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)
CRIMINAL APPLICATION No. 56 OF 2014
(Amended as per order dt.11/02/2015)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Shailesh Kanad Vs intelligence fficer
CORAM : ABHAY M. THIPSAY, J.
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
same.
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.
4
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
5
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
.S.Special
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.
6
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
complaint.
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
Methaqualone
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
9
then sought discharge from the Special Court. The main ground
ig
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
SC/2.
10
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
.S.Act.
11
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
ig
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.
12
The applicants, thereafter, had approached this Court
also for bail, but they did not succeed.
13
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
14
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
ig
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.
15
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
16
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
ig
forth by way of justification for adopting such a course, did not
17
exist.
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
Hyderabad.
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
ig
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)
18
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.
19
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
not
.
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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
20
order to that effect from the Court.
In view of the contentions raised, it would be proper
ig
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
21
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
M
used.”
22
(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
ig
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
Methaqualone
.
23
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.
24
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
ig
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
ig
testing/resampling is strictly prohibited under
the NDPS Act”
(Emphasis supplied)
25
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.
26
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.
27
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
ig
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.
ig
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
28
any orders from the trial court. This, in any case, does not seem to
be legal, permissible or justified.
29
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
substance.
30
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
ig
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.
31
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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APL-56-14-221-14(amended)
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
ig
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
33
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.
35
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
36
that the substance in question is Methaqualone.
The learned Special P , perhaps being unable to deal
.P
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.
37
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
Ketamine
and
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
ig
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.
38
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
ig
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.
39
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.
40
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
41
sustainable.
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
ig
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.
42
In my opinion, the proceedings have been
thoroughly unjust and unfair for a number of reasons.
43
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
Methaqualone
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
ig
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
44
APL-56-14-221-14(amended)
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.
ig
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.
45
If the order dated 12 April 2013 passed by the trial
th
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
ig
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,
ig
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.
46
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
47
emphasizes that cognizance was taken 'of the offences punishable
ig
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.
48
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:
(a)
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
(b)
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
ig
(c)
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
Methaqualone
, 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
Methaqualone.
(d)
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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(e)
APL-56-14-221-14(amended)
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
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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
(f)
Metamphetamine was revealed only on 12th June/
ig
14th June 2013 when a report to that effect from the
(h)
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.
(i)
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.
49
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,
ig
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
50
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
No.51/13”.
The applicants be set at liberty forthwith.
52 At this stage, Mr.Rajesh Kumar, Preventive Officer,
ig
51
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
53
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.
(ABHAY M.THIPSAY, J)
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