Ashfaque Ahamed vs State Of West Bengal

Harish Tandon, J

A piquant situation has arisen in the instant bail application on a plea having taken by the advocate for the petitioner that the Special Judge, NDPS Court without recording any reasons, passed an order mechanically on the prayer of the prosecution for second testing of the contraband.

It is arduously submitted by the learned Advocate for the petitioner that the second testing of the contraband is neither permissible nor provided in the statute and, therefore, the exercise undertaken by the prosecution in this regard is liable to fall on the anvil of the statutory provision. Ancillary thereto a plea has been taken that the sample was prepared at the time of seizure by the Gazetted Officer and not in presence of the Magistrate as envisaged under Section 52A of the NDPS Act and, therefore, there is every possibility that the trial would fail and may lead to the acquittal of the petitioner.

To buttress the aforesaid submission, the reliance is heavily placed upon the judgment of the Supreme Court in case of Thana Singh Vs. Central Bureau of Narcotics reported in 2013 2SCC 590. The said judgment is of seminal importance as the NDPS Act and the Code of Criminal Procedure are silent about any conceivable provision permitting the prosecution to have the sample tested twice or more. The Apex Court while in seisin of the matter noticed such omission or lapse on the part of the legislation in not incorporating the specific provision in the statute in this regard. However, in order to put impetus to the object and the purpose for this legislation was made which obviously aimed to curb the menace of the narcotic drug circulated/distributed amongst the abnormal citizens impacting upon the society both in economic as well as the development envisaged by the Government or the framers of the Constitution. It corrodes the mental and economic stability amongst the youngsters leading to the loss of life. Such being the substratum of the promulgation of the said Act and the foundation being lead to combat the menace of the drugs being accessible to the young generation. The framers of the law enacted such legislation incorporating various provisions which is exhaustive in its nature so as to bring the perpetrator of the cognizable offence to be punished and rendering justice to the victim. The Apex Court in Thana Singh (Supra) conspicuously noticed the omission of a specific provision relating to re-testing and/or re-examination of the sample distinct from the other provisions contained in Customs Act and the Drugs and Cosmetics Act, 1940. To the wisdom of the Apex Court, it was deemed, fit and proper to provide a right for re-examination/re-testing of the contraband and/or narcotic seized from the possession of the offender if the prosecution is of the view that clear picture has not been brought in the first testing.

It would be relevant and profitable to quote the observation of the Apex Court recorded in Thana Singh (Supra) which runs thus:

"27: Therefore, keeping in mind the array of factors discussed above, we direct 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 rest 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."

It is axiomatic to record that the right created in the said judgment upon the prosecution for re-testing/re-examination is not an indefeasible right but circumscribed by the various factors as indicated therein. The alacrity and promptness are one of the factors which are required to be strictly adhered to and such right should not be exercised by the prosecution as per its whims or convenience for all time to come.

We do not visualise any ambiguity upon reading the words and the sentences recorded in the said judgment by the Apex Court but the stimuli was provided by the learned Advocate for the petitioner when a plea was taken that the learned Judge, Special Court while exercising such right has strictly followed the mandate recorded therein. It is succinctly indicated that though the application was filed within the time frame but the Special Judge allowed the said application mechanically without recording any reasons thereupon a little prelude to the genesis of such argument is required to be conceptualised and/or adumbrated before we proceed to deal with such point and interpret the tenet of the said observations recorded in Thana Singh (Supra).

On the basis of the credible information and after reducing the same in writing, the concerned officer with the team detained the petitioner and three others on 24th November, 2017 and total quantity of 316 grams of Brown Powder (apparently) in a sealed polythene packet was recovered from their joint possessions, which they suspected to be Heroine. The sample was drawn and sent to the State Drug Control and Research Laboratory (Government of West Bengal) on 30th November, 2017 and the report was received on 1.2.2018. The report would reveal that the aforesaid sample of substance does not satisfy the ingredients of the Heroine and it was opined that it does not satisfy the definition of contraband under the NDPS Act. Immediately on the next day, an application was taken out by the prosecution/investigating officer before the learned Special Judge seeking re-testing/re-examination of the sample which was drawn at the time of seizure and returned by the forensic laboratory after the first testing. The application was taken up for hearing on 3rd February, 2018 and the Special Judge passed the following order.

The aforesaid observations gives impetus to the petitioner to contend that there has been a complete and gross violation of the mandate of the Supreme Court in Thana Singh(Supra) as it is bereft of any reasons far to speak of cogent reasons.

The aforesaid contentions are augmented further on the plea having taken in this regard whether the non-recording of the cogent reasons would vitiate and entail the entire exercise illegal or a mere curable irregularity not striking at the root of the matter. It is no gainsaid that the decision in a judgment is what it decides on the basis of the facts involved in a given case. We are also not unmindful of the fact that the ratio of the judgment partakes a character of a declaration of law within the meaning of Article 141 of the Constitution of India and, therefore, binds all the subordinate Courts including the High Court. Indubitably neither the NDPS Act nor the Code of Criminal Procedure reserved any provision relating to further re-testing/re-examination of the substance seized from the possession of the persons. At the first blush, it is struck in our mind whether through a judicial pronouncement the Courts can assume the legislative power in bringing something within the statute when the legislators consciously omitted the same therein. There are divergent opinions in the line of thoughts. Some judgments are pointer towards the omnipresent of such power inhere and inbuilt in the courts in rendering the justice and more particularly, to further and/or gives impetus to the aim and object of which it is so made rather to make it unworkable. The another line of thought which appears to us is more conservative and enunciated the proposition of law that the role of the Court in a legislative freedom is to limit and circumscribe as one cannot transgrace the domain/jurisdiction of the another. The later thought in our opinion recognises the concept of separation of powers and overreaching by one organ upon the other appears to be deprecated. We do not see any difficulty in supplementing something into the statute keeping the basic fabric of the statute intact and the safeguard shall be shown against supplanting the same. The aim, object and purpose of the legislation are the hallmark of bringing in reality and, therefore, cannot be whittled down in embarking the journey of adventurism or sometimes showing over zealousness. There is no fetter on the part of the Court to provide something in furtherance of the mandate of the statute provided it does not offend the basic structure thereof nor to frustrate its object.

In Thana Singh (Supra), the Apex Court succinctly noticed the provision relating to re-testing in other legislations which are contemporaneous in nature or in pari materia therewith precisely and for such reason the Apex Court held:

"25: Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the above stated factors. Further, in the light of Section 52-A of the NDPS Act, which permits swift disposal of some hazardous substances, the time frame within which any application for re-testing may be permitted ought to be strictly defined."

Though the right of re-testing of the narcotic substance is conspicuously absent in the legislature but in exercise of the judicial fiat and the reasons for such right to be extended, the Apex Court permitted the re-testing/re-examination subject to the adherence of the conditions enshrined therein. The assimilation of paragraph 27 of Thana Singh(Supra) leads to the following parameters to be strictly observed namely:- i) The test report of the laboratory concerned must be furnished to all parties concerned. ii) Request in the form of application must be made for re-testing/re-sampling within 15 days from the date of the receipt of first test report iii) Such exercise shall not be made in a routine or casual manner but restricted to extremely exceptional circumstances and iv) the Special Court must record the cogent reasons for re-testing/re-sampling. The aforesaid right is further fettered with the strong words used therein that in absence of any compelling circumstances it is always to be borne in mind that re-testing/re-sampling is strictly prohibited under the NDPS Act. The aforesaid observation of the Supreme Court fraught in juxtaposition with provision contained under Section 52(A) of the NDPS Act. It leads to no ambiguity rather makes it amply clear that the same is treated as a primary evidence at the time of trial. The right of the accused is safeguarded with the aforesaid observation for providing the test report of the first testing and, therefore, it logically follows that a right to be heard is also intricately related to at the time of considering an application for re-testing/ re sampling. It is imperative on the part of the Court to record reasons, be it cogent or otherwise, in judicial dispensation. The reason is a heart and soul of a decision taken by the Judge without which it cannot see the life. Non providing the reasons could entail the entire exercise liable to fail as the litigant has the right to know the reasons for deciding a cause as non adherence thereof will violate the very fundamental duty and may render the decision inviolable. As indicated above, though the application was taken out immediately on the next date of the receipt of the test report from the State Forensic Laboratory and allowed by the Special Judge within a day thereafter, yet our endeavour has failed to find out any reasons having recorded therein. Since the mandate of Thana Singh(Supra) has been completely violated and bypassed we do not find any other reason but to discard the second test report from our consideration while considering an application for bail. The first test report is categorical on the nature of the substance and the laboratory has opined that it does not contain the ingredients of the contraband (Heroine).

The prayer for bail is, thus, allowed.