Michael Onyeka Jude v. Directorate of Revenue Intelligence & Anr.

1. The Applicant has challenged the order dated 10.07.2023 passed by the learned Special Judge for N.D.P.S. at Mumbai. By the impugned order, the learned Special Judge allowed the application filed by the Respondent No.1 herein i.e. the Directorate of Revenue Intelligence, praying for sending the reserved sample for testing to CRCL, New Delhi. However, the learned Special Judge vide his order permitted the reserved sample to be sent to the Central Forensic Science Lab (CFSL) for testing. 2 of 25 1-apl-1142-23

2. Heard Mr. Ayaz Khan, learned counsel for the Applicant, Mr. Amit Munde, learned Special P. P. for the Respondent No.1 and Mr. Arfan Sait, learned APP for the State/Respondent No.2.

3. Before referring to the submissions made by both the sides, it is necessary to mention some facts on record. i) On the basis of specific intelligence, a passenger by the name Maheswaran Rajgopal Thondapa who had arrived in Mumbai through a flight from a foreign country on 19.03.2023 was intercepted. His luggage was searched. It resulted in recovery of 9.97kg of material in powder and lump form. It was tested by the field testing kit and the result showed positive for Heroin. It was valued at around Rs.70 crores. It was seized under the panchanama dated 19.03.2023. His statement was recorded U/s.67 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘N.D.P.S. Act’). It led the investigating agency to the present applicant who was residing at a hotel in Mumbai. 3 of 25 1-apl-1142-23 ii) The investigating agency went to that hotel and further investigation was carried out. The applicant led the investigating agency to a rented house. The search resulted in seizure of 98 gms. of white powder purported to be Cocaine and 100gms. of light yellow powder purported to be heroin. It was seized. The investigation was carried out for commission of offences punishable under sections 21(c), 23(c), 28, 29 and 30 r/w. Section 8(c), as well as, U/s.25 and 27A of the N.D.P.S. Act. The applicant and the coaccused were arrested. iii) On 19.04.2023, the procedure U/s.52A of the N.D.P.S. Act was carried out and two samples each of the three separate articles were drawn. They were marked as ‘A[1] original’ and ‘A[1] duplicate’, ‘B[1] original’ and ‘B[1] duplicate’, as well as, ‘C[1] original’ and ‘C[1] duplicate’. The samples were drawn before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai. iv) On 20.04.2023, the samples marked as ‘A[1] 4 of 25 1-apl-1142-23 original’, ‘B[1] original’ and ‘C[1] original’ were sent to the Deputy Chief Chemist (DYCC), New Custom House Laboratory, Mumbai for chemical analysis. v) The test reports dated 30.06.2023 from DYCC, Mumbai in respect of those samples were received on 06.07.2023 by the investigating agency. vi) The report in respect of ‘A1-Original’ reads thus - ‘Received one sample packet marked as “A1-Original”. The sample is in the form of brownish sticky pasty mass. On the basis of Chemical, Chromatographic and Spectrometric examination the sample does not show the presence of Heroin (Diacetyl morphine), Morphine cocaine, Amphetamine & Methamphetamine. However, for further identification/confirmation the sample may be forwarded to any other government laboratory, if required. (The bold portion is reproduced as it was mentioned in bold letters in that report). vii) The report in respect of ‘C1-Original’ reads thus - 5 of 25 1-apl-1142-23 ‘Received one sample packet marked as “C1-Original”. The sample is in the form of off white powder. On the basis of Chemical, Chromatographic and Spectrometric examination the sample does not show the presence of Heroin (Diacetyl morphine), Morphine cocaine, Amphetamine & Methamphetamine. However, for further identification/confirmation the sample may be forwarded to any other government laboratory, if required. (The bold portion is reproduced as it was mentioned in bold letters in that report). viii) The report in respect of ‘B1-Original’ reads thus - ‘Received one sample packet marked as “B1- Original”. The sample is in the form of white lumps and powder. On the basis of Chemical, Chromatographic and Spectrometric examination the sample under reference answers a positive test for the presence of Cocaine in the sample.

4. After receipt of this report, the application in question 6 of 25 1-apl-1142-23 was preferred by the Respondent No.1 herein before the learned Special Judge, vide M.A.No.1027 of 2023 in R.A.No.380 of 2023. After mentioning the basic facts of seizure and also referring to the report of the DYCC lab dated 30.06.2023, following averments were made in paragraph-7 and 8 as follows: Paragraph-7 reads thus: “Further, it is not clearly mentioned in the lab test reports that the reports are negative for all NDPS substances with respect to samples A-1 and C-1 and the experts of the lab have opined in the report itself that for further identification/ confirmation, the sample may be forwarded to any other Government laboratory, if required.” Importantly, paragraph-8 reads thus: “In view of the aforementioned submissions, the department needs to get the second samples marked as A1- Duplicate and C1-Duplicate drawn before the Ld. Metropolitan Magistrate on 19.04.2023, and presently lying in the godown at New Custom House, analyzed chemically at CRCL, New Delhi. It is humbly submitted that permission may please be granted to forward the duplicate 7 of 25 1-apl-1142-23 samples marked as A1-Duplicate and C1- Duplicate which were drawn during the course of 52-A proceedings in the presence of the Hon’ble CMM, Esplanade, Mumbai for testing to CRCL, New Delhi in light of the Hon’ble Supreme Court judgment in the case of Thana Singh Vs. Central Bureau of Narcotics (Criminal Appeal No.1640 of 2010) and order passed in Union of India Vs Govind (Criminal Revision No.2360 of 2022). Finally, prayer was made as follows: “Permission may please be granted to forward the duplicate samples marked as A1-Duplicate and C1-Duplicate which were drawn during the course of 52-A proceedings in the presence of the Hon’ble CMM, Esplanade, Mumbai for testing to CRCL, New Delhi.” This application was made on 10.07.2023. On this application, the learned Special Judge passed the following order on the same day i.e. on 10.07.2023. “Heard. Perused the report of DYCC. The reserved sample is permitted to be sent to Central Forensic Lab for testing.” This particular order is under challenge in the present 8 of 25 1-apl-1142-23 application. To complete the chronology of events, it needs to be mentioned that the samples i.e. A1-Duplicate and C1-Duplicate were sent to the Central Forensic Science Laboratory (CFSL), at Pune and the report mentions thus: “The exhibits were analyzed by chemical tests and Gas Chromatography-Mass Spectrometry. Based on the above methods the results given as:

1. Diacetylmorphine has been detected in Exhibit Ex-A1-Duplicate.

2. Ex-C1-Duplicate is a sample of cutting agent comprising Phenacetin, Lidocaine and caffeine commonly misused in cocaine trafficking.” This report is dated 08.08.2023. The said report was received by the investigating agency on 17.08.2023. The complaint was filed after completion of the investigation on 13.09.2023. On 18.09.2023, the learned Special Judge took cognizance of the case. The present application challenging the impugned order was filed on 02.09.2023.

5. Mr. Ayaz Khan, learned counsel appearing for the applicant made following submissions: 9 of 25 1-apl-1142-23 i) He referred to the guidelines issued by the Hon’ble Supreme Court in the case of Thana Singh Versus Central Bureau of Narcotics[1]. He submitted that, those guidelines are mandatory and paragraph-25 of the said Judgment mandates that, results of the tests conducted by the concerned laboratory must be furnished to all the parties concerned with the matter. He submitted that, in the present case, the report dated 30.06.2023 was never furnished to the applicant. The applicant is in custody and thus, he was available for service of a copy of that report. The investigating agency has not doubted the genuineness of the test carried out by the DYCC and, therefore, the application for further analysis by a different laboratory was not at all necessary. There were no compelling and exceptional circumstances for sending the other samples to CFSL at Pune. When the application for sending the other samples to CFSL was preferred, neither a copy of the application was served on the applicant, nor the applicant was heard when the application was decided. This has caused serious

1 Criminal Appeal No.1640 of 2010 decided on 23.01.2013. 10 of 25 1-apl-1142-23 prejudice to the accused/applicant. The impugned order is cryptic. No cogent or compelling reasons for sending the other samples to the CFSL are mentioned. The order was passed on the same date. No opportunity was given to the applicant. His say was not even called. ii) Mr. Khan then referred to another Judgment of the Hon’ble Supreme Court in the case of Laxmi Nagappa Koli Versus Narcotic Control Bureau and another[2]. In that case, the Hon’ble Supreme Court had set aside the orders passed by the Special Judge and by the High Court for sending the samples to another laboratory for testing. Mr. Khan submitted that, in the present case also there was no necessity to send the samples to the CFSL. iii) Mr. Khan further relied on another order of the Hon’ble Supreme Court in the case of Karu Lal Versus State of Punjab[3]. In that case, the Hon’ble Supreme Court had held that the State had failed to show any ground to doubt the earlier chemical test of the contraband and no ground was

3 Special Leave to Appeal (Cri) No.7646 of 2013; decided on 16.12.2013. 11 of 25 1-apl-1142-23 given for retesting and re-sampling. Therefore, it was observed by the Hon’ble Supreme Court in that case that the second report which was ordered to be provided without any valid ground, cannot be relied on. iv) Mr. Khan further relied on the order dated 22.06.2017 passed by a Single Judge bench of this Court in Criminal Writ Petition No.697 of 2016; in which, a request made by the State for sending the sample for retesting to CFL at Hyderabad was rejected. It was observed that, there was nothing on record to establish that the test carried out by the Regional Forensic Science Laboratory was not according to the scientific norms. Merely because Central Forensic Laboratory at Hyderabad was equipped with advanced facilities for carrying out the test, that by itself can not be the ground for allowing retesting of samples. Mr. Khan submitted that, the DYCC was also a recognized laboratory and, therefore, there was no reason to send the other samples to CFSL, Pune. 12 of 25 1-apl-1142-23

6. Mr. Munde, learned Special P. P. opposed these submissions. His contentions are as follows: i) The case involves commercial quantity of narcotic drug and, therefore, the investigating agency had 180 days to complete the investigation from 19.03.2023. During that statutory period, the investigating agency had all the powers to conduct the investigation to collect the evidence. Therefore, when the application was made on 10.07.2023 for sending the other samples to CRCL at New Delhi, the investigating agency was well within its rights to conduct further investigation. The investigating agency had complied with the period mentioned in Thana Singh’s case (supra) and after receipt of the first report dated 30.06.2023 on 06.07.2023, immediately within four days i.e. on 10.07.2023 the application for sending the other samples to CRCL, New Delhi was preferred. Thus, the guidelines in Thana Singh’s case (supra) were followed. ii) The complaint was filed on 13.09.2023 after 13 of 25 1-apl-1142-23 receipt of the report from CFSL, Pune and cognizance was taken on 18.09.2023. Therefore, till filing of the complaint the investigation was going on and at that stage the accused had no right to participate or interfere in the investigation. iii) The remand report dated 25.07.2023 refers to the application for seeking permission for sending the duplicate samples for testing and the said remand report also refers to the order permitting the same. Therefore, this stage was not concealed from the accused/applicant and till filing of the present application, no grievance was raised by the accused/applicant. iv) Mr. Munde submitted that the application was made with a specific prayer for sending the samples to CRCL, New Delhi. The learned Special Judge did not accede to that particular request specifically, but permitted the samples to be sent to CFL. The order also mentioned that the learned Special Judge had perused the report of DYCC. This shows that, there was proper application of mind and it was a 14 of 25 1-apl-1142-23 conscious decision. Therefore, it cannot be said that the order is a cryptic order without reasoning. v) Mr. Munde relied on the Judgment of the Calcutta High Court, in the case of Ashfaque Ahamed Versus State of West Bengal[4]. He submitted that, the compelling circumstances set out in the application must be treated to be the reasons for passing the order for retesting. vi) Mr. Munde further submitted that the DYCC report itself mentions that, for further identification/confirmation the sample needed to be forwarded to any other Government laboratory, if required. Therefore, the report of the DYCC was not conclusive and the same report suggests that further confirmation was needed. This is a compelling ground for sending the second set of samples for testing by another laboratory. Mr. Munde submitted that, as of today, the report of the CFSL, Pune is available showing presence of Heroin in the major contraband. This report cannot be ignored and the 4 CRM 954 of 2021; decided on 16.06.2022. 15 of 25 1-apl-1142-23 accused/applicant cannot be granted benefit in such a serious case.

7. In re-joinder to these submissions made by Mr. Munde, Mr. Khan submitted that the Judgment in Ashfaque’s case (supra) was not a binding precedent, as far as, this Court is concerned. He submitted that, Thana Singh’s Judgment (supra) was misinterpreted in the Judgment of the Calcutta High Court in Ashfaque’s case (supra). He further submitted that the DYCC mentioned that the same sample be forwarded to another Government Laboratory. It did not mention that second sample which was available with the investigating agency should be sent to another Government laboratory. Lastly, he submitted that, DYCC was a standard laboratory and the report submitted by that laboratory was admissible U/s.293 of the Cr.P.C.

8. I have considered these submissions in the light of the facts of this case and the judgments relied on by both the sides. Both the learned counsel rightly submitted that, Thana Singh’s Judgment (supra) issued guidelines which were binding on all the 16 of 25 1-apl-1142-23 courts and all the parties. Therefore, it is necessary to refer to certain observations in the said judgment. The said order in Thana Singh’s case (supra) was an outcome of a bail matter in which the accused was in prison for more than 12 years awaiting commencement of his trial for offence under the N.D.P.S. Act. In that context, the Hon’ble Supreme Court considered the plight of all those prisoners and the reasons for delay in conducting those trials. In this background, the Hon’ble Supreme Court issued various guidelines. In paragraph-5, the Hon’ble Supreme Court observed thus: “We lay down the directions and guidelines specified hereinafter for due observance by all concerned as the law declared by this Court under Article 141 of the Constitution of India. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of fundamental rights, especially the cluster of fundamental rights incorporated under Article 21, which stand flagrantly violated due to the state of affairs of trials under the Narcotic Drugs And Psychotropic Substances Act. We would like to clarify that these directions are restricted only to the proceedings under the Narcotic Drugs And Psychotropic Substances Act.”

9. In paragraph-15, the necessity of narcotics laboratories at national level was highlighted. Paragraph-15 in that context is 17 of 25 1-apl-1142-23 important; which reads thus:- “Narcotics laboratories at the national level identify drugs for abuse and their accompanying substances in suspected samples, determine the purity and the possible origin of illicit drugs, carry out drug-related research, particularly on new sources of drugs liable to abuse, and, when required by the police or courts of law, provide supportive expertise in drug trafficking cases. Their role in the effective implementation of the mandate of the Narcotic Drugs And Psychotropic Substances Act is indispensible which is why every state of region must have proximate access to these laboratories so that samples collected for the purposes of the Act may be sent on a timely basis to them for scrutiny. These samples often form primary and clinching evidence for both the prosecution and the defence, making their evaluation by narcotics laboratories a crucial exercise.”

10. In the same context, in paragraph-16 there was a reference to the CFSL at Pune. At that point of time, the said laboratory was being established. As of today, it is functional. The test report in respect of the samples ‘A1-Duplicate’ and ‘C1- Duplicate’ was received from that laboratory as the samples were sent to that laboratory. Thus, as per Thana Singh’s judgment (supra) itself it was highlighted that, existence of CFSL was important and, therefore, the report which is received in the 18 of 25 1-apl-1142-23 present case from CFSL, Pune assumes greater importance.

11. Thana Singh’s Judgment (supra) further refers to retesting provisions in paragraph-23; which reads thus: