Bombay High Court
Manoj Tejraj Jain vs The State Of Maharashtra on 5 December, 2018
Author: Mridula Bhatkar
Bench: Mridula Bhatkar
Sherla V.
apl.1297.2016_3.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1297 OF 2016
Shri Manoj Tejraj Jain ... Applicant
Vs.
State of Maharashtra ... Respondent
Mr.P.S. Nambodiri i/b Ayaz Khan for the Applicant
Mr.Shishir Hiray, Spl P.P. with Pallavi N. Dabholkar, APP, for the
Respondent - State
CORAM: Mrs.MRIDULA BHATKAR, J.
DATED: DECEMBER 5, 2018 P.C.:
1. This application is moved challenging the order dated 21.9.2016 passed by the learned District Judge and Additional Sessions Judge, Thane in Criminal Miscellaneous Application No.249 9of 2016 in NDPS Special Case No.28 of 2016. The applicant/accused is facing trial u/s 8(c) r/w sections 9A, 24, 25A, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act.
2. As per the case of the prosecution, the applicant is a Director of a company, which is involved in the manufacturing of ephedrine Page 1 of 4 ::: Uploaded on - 17/12/2018 ::: Downloaded on - 29/12/2018 07:10:51 ::: apl.1297.2016_3.doc and Pseudoephedrine. In a raid, the respondents seized 18 tonnes of Ephedrine from the applicant. The accused was arrested on 26.4.2016. The samples of the material which was seized were sent to Central Forensic Science Laboratory (CFSL) and the report of the CFSL is received and is produced in the chargesheet. Thereafter, the applicant/accused moved application requesting for retesting of samples for conducting Specific Optical Rotation (SOR) test in respect of samples in this present case. The respondent has opposed the application and after considering the submissions of both the parties, the learned Sessions Judge rejected the application.
3. The learned Counsel for the applicant has submitted that though the investigating agency has seized Pseudoephedrine and admittedly, the applicant is a manufacturer of Ephedrine, some ephedrine, which is called d-ephedrine, does not fall under the category of Controlled Substance and the other type of ephedrine i.e., l-ephedrine is a Controlled Substances and is covered under the NDPS Act. He submitted that whether ephedrine is a d- ephedrine or not, can be decided only by carrying out SOR test. Such test is not carried out and, therefore, the correct components Page 2 of 4 ::: Uploaded on - 17/12/2018 ::: Downloaded on - 29/12/2018 07:10:51 ::: apl.1297.2016_3.doc or the type of ephedrine is not stated and has come on record before the trial Court. He submitted that there is no bar in sending the samples for retesting and in support of his submissions, he relied on the judgment in Thana Singh vs. Central Bureau of Narcotics1.
4. Learned Prosecutor while opposing this application submits that there is no provision of sending the samples for retesting in the Act and no such specific case is also made out by the applicant.
5. Heard submissions and I have gone through the order passed by the learned Sessions Judge, wherein he has considered the ratio laid down in Thana Singh (supra), and has considered that there is no special circumstance made out for retesting, as SOR test can be the only conclusive test. He has also discussed about the other methods of testing.
6. I have considered the order; the S.O. No.1296(E) dated 28.12.1999 under the NDPS Act, 1985, where it is mentioned that the use of 'ephedrine' and 'Psuedoephedrine' is declared as Controlled Substance. I am of the view that if at all, the 1 2013 Cri.L.J. 1262 Page 3 of 4 ::: Uploaded on - 17/12/2018 ::: Downloaded on - 29/12/2018 07:10:51 ::: apl.1297.2016_3.doc applicant/accused wants to bring on record that it was necessary to conduct SOR test to determine whether ephedrine, which was seized, falls in the category of d-ephedrine or l-ephedrine, then, the trial Court can take decision after taking into account the evidence tendered by the accused on the point of this difference in these two drugs. The accused will get an opportunity to adduce his own evidence so also as the accused has not admitted CFSL report, the analyst from the CFSL laboratory can be called as a witness in the trial. By crossexamining the said witness, the applicant/accused can seek necessary admissions in his favour to bring on record that the seized drug 'ephedrine' is in fact 'd-ephedrine', which is not a controlled substance.
7. In view of this, I do not find any illegality with the order passed by the learned Sessions Judge. Hence, the application is dismissed. However, the learned Sessions Judge is directed to expedite the matter and it is to be concluded within nine months from today.
(MRIDULA BHATKAR, J.) Page 4 of 4 ::: Uploaded on - 17/12/2018 ::: Downloaded on - 29/12/2018 07:10:51 :::