Narcotics Control Bureau v. Athar Pervez & Ors.

1. On the complaint (SC 25/13) of the petitioner – Narcotics Control Bureau (NCB) – respondents are facing criminal prosecution in the court of the Special Judge (NDPS) on the accusations of they having committed offences punishable under Section 9-A read with Sections 25-A / 25/22/23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the case primarily being founded on recoveries statedly made on 22.08.2013 of 30 kilograms of pseudoephedrine and 2.[5] kg of Methaqualone followed by another recovery of 24.700 kgs of Methaqualone. The samples of the substance recovered had been sent by the NCB, during the course of its investigation, to Central Revenues Control Laboratory (CRCL) 2018:DHC:7330 on 23.08.2013. The CRCL by its report dated 19.09.2013 gave the following opinion:- “The sample is in the form of off white crystalline powder. On the basis of chemical and chromatographic examinations, the presence of Methaquolone could not be ascertained in the sample under reference. However, for want of characterization facilities, exact identification of sample could not be ascertained, therefore, to rule out possible presence of any narcotic drug and psychotropic substance in the sample, it may be forwarded to CFSL, Hyderabad for its characterization.”

2. The NCB moved the special court by an application seeking permission to seek fresh samples to be sent to Central Forensic Science Laboratory (CFSL). The defence counsel submitted no objection to the prayer of NCB and, thus, the application was allowed by the Special Judge, by order dated 17.10.2013, with suitable directions for the duplicate samples drawn at the spot to be sent to CFSL at Hyderabad for “further analysis”. The CFSL examined the samples and on such basis gave its report dated 10.01.2014 which would confirm that Methamphetamine had been detected in exhibit B- 2 and S-II.

3. Against the above backdrop, the first and fourth respondents moved an application before the Special Judge seeking “retest”. The prayer was resisted by the NCB. The request of the defence, however, was allowed by the Special Judge, by her order dated 11.09.2014, directing that the case property be produced in the court for fresh samples to be drawn out therefrom in the presence of both sides concluding that retesting of the case property had become necessary, taking note, inter alia, of certain background facts as under:

4. Thus, the samples drawn from the seized contraband were sent once again to CRCL. The CRCL, by its report dated 28.11.2014, gave the following opinion:- “CLD 410(N): The sample is in the form of off white crystalline powder. On the basis of physicochemical and chromatographic examinations the presence of Diacetylmorphine (Heroin), Morphine, Ephedrine, Pseudoesphedrine, Ketamine, Cocaine, Amphetamine, Methamphetamine and Methaqualone could not be ascertained in the sample under reference. However, for want of characterization facilities, exact identification of sample could not be ascertained, therefore, to rule out possible presence of any Narcotic drug and psychotropic substances in the sample under reference, it may be forwarded to CFSL Hyderabad for its characterization. Gross wt. of remnant sample returned with plastic pouch = 4.[6] gm.”

5. There is no dispute that the above mentioned report dated 28.11.2014 of CRCL was sent directly to the court. No directions suo motu were issued by the Special Judge in such context. Against this backdrop, the NCB moved application dated 05.02.2015 making yet another request for fresh samples to be sent to CFSL, Hyderabad or any other government lab as the court might deem fit for its testing on the lines suggested in the report dated 28.11.2014 of CRCL.

6. The prayer was resisted by the defence, inter alia, with reference to the decision of the Supreme Court reported as Thana Singh Vs. Central Bureau of Narcotics, JT 2013 (2) SC 407: (2013)2 SCC 590, the prime contention being that yet another round of retesting ought to be discouraged. The Special Judge upheld the objection and rejected the prayer of NCB by his order dated 28.02.2015. By the same order, the prayer of the respondents for release on bail was granted by the special judge.

7. The NCB is aggrieved by the order dated 28.02.2015 rejecting its prayer for the samples to be sent to CFSL, Hyderabad or any other government laboratory for retesting and has thus approached this court by the petition at hand. The respondents reiterate their opposition on the basis of ruling of the Supreme Court in Thana Singh (supra).

8. The quest of criminal process – be it investigative or judicial – is to search for the truth. It was with that objective that the special judge, noting the discrepancies – which were more in the nature of deficiencies in the earlier reports of CRCL and CFSL- had granted the request of the defence by order dated 11.09.2014 for the fresh samples to be drawn and sent to CRCL. The report of CRCL dated 28.11.2014 is again inchoate. While expressing its inability to give a definite opinion “for want of characterization facilities” it suggested the samples to be sent to CFSL, Hyderabad. Undoubtedly, there cannot be indefinite rounds of testing or retesting. The matter has to reach finality some day. But, at the same time, neither side can be allowed to take undue advantage of the confusion that prevails as to the nature or contents of the substance in the face of aforementioned three reports, two of CRCL and one of CFSL.

9. The peculiar facts and circumstances that are presented before the court in the case at hand deserve to be treated as the “extremely exceptional circumstances” in which re-sampling / re-testing can be directed even in terms of the decision of the Supreme Court in Thana Singh (supra). At the cost of repetition, it may be added that defence was not satisfied with the earlier report of CFSL. It is the defence which had sought fresh samples to be drawn and sent to CRCL. If CRCL is unable to give a definitive opinion, the quest for clear opinion as to the nature and contents of the substance which was revived for scrutiny by the defence itself, will have to be taken to the logical end and towards this end, the Special Judge should have allowed the request of the NCB for fresh samples to be drawn and sent, if not to CFSL at Hyderabad, to some other government laboratory where requisite facilities may be available.

10. In the result, the impugned order declining to send the fresh sample of the seized substance to Central Forensic Science Laboratory as was suggested in the report dated 28.11.2014 of Central Revenues Control Laboratory is set aside. The trial court judge is directed to take appropriate steps to have fresh samples sent to appropriate Forensic Science Laboratory of Government with requisite facilities.