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
