Sunday, 5 July 2015

Whether re-testing of sample is permissible under NDPS Act?

Anyway, the main contention advanced by Mr. H.H. Ponda is that after receipt of the Dy. CC report, the act of sending samples SA2, SB2 and SC2 to CFSL Hyderabad on 12/12/2012 without obtaining orders from the trial court is per-se illegal. In support of this contention, he has relied upon the judgment of the Supreme Court of India in Thana Singh Vs. Central Bureau of Narcotics, MANU/SC/0054/2013: 2013 (2) SCC 590. Indeed, in that case, Their Lordships of the Supreme Court of India gave certain directions and guidelines to be followed during the trials of offences under the NDPS Act, in relation to a number of aspects. Their Lordships, inter alia, dealt with and went on to define the 're-testing rights'. Their Lordships observed : "the NDPS Act itself does not permit re-sampling or re-testing of samples. Yet there has been a trend to the contrary, and that the NDPS Courts have been consistently obliging to applications for re-testing and re-sampling". It was also observed that the NDPS Courts were permitting re-testing by taking recourse to either some High Court judgments or sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. Their Lordships thought it imperative to define re-testing rights, if at all, as an amalgamation of the factors mentioned by Their Lordships in paragraph no. 24 of the reported judgment. It would be appropriate to reproduce the directions in that regard given in paragraph no. 27 of the reported judgment.
"Therefore, ............ ...... ....... we direct that, that after the completion of necessary tests by the laboratories concerned, 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"
(Emphasis supplied)

(Amended as per order dt.11/02/2015)

Shailesh Kanada,


Intelligence Officer,

 Pronounced    :  9th  FEBRUARY 2015
Citation: 2015ALLMR(Cri)1665, 2015(2)BomCR(Cri)22, 2015(2)BomCR(Cri)393

These two applications can be conveniently disposed 
of   by   this   common   order   as   the   applicants   in   both   these 
applications   are   accused   in   one   and   the   same   case   i.e.   NDPS 
Special   Case   No.51/13   pending   before   the   Special   Court   for 
Narcotics cases at Mumbai, and the contentions raised are also the 

The applicant ­ Shailesh Kanada (APL 56/14) is the 
accused No.3 while the applicant ­ Kailash Rajput (APL 221/14) is 
the accused No.2 in the said case.  By these applications, invoking 
the inherent powers of this Court, the applicants pray that their 
prosecution vide the said case be quashed.  In the alternative, the 
applicants   pray   that   the   order   of   cognizance   as   passed   by   the 
learned Judge of the Special Court be quashed and set aside, and 
that, by quashing and setting aside the order of the dismissal of 
their application for discharge as done by the learned Judge of the 
Special Court, the applicants be discharged from the said case.

The facts of the case, that it would be necessary to 

applicants, are, in brief, as follows :
know   in   order   to   understand   the   contentions   put   forth   by   the 
That, the officers of the Customs Air Intelligence Unit 
(respondent   No.1)   acting   on   prior   information,   intercepted   and 
seized   three   courier   parcels   at   the   Export   Hall   of   the   Courier 
Terminal, Airport Mumbai at about 2.00 Hours on 26/09/2012. 
The said parcels had been booked by M/s. M.A.Express Logistics 

by using the License of M/s. Swift Clearing Agency (India) Private 
Limited destined for London.  The said three courier consignments 
had been packed in three separate cartoons having their respective 
Air   Weigh   Bill   Numbers   Shipper   and   Consignee.     That,   the 
consignments were containing 10 packets each of Foodstuffs, Tea 
and Detergent in printed item packets. Thus, there were totally 30 
packets.  On opening out all the said 30 packets, each packet was 
found   to   be   containing   another   silver   pouch,   containing   white 
crystalline   substance.     The   said   substance   was   tested   with   the 
Narcotic Detection Kit and it was found to be  Methaqualone  – a 
Psychotropic   substance.     The   said   substance   –   said   to   be 
Methaqualone  –   weighed   14.9   kg.     It   was   seized   under   a 
panchanama.     Three   samples   of   5   grams   each   from   every 
consignment were taken, and numbered as SA1, SA2, and SA3; 
SB1, SB2 and SB3; SC1, SC2 and SC3.
The other details with respect to the investigation and 
arrest of the applicants and the other accused i.e. Accused no.1 Ali 
Asgar   Shirazi   and   accused   No.4   ­   Sanjay   Tamane   need   not   be 

mentioned here, and a mention of few relevant events and dates 
The   applicant   Kailash   Rajput   (Criminal   Application 
would suffice. 
No.221/14) was arrested on 23/10/2012. The applicant Shailesh 
Kanada (Criminal Application No.56/14) was placed under arrest 
on 21/12/2012.     The accused no.1 Ali Asgar Shirazi was placed 
under   arrest   on   15/10/2012,   while   the   accused   No.4   ­   Sanjay 
Tamane was arrested on 23/10/2012.   Investigation was carried 
out.     The   statements   of   the   witnesses,   as   also   of   the   accused 

persons were recorded in the course of investigation.  
On   10/04/2013,   the   complaint   vide   N.D.P
Case No.51 of 2013 came to be filed  alleging that the applicants 
and the other accused had committed offences punishable under 
Section 29 read with Section 8­C and Section 22, and Section 22 
read   with   Section   8­C   of   the   Narcotic   Drugs   and   Psychotropic 
Substances   Act   1985   by   acquisition   and   possession   of 
Methaqualone  powder  which was a psychotropic substance.   On 
12/04/2013,   the   learned   Judge   of   the   Special   Court   took 
cognizance of the alleged offences on the basis of the allegation 
that  the  seized  substance   was   Methaqualone,  though  no  report 
from Chemical Analyzer in that regard was available.  
The   contention   of   the   applicants   is   that   their 
prosecution vide the said case is not in accordance with law.   This 
needs to be understood and examined in the light of the following 
undisputed facts.

The   complaint  has  been   filed  on  the   claim   that  the 

contraband   involved   was  Methaqualone  and   that   this   was 
supported by the result of examination done with the help of Field 
Testing Kit.  The complaint proceeds on the basis that the samples 
marked SA1, SB1, SC1 were sent to the Deputy Chief Chemist on 
08/10/2012   and   the   report   received   from   Dy.Chief   Chemist 
indicated   that   'for   exact   identification   of   the   sample,   more  
instrumental analysis, by I.R. Spectroscopy was required which was  
not   available   with   Dy.Chief   Chemist's   Officer   and   so   the   samples  

might   be   forwarded   to   the   Central   Forensic   Science   Laboratory,  
Hyderabad   (for   short,   'CFSL')'.     That,   the   samples   had   been 
forwarded   to   the   CFSL   on   14/12/2012.     Though   efforts   were 
made   to  get  the   Test  Report  from  CFSL   from   time   to  time,  the 
reports   could   not   be   obtained   till   the   time   of   filing   of   the 
complaint.  The complaint also mentions that even the Court had 
written a letter to the CFSL for speedy dispatch of the Test Report, 
but the Test Report was not received till the time of filing of the 

When   the   complaint   was   filed   in   the   Court   on 
10/04/2013, and when the question of taking cognizance of the 
alleged offences arose on behalf of the applicant, an objection was 
taken to the taking of cognizance, as is apparent from the order 
taking cognizance, itself.  It was contended that in the absence of 
the report from the CFSL, there was no prima facie case against the 
applicants and the other accused.   The contention of the learned 
Special Public Prosecutor, who appeared before the Special Court 
was   that   the   report   of   the   Field   Testing   Kit   indicated   the 

substances seized to be  
  and that this was 'sufficient
for taking cognizance of the alleged offence'.  The learned Judge of 
the Special Court, inter alia, observed that at the stage of taking of 
cognizance,   the   report   of   Field   Testing   Kit   could   be   taken   into 
consideration.     The   learned   Judge   categorically   held   that 
cognizance  could be taken  and was being taken in the absence of  
report of CFSL.
It appears that the applicants and the other accused 
then sought discharge from the Special Court.   The main ground 
was the absence of the Chemical Analysis Report to support the 
allegation of the substance being Methaqualone.  It appears that, at 
that time, bail applications  filed by the accused persons  were also 
pending.     It   appears   that   in   the   midst   of   the   arguments,   the 
learned   Special   Public   Prosecutor   in­charge   of   the   matter, 
informed that the report of CFSL, Hyderabad was ready and would 
be   filed.     Accordingly,   an   adjournment   was   granted   and   the 
Chemical Analysis Report came to be filed.  It was on 14­06­2013. 
This  report  indicated   that  Ketamine  was  detected   in   the   sample 
SA/2 and  Methamphetamine  was detected in Samples   SB/2 and 
After   this   twist   in   the   matter,   it   was   contended   on 
behalf of the applicants that the Court had taken the cognizance of 
the alleged offence on the basis that the substance in question was 
Methaqualone;   and since the CA Report did not support the said 
case of the complainant, there was no option for the Court, but to 
discharge   the   accused   persons.     The   learned   Special   Public 
Prosecutor   contended   that   even   though   the   CA   Report   did   not 
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speak   about  Methaqualone,   it  spoke   about  Ketamine  and 
Methamphetamine,   which   substances   were   also   psychotropic 
substances; and that acquisition and possession of  Methaqualone 
the same provisions of the N.D.P
as well as  Ketamine  and  Methamphetamine  are punishable under 
A   question   of   entitlement   of   the   accused   to   be 
released   on   bail   in   accordance   with   the   provisions   of   the   first 
proviso to Sub­Section (2) of Section 167 of the Code of Criminal 
Procedure (for short, 'the Code') was also raised before the Special 
Court.     It   was   pointed   out   that   one   of   the   applicants   was   in 
custody for a period of more than 180 days, but no complaint had 
been   filed   with   respect   to   the   possession   of  Ketamine  and 
Methamphetamine.     The   learned   Judge   of   the   Special   Court 
observed that the point that arose was 'peculiar and rare' 'requiring  
due consideration'.  Ultimately, however, by elaborate reasoning, he 
rejected the  application  for discharge, as well as application for 
release on bail.  He was of the view that the report from the CFSL 
could be taken into consideration at the time of framing of charge. 
The applicants, thereafter, had approached this Court 
also for bail, but they did not succeed.
I have heard Mr.H.H. Ponda, learned counsel for the 
applicant Shailesh Kanada (Application No.56/14) and Mr.A.H.H. 
Ponda,   the   learned   counsel   for   the   applicant   Kailash   Rajput 
(Application   No.221/14).     I   have   heard   Mr.S.K.Shinde,   learned 
Public   Prosecutor   with   Ms.Rebecca   Gonsalves,   counsel   for   the 
respondent no.1.   I have heard Ms.S.S.Kaushik, learned APP for 
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the State.  I have carefully gone through the applications, and the 
The situation in which the applicants and the  other 
annexures thereto.
accused (and even the prosecution –  for that matter) are placed, 
is rather peculiar. The complaint that has been filed against them 
is   on   the   allegation   that   the   substance   in   question   was 
Methaqualone.     Though there was no Chemical Analyser's report 
stating that the substance seized was Methaqualone, and though it 
was   contended   by   them   that   therefore,   the   cognizance   of   the 
alleged offence could not have been taken, the learned Judge of 
the Special Court did take cognizance relying on the report of the 
examination with the help of Field Testing Kit. Since the report 
from the CFSL, Hyderabad indicates the substance to be Ketamine 
and  Methamphetamine,   the   result   of   the   Field   Testing   Kit   is 
admittedly,   wrong.     Once   this   is   so,   what   is   to   be   done   of   the 
complaint filed with respect to  Methaqualone –  the cognizance of 
which was taken on the basis of the result of the examination of 
the substance done by Field Testing Kit, is not easy to determine. 
The complaint can no more support this claim which is admittedly 
incorrect.  However, the complaint still proceeds on that basis.  So 
far   as   the   substance  Ketamine  and  Methamphetamine  are 
concerned, no complaint against the applicants with respect to the 
possession   or   conspiracy   to   export   those   substances   has   been 
lodged till date.   Thus, what is said in the complaint – about the 
identity of the substance – is wrong. 
There   is   undoubtedly,   something   wrong   about   the 
prosecution.     However,   the   matter   may   be   left   at   that   for   the 
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present, as the main contention raised by the applicants is quite 
different.     In   the   circumstances,   it   would   be   proper   to   come 
straight to it.
The main contention advanced by Mr.H.H. Ponda, the 
learned counsel for the applicants, is that, sending the second set 
of samples for re­testing to the CFSL, Hyderabad, was contrary to 
law and not permissible.   He submitted that, even otherwise, the 
basis on which the sending of the samples for re­testing is sought 
to be justified, is also wrong, inasmuch as the circumstances put 
forth by way of justification for adopting such a course, did not 
It cannot be lost sight of that, as per the complaint 
itself, the claim that the substance in question was a psychotropic 
substance   was   made  only  on   the   basis   of   the   result   of   the 
examination of the substance by the Field Testing Kit.  That, there 
was   no   report   in   respect   of   Chemical   Analysis   of   the   said 
substance, was made clear in the complaint.   For understanding 
how the absence of the report from Chemical Analyser was sought 
to be explained, it   would be appropriate to reproduce here the 
relevant part of the complaint. 
“The samples SA1, SB1 and SC1 were sent 
to   Dy.CC   on   8.10.2012.     Test   reports   were 
received from Dy.CC stating that the samples are 
in   the   form   of   white   crystalline   powder.     It   is 
composed   of   Hydrochloride   salt   of   Nitrogen 
bearing   organic   compound.  
  For   exact 
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instrumental   analysis   like   IR   Spectroscopy   is 
required which is not available here at present. 
Therefore,   sample   may   be   forwarded   to   CFSL, 
identification   of   the   samples   U/R   more 
Samples   were   forwarded   to   CFSL, 
Hyderabad on 14.12.2012.   Efforts were made to 
get the Test Reports from the CFSL, Hyderabad 
from time to time.   CFSL, Hyderabad informed 
that this office would be intimated as and when 
the Test Report would be ready.   It may also be 
mentioned   that   even the  Hon'ble  Court  directly 
wrote   a   letter   to   CFSL,   Hyderabad   for   speedy 
dispatch   of   Test   Report   in   the   instant   case, 
however, Test Report was not received till date” 
(Para 38)
Thus, according to the version in the complaint, the 
result of the test done by Dy.C.C was 'inconclusive', and that, that 
is why the samples were forwarded to CFSL. 
In   this   regard,   it   is   contended   on   behalf   of   the 
applicants   that   the   report   received   from   Dy.C.C   was   not, 
'inconclusive'   as   falsely   suggested   in   the   complaint,   and   that 
actually, the report was negative for Methaqualone. In other words, 
the  contention  is that the  assertions made  in  the  complaint are 
misleading, and actually the report received from Dy.C.C indicated 

that   the   substance   in   question   was        Methaqualone   It   is 
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contended that the Court was misled as the data sheets in respect 
of the samples analysed by the Dy.C.C had not been filed along 
with the complaint, and that, they were not before the Court when 
it   purported   to   take   cognizance   of   the   alleged   offences.     It   is 
further   submitted   that,   in   these   circumstances   –   and   even 
otherwise  –  it  was   not  permissible   for  the   complainant   to  have 
forwarded   the   samples   to   the   CFSL   without   the   permission   or 
order to that effect from the Court.  
In view of the contentions raised, it would be proper 
to first examine whether  the Dy.CC had not been able to analyze 
the   samples   and   give   any   opinion,   or   whether,   after   having 
performed the necessary tests, had given a 'negative report' – so to 
say – with respect to Methaqualone.
The   correctness   of   the   contention   advanced   by 
Mr.H.H.Ponda   that  when   the   trial   Judge   took   cognizance   of   the  
alleged offences by an order dated 12th  April 2013, data­sheets in  
respect   of  the   samples  analyzed   by   the   Dy.C.C  had   not  been   filed  
along with the complaint, is not in dispute.  The  said data­sheets 
were, admittedly, subsequently received and marked as Exhibit­5. 
It is contended that the data­sheets clearly show that the samples 
were thoroughly analyzed by the Dy.C.C.  My attention is drawn to 
the findings of the Thin Layer Chromatography (TLC) test that had 
been  carried out in  two  different systems 'A' and 'B', which are 
noted in the data­sheets as follows :­
“The sample u/r as well as standard sample of 
methqualone   in   methanol.     The   TLC   spot   of   the 
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sample   obtained   in   the   above   systems  is   not 

comparable with that of the standard     ethaqualone
(emphasis supplied)
Mr.H.H.   Ponda,   by   relying   upon   the   information   in 
''Forensic   Science   in   Criminal   Investigation   and   Trials”   by 
B.R.Sharma   (Fourth   Edition)   [published   by   University   Law 
Publishing Co.Ltd (page 24)] submitted that the procedure of Thin 
Layer Chromatography is to place the sample on one side and pure 
Methaqualone  on   the   other   hand   on   a   silica   gel   plate   having   a 
particular   solvent   system.     That,   both   the   sample   and   the   pure 
Methaqualone  travel a particular distance.   The distance travelled 
from the base to the spot is measured and compared, and on that 
basis, the result is given.   According to Mr.Ponda, in the present 
case, the very fact that it is mentioned that 'the TLC  spot of the 
sample obtained in the above systems is not comparable with 
that   of   the   standard  Methaqualone  used'   means   that   the   two 
spots were not at the same level.  According to him, therefore, it 
could easily be inferred from the said report that the substance 
was not  
There seems to be substance in this contention which 
was not even attempted to be dealt with or refuted by the learned 
Special Public Prosecutor.  
Anyway,   the   main   contention   advanced   by   Mr.H.H. 
Ponda is that after receipt of the Dy. CC report, the act of sending 
samples SA2, SB2 and SC2 to CFSL Hyderabad on 12/12/2012 
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without obtaining orders from the trial court is  per­se  illegal.   In 
support of this contention, he has relied upon the judgment of the 
Supreme Court of India in  Thana Singh Vs. Central Bureau of  
Narcotics,   2013   (2)   SCC   590.    Indeed,   in   that   case,   Their 
Lordships of the Supreme Court of India gave certain directions 
and guidelines to be followed during the trials of offences under 
the NDPS Act, in relation to a number of aspects.  Their Lordships, 
inter alia, dealt with and went on to define the 're­testing rights'. 
Their Lordships observed : “the NDPS Act itself does not permit re­
sampling or re­testing of samples.   Yet there has been a trend to 
the   contrary,   and   that   the   NDPS   Courts   have   been   consistently 
obliging to applications for re­testing and re­sampling”.     It was 
also observed that the NDPS Courts were permitting re­testing by 
taking recourse to either some High Court judgments or sections 
79   and   80   of   the   NDPS   Act   which   permit   application   of   the 
Customs Act, 1962 and the Drugs and Cosmetics Act, 1940.  Their 
Lordships thought it imperative to define re­testing rights, if at all, 
as an amalgamation of the factors mentioned by Their Lordships in 
paragraph   no.24   of   the   reported   judgment.     It   would   be 
appropriate   to   reproduce   the   directions   in   that   regard   given   in 
paragraph no.27 of the reported judgment. 

“Therefore,   ............   ......   .......   we   direct 
that,   that   after   the   completion   of   necessary 
tests by the laboratories concerned, results of 
the   same   must   be   furnished   to   all   parties 
concerned with the matter.  Any requests as to 
re­testing/re­sampling shall not be entertained 
under   the   NDPS   Act   as   a   matter   of   course. 
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exceptional   circumstances, 
for   cogent 
reasons   to   be   recorded   by   the   Presiding 
These may, however, be permitted, in extremely 
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/re­sampling   shall   be   entertained 
thereafter.     However,   in   the   absence   of   any 
compelling   circumstances,   any   form   of   re­
testing/re­sampling is strictly prohibited under 
the NDPS Act”  
(Emphasis supplied)
Based   on   this,   Mr.Ponda   contended   that   sending   of 
the samples for re­testing without the permission of the trial court 
would be  per­se  illegal, and therefore, the evidence obtained by 
sending   samples   for   re­testing   in   violation   of   the   aforesaid 
directions cannot be made the basis for prosecuting the applicants 
and other accused.
It   was   contended   by   the   learned   Special   Public 
Prosecutor that the relevant observations have been made in the 
context of the applications for re­testing that are received from the 
accused   persons,   and   would   not   be   applicable   where   the 
prosecution decided to have such re­testing.
This contention does not appear to be correct.  In the 
first   place,  these   are  not   mere   observations   but  'Directions'.     In 
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following clear :­
“We   lay   down   the   directions   and   guidelines 
para 6 of the reported judgment, Their Lordships have made the 
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 NDPS Act” 
(Emphasis supplied)
The   directions   given   by   Their   Lordships   in  Thana   Singh's  case 
(supra) cannot be construed as applicable only in cases where the 
re­testing   is   sought   by   the   accused.     There   is   nothing   in   these 
directions – or even in the other parts of the judgment in  Thana 
Singh's  case (supra) – to indicate that they were not intended to 
be applicable where re­testing is sought for by the investigating 
agencies.    In this context, a reference may be made to a decision 
of   the   Punjab   and   Haryana   High   Court   in   the   case   of  Karan 
Kakkar Vs. Union Territory of Chandigarh,  (Crl. Misc. No. M­
19025/2013   decided   on   3/10/2013),  which   has   been   relied 
upon by the learned counsel for the applicants.   In that case, the 
order passed by the Judge of the Special Court, Chandigarh vide 
which the sample of the narcotic drug was directed to be sent for 
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re­testing   at   the   instance   of   the   Investigating   Agency,   was 
challenged before the High Court by filing a petition under section 
482   of   the   Code.     The   Punjab   and   Haryana   High   Court,   after 
considering the decision of the Supreme Court of India in  Thana 
Singh's case (supra) held, that the order of permitting re­testing of 
the   samples   was   bad.     There   were   several   other   issues   raised 
before the High Court, but what is relevant in the context of the 
argument   advanced   by   the   learned   Special   Public   Prosecutor   is 
that   the   re­testing   of   the   samples   at   the   instance   of   the 
investigating/prosecuting   agency,   was   also   held   to   be   bad. 
Therefore,   the   contention   that   the   observations   made   by   the 
Supreme Court of India in  Thana Singh's  case would apply only 
when an accused makes an application for sending a sample for 
re­testing, cannot be accepted.
In this case, the samples were sent without obtaining 
any orders from the trial court.  This, in any case, does not seem to 
be legal, permissible or justified.
A   feeble   attempt   has   been   made   by   the   learned 
Special Public Prosecutor in his oral arguments to come out of the 
rigours of the directions given and the observations made by Their 
Lordships   of   the   Supreme   Court   of   India   in   the   aforesaid   Case 
Thana Singh  (Supra).   It is contended that what was done was 
not 're­testing', but only 'a continuation of the original testing' as 
the report from the Dy.C.C itself mentioned that the 'samples may 
be forwarded to CFSL, Hyderabad'.  It is not possible to accept this 
contention.  Interestingly, as pointed out by Mr.H.H.Ponda, though 
the   remnants   of   the   samples   sent   back   by   the   Dy.   C.C   were 
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sufficient to carry out the analysis, it was not that the very same 
samples   were   forwarded   to   the   CFSL.   It   was   the   other   set   of 
samples   that   was   forwarded   to   the   CFSL,   Hyderabad.     The 
contention that there was no re­testing in this case and that what 
was done was a mere continuation of the initial testing, has no 
It may be observed that in the aforesaid case of Karan 
Kakkar   (supra),  inspite   of   permission   of   the   trial   court   having 
been taken for sending the samples for re­testing, such re­testing 
was held to be not permissible, as it had been done without giving 
any notice to the accused persons, and as it was not in conformity 
with the requirements laid down by the Supreme Court of India in 
the aforesaid case of Thana Singh (supra).  In this case, obviously, 
the situation is worse inasmuch as no permission at all from the 
Court, was sought for.
Mr.Ponda   submitted   that   the   act   of   sending   the 
samples  for   re­testing,   without  obtaining  permission   of  the   trial 
court, is contrary even to the standing instructions issued by the 
Director General of Narcotic Control Bureau, New Delhi.   He has 
drawn   my   attention   to   the   instruction   at   1.21   in   the   standing 
instruction   no.1/88   issued   by   the   Director   General   of   NCB,   a 
reading   of   which   leaves   no   manner   of   doubt   that   sending   the 
duplicate sample for re­testing has been contemplated only on the 
trial court passing an order for a second test.   Thus, a situation 
where the sample would be sent for re­testing without the order or 
permission   from   the   trial   court   to   that   effect   is   not   at   all 
contemplated; and this speaks for itself.
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With respect to the  aspect of re­testing, the  learned 
Special P
.P placed reliance on a decision rendered by the learned 
Single Judge of this Court in CRA No.424/09 decided on 30th July 
2009 in support of a proposition that 'the provisions of the NDPS 
Act  prima   facie  do   not   indicate   any   absolute   bar   for   the 
prosecution sending samples to two different laboratories'.  In the 
first   place,   this   finding   is   tentative,   as   observed   by   the   learned 
Judge herself in the order that came to be passed while dealing 
with   an   application   for   permission   to   go   abroad   during   the 
pendency of the trial.  Moreover, this decision has been rendered 
before   the   judgment   in   the   case   of  Thana   Singh  (supra)   was 
pronounced,   and   in   view   of   the   observations   in  Thana   Singh's 
case   (supra),   insofar   as   they   indicate   that   re­testing   of   samples 
cannot normally be done – (and if at all) can be done only under 
certain circumstances – also mentioned in the said judgment – no 
assistance   can   be   derived   by   the   prosecution   from   the   said 
judgment.   The learned Special Public Prosecutor also relied on 
another   judgment delivered  by another  learned  Single  Judge  of 
this   Court   in   Writ   Petition   No.2911   of   2009   decided   on   4 th 
February 2010.  Even this decision was rendered before the legal 
position was pronounced by the Supreme Court of India in Thana 
Singh's  case.    Moreover,   in   that   case,   the   sample   had   been 
forwarded to another laboratory for re­testing by an order of the 
Court.  From the observations made by the learned Single Judge in 
paragraph no.20 of the order, it appears that the learned Judge 
made a distinction between cases where re­testing was done after 
obtaining an order from the Court, and re­testing done without 
obtaining any order whatsoever from the Court.   In any case, as 
observed earlier, after the pronouncement of law by the Supreme 
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Court in the aforesaid case of  Thana Singh, the observations, if 
judgments of any High Courts, would no longer hold good.
any, contrary to the legal position explained therein, found in the 
After carefully considering the observations made in 
the aforesaid case of  Thana Singh, the relevant provisions in the 
NDPS  Act,   and  the   standing   instructions   issued   by   the   Narcotic 
Control Bureau,  I am of the opinion that the act of sending the 
samples for re­testing to the CFSL, Hyderabad, without obtaining a 
not warranted by law.
After coming to the conclusion that the sending of the 

permission or order from the Judge, Special Court, was illegal and 
samples   for   re­testing   was   contrary   to   the   law   declared   by   the 
Supreme   Court   in  Thana   Singh's  case   (supra),   and   even   the 
standing instructions issued by the Narcotic Control Bureau, the 
question   that   arises   is   whether   the   prosecution   against   the 
applicants   should   be   permitted   to   be   continued.    It   must   be 
noticed   that   the   position   as   of   today   is   that   the   complaint   still 
alleges that the substance in question was methaqualone, and that 
it was supported by the result of the examination of the substance 
done with the help of Field Testing Kit.  
It is now obvious and conceded that the results of the 
tests   done   with   the   help   of   Field   Testing  Kit   are   incorrect;   and 
today   it   is   nobody's   case   that   the   substance   in   question   was 
Methaqualone.   These results, therefore, cannot be –   and have not  
been – relied upon.  The prosecution is now placing reliance on the 
results received from the CFSL, Hyderabad – as is evident from the 

stand taken before the Special Court, while opposing the prayer 
for   discharge   and   also   before   this   Court   during   the   present 
proceedings.  However, the complaint continues to be on the basis 
that the substance in question is Methaqualone.
The learned Special P , perhaps being unable to deal 
with   the   contentions   raised   by   the   learned   counsel   for   the 
applicants specifically and directly, mainly emphasized that similar  
contentions were raised by the applicants previously, while seeking  
bail, but that the said contentions were rejected by this Court.    He 

emphasized this aspect of the matter not directly, but by making a 
reference to the decision of the Supreme Court of India in Kalyan  
Chandra   Sarkar   Vs   Rajesh   Ranjan   2005(2)   SCC   42,  and 
suggested that the applicants cannot be allowed now to raise the 
same grounds and same contentions.
I have, therefore, considered whether the points that 
are   canvassed   in   the   present   applications   were   already   raised 
before this Court, and have been dealt with by this Court. I am 
unable to hold so.  That the contentions have been dealt with by 
this   Court   earlier,   is   claimed   on   the   basis   that   in   the   bail 
applications   filed   by   the   applicants   which   were   rejected   by   this 
Court,   some   grounds   that   have   been   raised   now,   were   already 
raised.   I have therefore, carefully gone through the order dated 
18th  February   2014   whereby   the   bail   applications   of   applicant 
Kailash Rajput and other two accused in the case were rejected.  It 
appears that those applications had been made on the ground that 
the said applicants were entitled to be released on bail under the 
provisions of section 167(2) of the Code as no complaint had been 

filed against them with respect to the facts alleged, though they 
had been remanded into custody for a period of more than 180 
days.  The applicants' contention as raised before the Court was as 
follows :­
That   the   applicants   were   accused   of   having 
possessed   Methaqualone,   and   that,   that   the 
substance   in   question   was   Methaqualone,   was   a 
claim said to have been supported by the result 
of   examination   done   on   the   Field   Testing   Kit. 

The   case   against   the   applicant   was   that   the 
reports from the Dy.C.C were 'inconclusive', and 
that   report   in   respect   of   the   other   set   of 
samples   that   had   been   forwarded   to   the   CFSL, 
Hyderabad   had   not   been   received.      Instead   of 
waiting for the said report, the complaint came 
to be filed.   That when the report came, it was 
revealed   that   one   of   the   samples   indicated 
positive   for  Ketamine,   and   the   remaining   two 
indicated positive for Methamphetamine.    Thus, 
a   peculiar   situation   arose   viz:­   'that   the 
complaint   alleged   the   contraband   to   be 
Methaqualone,   and   the   accused   were   being 
prosecuted on that basis, but the only material 
before   the   Court   indicated   the   substance   in 
question   to   be  Ketamine  and  Metamphetamine'. 
The   argument   was   that   there   had   been   no 
complaint   in   respect   of
Metamphetamine.  It is on this basis it was claimed that since a 
complaint   had   not   been   filed   with   respect   to   the   substances   – 
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Ketamine  and Metamphetamine  ­­   the investigation ought to be 
treated as incomplete.   It was thus claimed that in  view of  the 
provisions   of   section   167(2)   of   the   Code,   the   applicants   were 
entitled to be released on bail.   This Court (Coram A.R.Joshi, J) 
took a view that cognizance had already been taken by the Special 
Court   with   respect   to   the   allegation   of   the   substance   being 
Methaqualone,   and   though   later   on,   it   was   revealed   that   the 
substance   was   Ketamine  and   Metamphetamine,   these   substances 
were   also   psychotropic   substances   punishable   under   the   same 
provisions of NDPS Act as in case of  Methaqualone.     Based on a 
decision   of   this   Court   in  Rafael  Palafox   Garcia   Vs  Union   of  
India, (2008) 110 Bom.L.R,   wherein it was held that cognizance 
of  the   alleged   offence   could  be  taken   even   without   a   Chemical 
Analyser's   report,   and   only   on   the   basis   of   the   findings   of   the 
examination   with   the   help   of   Field   Testing   Kit,   the   bail 
applications were rejected.
Some   of   the   grounds   urged   in   the   said   bail 
applications   might   be   relevant   in   the   context   of   some   of   the 
aspects of the matter which are being dealt with in the present 
applications, but what needs to be clearly understood is  that the 
legality or validity of the act of sending the samples for re­testing 
was   never   challenged   before   this   Court   during   those   bail 

applications.     The   contention   that   
 there   was   a   prohibition   for
sending   samples   for   re­testing   except   under   certain 
circumstances,   and   that   no   such   circumstances   existed   and 
further,   that   in   any   case,   samples   could   not   be   sent   for   re­

testing  without   an   order   of   the   Court  was   never   taken
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during those  proceedings.   In any case, no such contention  has 
been dealt with in the order rejecting the bail applications.  What 
also needs to be kept in mind is that the contention that 'the Dy.CC  
report was not 'inconclusive', but was 'negative', was also neither  
advanced, nor dealt with by the Court while dealing with the Bail  
Applications.     Therefore,   the   points   that   have   been   raised   now 
require the entire case to be viewed in a different context, and in a 
different   perspective.     The   question   now   is   no   more   only   with 
respect   to   the   release   of   the   applicants   on   the   basis   that   the 
investigation was not complete.  I therefore, find no substance in 
the suggestion – as implicit from the fact that reliance has been 
placed in the case of Kalyan Sarkar (supra) – that a consideration 
of the contentions advanced by the applicants would amount to a 
review of some previous observations made by this Court while 
rejecting the bail applications.
Having   held   that   the   action   of   the   Investigating 
Agency in sending the samples for re­testing without obtaining any 
order from the Court, and even without giving any intimation to 
the Court, was clearly contrary to law and unjustified, the question 
that remains is whether the prosecution against the applicants is 
liable   to   be   quashed   on   that   ground   by   exercising  the   inherent 
powers of this Court.
The   inherent   powers   of   this   Court   saved   by   section 
482 of the Code, are plenary.  The powers have no limit once the 
conditions required for exercise of such power, exist. The inherent 
powers are to be exercised to prevent the abuse of the process of 
any  Court, or  otherwise  to  secure  the  ends of  justice.  They are 
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meant   to   be   used   when   the   proceedings   initiated   are   not 
There   is   undoubtedly,   a   manifest   defect   in   the 
prosecution   of   the   applicants   inasmuch   as   the   same   cannot 
succeed without establishing that the substance in question was 
psychotropic substance, and this aspect may be proved only if the 
report received from the CFSL, is taken into consideration.  If the 
report obtained from the CFSL by doing re­testing of a second set 
of the samples without the leave of the trial court, and clearly in 
contravention of not only the law declared by the Supreme Court 
of India, but also the aforesaid 'standing instructions'  is permitted 
to   be   the   basis   for   the   prosecution   of   the   applicants   and   other 
accused, that would render the law declared by the Supreme Court 
of India, meaningless.   Such a course, therefore, does not appear 
to   be   permissible.     However,   even   then,   I   have   examined   the 
matter   further   from   the   point   of   view   of   fairness   of   the 
proceedings against the applicants.   The question is whether the 
manner in which the applicants have been dealt with – and are 
being dealt with – is fair, just or reasonable.  
In   my   opinion,   the   proceedings   have   been 
thoroughly unjust and unfair for a number of reasons.
In the first place, the data­sheets in respect of 
the examination/analysis of the samples done in the office of the 
Dy.C.C   were   not   submitted   along   with   the   complaint,   and   an 
impression   was   given   to   the   Court   that   the   report   was 
'inconclusive'.  The relevant part of the complaint has already been 
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reproduced earlier.   The data­sheets were subsequently produced 
and they show that a thorough analysis in respect of the samples 
was done in the laboratory of the Dy.C.C.  Indeed, the remarks in 
the data­sheets which have been reproduced earlier, show that the 
conclusion   drawn   by   the   Dy.C.C   was   that   the   substance   in   the 
samples was  not comparable with that of standard   

used.  The words 'not comparable', do not indicate that the analyst 
was unable to give  an opinion whether or not the substance in 
question was Methaqualone.    The use of these words in the light 
of the technique of Thin Layer Chromatography Test, as discussed 
earlier, leads to an inference that the conclusion that was arrived 
at  was that the  substance  was  not  Methaqualone.     The  correct 
position appears to be  that the substance was opined to be not 
Methaqualone,   though   what   it   was   could   not   be   exactly 
identified; and therefore, it what was suggested that the same 
be forwarded to the CFSL, Hyderabad for 'exact identification'. 
Taking   advantage   of   this   part   of   the   report,   an   impression   was 
created – deliberately or otherwise –   that the samples could not 
be properly examined or tested, and for the identification of the 
substance,   the   samples   were   required   to   be   forwarded   to   CFSL 
Hyderabad.   Had the data­sheets been produced along with the 
complaint, it might have been apparent to the Special Court that 
though   the   substance   was   not   clearly   identified,   the   tests 

performed showed it to be 'not   
 Methaqualone'  There is a great 
difference in saying that the report in respect of the tests carried 
out,   was   'inconclusive',   and   saying   that   it   was   found   to   be   not 
Methaqualone,  but for its exact identification, further tests, which 
could be carried out in the CFSL Hyderabad, were necessary.
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The unfairness of the proceedings stands highlighted 
from   the   following.     The   prayer   of   one   of   the   applicants   and 
another   accused   for   bail   on   the   ground   that   they   had   been 
remanded into custody for a period of 180 days which was the 
maximum period during which the detention in custody, pending 
investigation could be authorized, was defeated on a wrong basis. 
Obviously,   the   prayer   for   bail   was   based   on   the   fact   that   no 
cognizance of the alleged offences could be taken on the strength 
of   the   material   before   the   Court   which   did   not   include   a   C.A. 
Report,   and   that   therefore,   though   a   complaint   had   been   filed, 
actually the investigation was incomplete.  The prayer for bail was 
turned down only because of the claim of the analysis done by 
Field Testing Kit having revealed presence of Methaqualone  in the 
substance in question.   Reliance was placed on the decision of this 
Court in   Rafael  Palafox Garcia   Vs  Union of India (supra)    in 
support of this proposition.   However, that the result of the Field 
Testing Kit which would be comparatively a cruder test was not 
supported by the analysis done by the Dy.C.C, was suppressed by 
giving an impression that the report of Dy.C.C was 'inconclusive'. 
Even   assuming   that   there   was   no   deliberate   misrepresentation 
about what the report from Dy.C.C conveyed, and without going 
into the question of legality of the act of sending the second set of 
samples   to   the   CFSL,   Hyderabad   for   re­testing,   what   the 
prosecution was in the least required to do, was to admit that the 
analysis of the substance was still going on, and that till then, it 
had   not   been   satisfactorily   ascertained   that   the   substance   in 
question was indeed a narcotic drug or psychotropic substance.  It 
need not be over emphasized that that the substance in question 
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was a psychotropic substance, was the very basis of the case, and 
though there was no satisfactory material to show this most basic 
aspect of the prosecution case, the detention of the applicant and 
other accused came to be authorized because of the unfair stand 
taken by the prosecution. 

If the order dated 12    April 2013 passed by the trial
court is examined, it is clear that a number of valid points were 
raised   by   the   accused   persons.     That   the   investigation   was   not 
completed, and that no reliance can be placed on the results of 
Field Testing Kit,   was contended by the learned counsel for the 
accused persons before the trial court.  It was also contended that 
there were instances – by citing such instances – where the reports 
received from CFSL subsequently did not conform to the results 
said to have been obtained on examination by Field Testing Kit. 
The trial court observed,  by referring to the observations made by 
this Court in the aforesaid case of  Rafael Palafox Garcia (supra) 
that, at the stage of taking cognizance, the result of Field Testing 
Kit   could   be   taken   into   consideration.    Interestingly,   the   Court 
accepted the contention advanced by the learned counsel for the 
accused   persons   that   in   many   cases,   the   results   of   CFSL   were 
found to be different from that obtained by Field Testing Kit, but 
observed that :­
'presently  there   is   sufficient   evidence   to   show   that 
Methaqualone  was   detected   in   the   powder   while 
carrying   the   test   with   the   help   of   Field   Testing   Kit'. 
The parties can be heard when the report of CFSL is 
received   on   that   point  (paragraph   no.10   of   the   order) 
(emphasis supplied)
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If   this   was   the   reasoning   with   which   cognizance   of   the   alleged 
offences was taken, then when the report from CFSL, Hyderabad, 
revealed that the claim of  Methaqualone  having been detected in 
the   powder   was   wrong,   the   learned   Judge   ought   to   have 
considered the  fact that cognizance had been taken in  a wrong 
belief.   It ought to have been clear to the learned Judge that the 
contentions raised by the accused persons about the unreliability 
of the examination done with the help of Field Testing Kit were 
found to be correct, and that not relying on those contentions at 
that time, had caused prejudice to the accused persons.  However, 
the trial court ignored that the basis on which it took cognizance 
was wrong, and had this been realized, it would not have taken 
cognizance,  which,   in  turn,   would  have   enabled   the  accused   to 
derive the benefit of mandatory bail, or discharge.  The detention 
of the applicants for a certain period was authorized on a wrong 
basis; and the attempt to show the detention to be rightful in the 
light   of   the   subsequent   revelations   misses   the   fact   that   in   the 
intervening period, the valuable rights of the accused were denied 
to them. 
The   laboratory   of   Dy.C.C,   New   Customs   House, 
Ballard   Pier   is   one   of   the   laboratories   mentioned   in   the   said 
standing instructions No.1/88 issued by the Director of Narcotics 
Control   Bureau   as   one   of   the   laboratories   to   which   samples   of 
seized   drugs   may   be   sent   for   examination,   and   therefore,   the 
suggestion that the said laboratory is ill­equipped to perform the 
necessary tests, cannot be easily accepted.  (Interestingly, this was 
pointed out by Mr.Ponda in the context of a different contention 
viz.   that   the   CFSL   Hyderabad   is   not   mentioned   in   the   list   of 
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laboratories,     but   I   have   not   given   much   importance   to   that 
aspect).   Even otherwise, the finding of Dy.C.C that the substance 
could   not   be   identified   as  Methaqualon  on   TLC   test   being 
performed, stands confirmed by the report from CFSL, Hyderabad. 
If the approved laboratory was unable to opine the substance to be 
a psychotropic substance, the benefit of this ought to accrue to the 
accused, and not to the investigating agency.
The   affidavit­in­reply   is   rather   argumentative   and 
emphasizes that cognizance was taken 'of the offences punishable 
under certain sections of the NDPS Act', thereby suggesting that 
what was the psychotropic substance in question, is immaterial. 
The affidavit in reply however, does not deal with the contentions 
raised by the applicants about the re­testing being impermissible 
and   contrary   to   law.     The   reply   also   does   not   deal   with   the 
contention that the report from Dy.C.C was not 'inconclusive', but 

indicated   the   substance   to   be   'not   
 Methaqualone'   When   these 
contentions were specifically raised by the applicants by amending 
the applications, no further or supplementary reply was filed by 
the respondent no.1 in spite of having had sufficient opportunity 
to do so. 
As a result of the aforesaid discussion, and a perusal 
of the record, as also keeping in mind the legal position as can be 
gathered   from   the   authoritative   pronouncements   of   the   Apex 
Court, I come to the following conclusions:­
In the absence of any provision in the NDPS, 
Act enabling the investigating agency to do so, the 
sending of the second set of samples for re­testing to 
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accordance   with   the   law   laid   down   down   by   the 
Supreme Court of India in the case of Thana Singh's 
case (supra).
the CFSL, Hyderabad was not permissible, except in 
Without   prejudice   to   the   above,  under   no 
circumstances,   the   second   set   of   samples   could   be 

forwarded   to   the   CFSL  without   obtaining   any
The   report   received   from   Dy.C.C   was   not 

permission from the Court  
inconclusive, as was suggested to ­ and believed by ­ 
the trial court.   The report when considered in the 
light of the data­sheets indicates that the substance 

was not found to be   
 , but what it was,
could not be identified,  and for exact identification, 
some further tests would be necessary for which the 
samples were required to be forwarded to the CFSL, 
Hyderabad.     This   is   certainly   different   from   saying 
that   the   report   of   analysis   was   'inconclusive', 
particularly   because   the   case   was   in   respect   of 
Methaqualone, and the substance was not found to be 
The data­sheets had not been supplied to the 
Court, and therefore, it was possible to create such 
an impression in the mind of the trial court.
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The investigation was said to be complete and 
a   case   capable   of   taking   cognizance   of   the   alleged 
offence, was said to be made out only on the basis of 
the result of examination carried out with the help of 
Field Testing Kit.  This result and the finding arrived 
thereby is now admitted to be incorrect.  
That   the   substance   was  Ketamine  and 
Metamphetamine  was   revealed   only   on   12th  June/ 
14th June 2013 when a report to that effect from the 
CFSL, Hyderabad was received.  
The   detention   of   the   accused   persons   in   the 
intervening period has been unfair and has resulted 
in   causing   prejudice   to   the   accused   as   the   plea   of 
some   of   them   for   release   on   bail/or   for   discharge, 
was defeated by an assertion which is subsequently 
accepted to be wrong. 
Till date, no rectification of the incorrect claim 
made   by   the   prosecution   has   been   done   and   even 
today, the complaint proceeds on the footing that the 
substance in question, was Methaqualone.
In my opinion, such a prosecution which has glaring 
and manifest defects cannot be  permitted to be  continued. It is 
nothing but an abuse of the process of the Court. That the report 
from   CFSL,   Hyderabad   discloses   that  Methamphetamine  and 
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Ketamine were detected in the samples cannot come to the rescue 
of   the   prosecution   to   hold   the   present   proceedings   to   be 
maintainable.     The   Investigating   Agency   has   to   blame   itself   for 
creating the present situation.  Had it been sincere or careful, the 
Investigating   Agency   would   have   undoubtedly   said   that   though 
the   reports   from   Dy.C.C   did   not   support   the   theory   of   the 
substance in question being Methaqualone, they still suspected the 
substance   to   be   a   psychotropic   substance   and   that,   its   further 
analysis was being done.  Had such a sober and reasonable stand 
been   taken   without   filing   the   complaint   hurriedly,   at   the   most, 
some of the accused would have got the benefit of the mandatory 
bail, but a proper complaint could have been filed after  receipt of 
the report from CFSL.  Today,  if at all, the applicants and the other 
accused are to be prosecuted, it can be done only on the basis that 
the  Metamphetamine  and  Ketamine  were detected in the samples. 
Undoubtedly,   this   can   be   done   only   by   placing   reliance   on   the 
report from the CFSL, Hyderabad; and the question as to 'whether 
the report, which has been obtained by re­testing done without 
any permission or order from the trial Court, can at all be looked 
into' would arise in that eventuality.    Certainly, the observations 
made by me that 'the report of CFSL cannot form the basis for the 
prosecution of the applicants and other accused', have been made 
in the context of the present case, (where the complaint proceeds 
on the basis that the substance in question was Methaqualone) and 
may not be treated as conclusive or binding in the event of the 
question   of   prosecuting  the   applicant  and  other   accused  on  the 
basis   that  Metamphetamine  and  Ketamine  were   detected   in   the 
samples,   arising.       It   is   because   such   a   question   can   be   best 
decided only when a complaint/prosecution to that effect is filed. 
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The   Court   concerned   may   decide   the   same   at   that   time   in 
accordance with law.  The fact, however, remains that the present 
prosecution, as it is, cannot be permitted to be continued further. 
Applications are allowed in terms of prayer clause a(i) 
which reads as under :­
“Quash  the  proceeding   in N.D.P.S. Special Case 
The applicants be set at liberty forthwith. 
52   At   this   stage,   Mr.Rajesh   Kumar,   Preventive   Officer, 
Customs,   prays   that   the   operation   of   this   order   be   stayed   for 
enabling the respondent no.1 to approach the Supreme Court of 
India against the same.
Prayer rejected.
54 However, in the circumstances, it is directed that the 
applicants   shall   execute   a   personal   bond   in   the   sum   of 
Rs.1,00,000/­ each before the trial court within a period of 7 days 
from today, binding them to remain present before the trial court 
in the event of the challenge that is intended to be given to this 
order, succeeding.
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