The Single Judge of the J&K High Court comprised of Justice Rajnesh Oswal, while setting aside the order of the trail court whereby charges were framed against the petitioners, has held that 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.
In the instant case, Principal Sessions Court, Bandipora had framed charges against the petitioners vide its order dated 15.07.2019 for commission of offence under sections 8, 21 and 29 NDPS Act. It was the plea of the petitioners that FSL report relied upon by the prosecution clearly reveals that the material allegedly recovered from the petitioners is not the brown sugar as alleged in the charge sheet and therefore, no offence under the Act is made out and the charges framed by the learned trial court are bad in law and as such, required to be quashed. The petitioners had also filed bail application which was also considered by the Court along-with the instant petition.
On the contrary, Mr. Sheikh Feroz, Dy.A.G argued that the FSL report does not conclusively determine that no substance as prohibited under the Act has not been recovered from the petitioners. He vehemently argued that the material allegedly recovered from the petitioners be sent for further chemical examination.
The Court while emphasizing the role of a Chemical Analyst observed that the reports submitted by them particularly under the Act should not be vague as the fate of investigation/ trial is dependent upon the said report. The vague report may lead to escape of an offender, who could have been convicted but for the vague and incomplete report. Be that as it may, even the prosecution did not bother to lay any motion before the trial court for retesting of the seized substance particularly when the FSL report was incomplete and not conclusive in nature as to the identity of the recovered material. The prosecution too has failed in its duty to request the trial court for retesting the recovered substance.
The Court noted that:
“12. Once the learned trial court was of view that the identity of the recovered substance was required to be determined, then this Court fails to understand as to how the trial court could have determined the identity of the substance recovered from the petitioners during trial in absence of any retesting. Even in absence of any motion on the part of the prosecution for retesting of the recovered substance, as the accused was not expected to lay a motion for retesting because FSL report was running contrary to the prosecution story, the trial court could have directed the Investigating Officer for retesting the recovered material.”
This Court is of the considered view that the learned trial court has fallen in grave error of law by charging the accused for commission of offences under sections 8, 21 and 29 of the Act in absence of the report of the Chemical Analyst that the substance for which the petitioners are being charged fell within the mischief of the Act.
The Court also referred to the judgment of the Apex Court in Thana Singh v. Central Bureau of Narcotics, reported in (2013) 2 SCC 590 and held that as under;
“15. Thus, the re-sampling/retesting can be resorted to in exceptional cases and though the Hon’ble Apex Court has fixed the time limit for laying any motion for retesting but the time limit was prescribed taking in to consideration the manner in which the applications for retesting were being filed in routine and haphazard manner. So far as instant case is concerned, there is lapse on the part of both FSL expert and the prosecution and this Court cannot ignore the lapses on the part of the Investigating Officer as well as the FSL Expert and the present case can be termed as an exceptional case.”
The Court ultimately set aside the order of the trial court by virtue of which charges were framed against the petitioners and further directed the Investigating Officer to get the seized material retested from the approved Government laboratory having all the facilities of conducting the tests and shall complete the further investigation within a period of 60 days and file supplementary report before the trial court.
In view of the facts, the Court also granted interim bail to the petitioners till the filing of the supplementary report.
Title: Mohammad Afzal Dar And Another vs SSP Bandipora and Another.
Coram: Justice Rajnesh Oswal.
Counsels: Mr. Ahmad Javid, Advocate for petitioners.
Mr. Sheikh Feroz, Dy. A. G for the respondents.