Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Gunwant vs The State Of Madhya Pradesh on 19 July, 2017

                        CRR-366-2017
             (GUNWANT Vs THE STATE OF MADHYA PRADESH)


19-07-2017

Shri Abhay Saraswat, learned counsel for the
petitioner.
Ms. Mamta Shandilya, learned Dy. Govt. Advocate for
the respondent/State.

Arguments heard.

2. Being aggrieved by order dated 11.03.2017 passed in Special S.T. No.04/2011 by Additional Session Judge, NDPS, Act, Mandsaur, the petitioner has come before this Court. Vide impugned order, the Special Judge has turned down the prayer of the petitioner for re-testing/re-analyzing of the opium seized in the case by the Central laboratory, New Delhi or Hydrabad.

3. Brief facts of the case are that a case was registered against the petitioner for having illegal opium in his possession. During the trial he filed an application for preparing another sample from the opium kept in the custody of the Court and sending it for retesting to Central Laboratory, New Delhi or Hydrabad. The learned trial Court referring the judgement of Hon’ble the Supreme Court in Thana Singh v. Central Bureau of Narcotics reported in 2013 CRI.L.J. 1262, dismissed the application. The learned trial Court observed that the charge-sheet against the accused/petitioner has been field on 08.04.2011. The sample taken out from the seized substance was got tested from the FSL, Bhopal who has submitted report on 28.02.2011. The reason taken by the accused/petitioner that “Morphine word is not mentioned in the test report of FSL is not correct as it was mentioned in the report that the sample contains 5.19% En-hydried Morphine”. The learned trial Court was of the view that the accused/petitioner did not press the prayer during the whole trial which was pending since last six years and during this period, 16 prosecution witnesses have been examined and there was a direction of the High Court for expedite trial and rejected the application.

4. Learned counsel for the petitioner has submitted that although there is no provision in the Act for sending the second sample to the Central Laboratory, but Hon’ble the High Court and the Supreme Court has permitted the same.

5. He placed reliance on the order passed in SLP (Criminal) No.6935/2015 Suresh Singh v. State through NCB, Indore. He further submitted that the petitioner is an agriculturist and the police had falsely implicated him. Seized substance was not opium. During the statement of Lalit Jangshahi (PW-10) recorded before the trial Court, when property produced before the trial Court, they could see with naked eyes that the substance was not opium. The police has not sent the sample from the seized article to the FSL. The police did not sent sample in bulk quantity while it was necessary to send in bulk quantity. He further alleged that police had not sent original substance seized from him to the FSL, he requested that second sample be taken out from the article deposited with the Court and be sent to the Central Laboratory either New Delhi or Hydrabad.

6. Learned public prosecutor has opposed the prayer on the ground that there is no provision in the N.D.P.S., Act for retesting of contraband deposited with the Court and prayed for rejection of the petition.

7. Learned counsel for the petitioner placed reliance on the order dated 24.06.2015 passed in SLP (Criminal) No.6935/2015 Suresh Singh v. State through NCB, Indore.

8. I have considered the rival contentions of both the parties and have gone through the record.

9. Hon’ble the Supreme Court has permitted testing of second sample of the seized material in the attaining facts and circumstances of the Case.

10. Hon’ble the Supreme Court has discussed the issue in detail in Thana Singh case (Supra). Hon’ble apex Court observed in para no.25 of the judgement, which reads as under:-

“25. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the concerned laboratories, 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.”

11. In the present case, the learned trial Court has observed that since initiation of trial till the recording of 16 prosecution witnesses, the petitioner has never challenged the report filed by the FSL. At the fag end of the trial, he has filed the application only with intent to protract the trial only on the ground that it is not mentioned in the report of the FSL that the substance was Morphine is not supported by the report. It is mentioned in the report that the sample sent to the FSL contains Morphine, there does not appear any ground after six years of its filing.

12. Conditions enunciated in the decision of Than Singh (Supra) by Hon’ble the apex Court do not exists in the present case.

13. Considering all the aspects of the application, the learned trial court has dismissed the request of the petitioner. I do not find any illegality, impropriety or perversity in the order of learned trial Court. There is not ground to interference in the impugned order. The present petition sans merit, deserves to be and is dismissed hereby.

(VIRENDER SINGH) JUDGE