, which confirmed that the exhibit was an extract of cannabis and sample of charas. The relevant portion of the report reads as under:
"Results of the examination Various scientific tests such as physical identification, chemical, chromatographic & FTIR analyses were carried out in the laboratory with the exhibit stated as charas, with representative & homogenous sample. The above tests performed indicated the presence of cannabinoids including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of characteristic cystolithic hairs in the exhibit. Charas is a resinous mass, which on testing was found ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 7 present in the exhibit. The quantity of purified resin as found in the exhibit stated as .
charas is 34.16% w/w. The result thus obtained is given below.
The exhibit is extract of cannabis and sample of CHARAS"
8. The perusal of the report of the Chemical Examiner shows that the sample of the contraband was checked and analyzed by conducting the required procedure. Various scientific tests were conducted in the laboratory, which indicated the presence of cannabinoids, including the presence of tetrahydrocannabinol in the exhibit and the microscopic examination indicated the presence of characteristic cystolithic hairs and the quantity of purified resin stated to be charas was 34.16% w/w.
9. It is not in dispute that the application for retesting of the sample was filed within 15 days after receiving the chemical analysis report. Therefore, it is clear that the petitioner had approached the Court at an early opportunity available to her. The ND&PS Act does not incorporate within it any specific provision directing retesting of the contraband. There is also no provision indicative of barring exercise of such authority. When an application is filed seeking retesting, it is obligatory for the Court to see ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 8 whether it was filed as a delaying tactic or whether it is .
expedient in the interest of justice to afford fair trail to the accused or that would help the prosecution to establish its case. The law for retesting of the sample is well settled by the Hon'ble Supreme Court in Thana Singh vs. Central Bureau of Narcotics, (2013) 2 Supreme Court Cases 590, wherein it has been held 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 applicants 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 Court seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [see State of Kerala v. Deepak P Shah2 and Nihal Khan v. State (Govt. of NCT of Delhi)3] or perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 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 2 2001 Cri LJ 2690 (Ker) 3 2007 Cri LJ 2074 (Del) ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 9 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 56of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re-testing.
25. Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the abovestated factors. Further, in the light of Section 52-A 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.
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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."
10. Thus, the perusal of the aforesaid judgment reveals that any request as to the re-testing/re-sampling shall not be entertained as a matter of course and the same may be permitted ::: Downloaded on - 24/07/2023 20:38:08 :::CIS 10 in extremely exceptional circumstances for cogent reasons to be .
recorded by the Court.
11. In the case on hand, no doubt the petitioner has filed the application within 15 days from the receipt of the report from the SFSL, Junga, but she has failed to show extremely exceptional circumstances for retesting the contraband. At this stage, it cannot be said that the fake drug has been planted against the petitioner/accused as the petitioner has failed to show any enmity with the police official(s) or any other person having inimical terms with her due to which such contraband has been implanted upon her. In view of the report of the chemical examiner, prima facie it cannot be said that the tests on the contraband were not conducted as per the procedure. The learned counsel for the petitioner/accused has failed to explain as to how the contraband recovered was not cannabis/charas. Therefore, in the absence of any extreme exceptional circumstances in the case, the learned Trial Court has rightly dismissed the application filed by the petitioner for retesting of the sample of the contraband. In other words, the impugned order does not call for any interference by this Court.
::: Downloaded on - 24/07/2023 20:38:08 :::CIS 1112. In view of what has been discussed hereinabove, the .
petition, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stand(s) disposed of.
13. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.
( Sushil Kukreja ) th 24 July, 2023 Judge (virender) ::: Downloaded on - 24/07/2023 20:38:08 :::CIS