Kerala High Court
State Of Kerala vs Deepak P. Shah on 28 March, 2001
Equivalent citations: 2001CRILJ2690
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. This M.C. is at the instance of the State. Crime No. 117 of 1999 of the Mattancherry Police Station involves offence under Section 22 of the N.D.P.S. Act. The item allegedly seized is Lorazepam, which is a Psychotropic substance. Sample A prepared during seizure was sent for chemical analysis through Court to the Regional Laboratory at Kakkanad and the report was in the negative, i.e. against the prosecution. Part of the same stock, involved in another case, when subjected to analysis in the Forensic Science Laboratory, Trivandrum revealed that it contained 'Lorazepam'. Faced with this situation, the Investigating Officer moved the Court for sending another sample (Sample B) available in Court for analysis to the Forensic Science Laboratory, Trivandrum. The said request was turned down by the learned special Judge stating that there is no provision to send a second sample as prayed for.
2. The learned counsel for the respondent opposed the motion for sending a second sample on various grounds. It was pointed out that unlike in the Prevention of Food Adulteration Act there is no provision in the NDPS Act for sending a second sample to any laboratory. Yet another contention is that in the instant case no second sample was prepared at all.
3. During hearing, the learned public prosecutor referred to a decision of this Court in Maniyan v. Excise Circle Inspector (Crl.M.C. No. 4208 of 1997), where the motion was not from the prosecution, but from the accused for sending a second sample to a different laboratory other than the one which gave a positive finding. Notwithstanding the objection raised by the State, the request was allowed. The contention of the learned Public Prosecutor before me is that there is no difference between the prosecution and the accused in the matter and that applying the same yardstick the motion from the prosecution also should be allowed.
4. No direct authority of the Apex Court is placed before me by either side, which would throw light on the justifiability of sending a second sample for analysis in an NDPS case. The matter has therefore to be considered independently,
5. One of the contentions raised by the learned counsel for the respondent is that under Rule 2(c). Chemical Examiner competent to analyse the sample is only the chemical examier, Government Opium and Alkaloid works, Neemuch or as the case may be, Ghazipur and that the Chemical Laboratory at Trivandrum is not competent to make the analysis. This contention has to fail in view of the decision of this Court in Azeez v. State of Kerala (1993) 2 Ker LT 252). The contention raised therein based on Rule 2(c) was negatived and it was found that unless the Act or the rules prohibits any person other than chemical examiner mentioned in Rule 2(c) to conduct analysis, it is open to the Court to send it to any analyst for analysis and that the opinion of such expert can be used as evidence under Section 293 of the Cr.P.C.
6. It is true that the NDPS Act does not specifically refer to the forwarding of a second sample for analysis. It is also true that some of the enactments like P.F.A. Act provides for forwarding a second sample. This also, according to me, is insufficient to conclude that a Court dealing with NDPS sustance is disabled from sending a second sample for analysis in the circumstances of the case and if the interest of justice so requires. This Court had already considered this aspect though on motion made by the accused in Cri.M.C. No. 4208 of 1997 and of 1997 and concluded that even in the absence of specific provision, request for sending a second sample for analysis can be allowed.
7. If the accused can make such a motion, definitely the prosecution also can do the same. After all what is paramount is interest of Justice and just like the accused has a right to establish that the item seized is not a prohibited item under the Act, the prosecution also can avail of adequate opportunity to forward a second sample to establish that the case alleged by the prosecution is correct and for that purpose seek forwarding of a further sample to a more competent Laboratory. On the facts of the present case, I am satisfied that the motion for sending a second sample to the Laboratory at Trivandrum is well justified.
The impugned order is hence set aside and the learned Special Judge for trial of NDPS cases, Ernakulam is directed to forward 'Sample B', if available in Court for analysis. If no such sample is available, or it is not fit for sending to the Laboratory, the Court will pass fresh orders in this matter on the merits. In case sample B is sent and the said Laboratory give's an opinion different from that given by the Regional Laboratory, Kakkanad, the Court will be fully justified in insisting on appropriate oral evidence of the analyst before deciding the question as to which of the reports is acceptable.
The Cri.M.C. is allowed as above.