Ashfaque Ahamed Vs State Of West Bengal

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Judgment

122 paragraphs · 4,507 words

Joymalya Bagchi, J

The reference has been made in view of difference of opinion between two Hon’ble Judges of this Court whether to grant bail to the petitioner.

Summary of events:-

Facts giving rise to the reference may be summarised as follows:-

On the basis of credible information which was reduced into writing, a raiding team comprising of officers attached to Narcotic Cell, Detective Department, Kolkata with the permission of Assistant Commissioner, Narcotic Cell left the office to work out the information. Around 09.00 hours they reached Oasis Nature Apartment within Anandapur Police Station. At 09.40 hours the source pointed out three men and one lady who were coming along Chowbaga Road from EM Bypass side as the suspects. Raiding team detained them. On interrogation they disclosed their identities. Petitioner was one of the suspects. Raiding team informed the suspects including the petitioner about their legal right to be searched in presence of a gazetted officer or Magistrate. They agreed to be searched in the presence of a gazetted officer. Thereupon, a gazetted officer, namely, Additional Officer-in-charge of Anandapur Police Station was requested to come to the spot and search was conducted in his presence. During search 256 grams of brown powder sealed in polythene packet suspected to be heroin was recovered from the petitioner, while 20 grams of similar substance was recovered from each of his associates. Testing of the seized substance by testing kit at the spot revealed presence of heroin. Total recovery from the petitioner and accused persons was 316 grams. Samples of about 5 grams each was drawn from the seized consignment and kept in separate envelopes which were marked as A1, C1, E1 and H1 respectively. Petitioner and his associates were arrested. They along with the seized consignment and samples were produced before the trial Court. Samples A1, C1, E1 and H1 were sent for chemical examination at State Drug Control and Research Laboratory. Upon examination, State Drug Control and Research Laboratory vide report dated 01.02.2018 opined the samples did not contain heroin and do not come under the purview of NDPS Act.

Relevant portions of the said report are set out as follows:-

Parcel No.

Description

Four brown envelopes marked as Ex: A1, C1, E1& H1 duly signed and sealed individually contained a synthetic packet having brown colour powder.

Identification:-

Chemical Test (Colour Test)

Table 1

Exhibit

Marquis Test

Frohde’s Test

Negative

Assay:-

Results (HPLC Method):

Table: 2

Exhibit

Heroin

------Nil---------

The samples (Ex: A1, C1, E1 & H1) are negative for the presence of Heroin.

Weight-

Table : 3

Exhibit(s)

Weight with polythene cover (gm)

Remnant weight (gm)

4.9834

4.8374

5.7653

5.6213

5.5362

5.3872

5.5763

5.4283

Remarks:-The samples (Ex: A1, C1, E1 & H1) do not contain Heroin and do not come under the purview of NDPS Act, 1985.

On receipt of the said report the investigating agency made application before the trial Court praying for sending the remnants in sealed condition for retest by Central Forensic Scientific Laboratory (for short ‘CFSL’) on the following ground:-

“The report chemical expert vide SDCRL/245 dt.01/02/2018 has since been received (Xerox copy attached) which stated that the exhibit marked A1, C1, E1,H1 does not contain Heroin and does not come under NDPS Act. But the expert of State Drug Control and Research Laboratory does not mention the actual status of the said contrabanddrug.

In view of the above it is prayed before your Honour to pass necessary direction for sending the remnant in sealed condition to Central Forensic Scientific Laboratory, 30,Gorachand, Kol-14 for further to be tested for presence of either codeine/ morphine like narcotic substance.”

Trial Judge vide order dated 03.02.2018 allowed the retesting of the remnants of the samples by CFSL. The order reads as follows:-

“Record is put up on petition filled by Ld. P.P. – in- charge.

I.O. S.I. Kalyan Biswas has submitted prayer for sending the remnants of the samples in sealed condition marked ‘A1’, ‘C1’, ‘E1’, ‘H1’ to Central Forensic Laboratory, 30, Gora Chand Road, Kol-14 for further test regarding presence of codeine/ morphine like narcotic substance. A Xerox copy of Letter received from Director, State Drug Control and Research Laboratory along with Xerox Copy of Report of analysis by said Laboratory is enclosed with the application.

Heard Ld. P.P.-in-Charge.

Perused the petition and it enclosures.

Considered.

Prayer for further examination of the remnants of the samples in sealed condition is allowed to be held at Central Forensic Science Laboratory as per prayer of the I.O.

I.O. is accordingly directed to take steps for sending the same to C.F.S.L., Kolkata.

To date i.e., 13.02.2018.

Let a copy of this order be supplied to the I.O. for his information and necessary action.”

Pursuant to such order the remnants of the samples were retested and CFSL vide report dated 23.03.2018 opined as follows:-

“Result of Examination

Using suitable chemical/colour test and instrumental methods of chemical analysis (GC-MS & FT-IR techniques) of the content of exhibits marked here as Chem 55/18/1 to Chem 55/18/4 the following results were obtained:

(i) 6-Monoactylmorphine (6-MAM), Acetylcodeine and Alprazolam (covered under NDPS Act) were detected in the content of each of the exhibits marked here as Chem 55/18/1 to Chem 55/18/4.

(ii) The colouring gent/dye viz 3-Hydoxy-2-napthoyt-ortho-anisidide & N.N’-Diacetyldianiiine and Caffeine (not covered under NDPS Act) was also detected in the content of each of the exhibits marked here as Chem 55/18/1 to Chem 55/18/4.”

On the strength of the subsequent test report charge sheet was filed against the petitioner and the other accused persons. Charges were framed under section 21(c) read with section 29 of the NDPS Act. At this stage the petitioner moved an application for bail primarily contending the subsequent test report cannot be taken into consideration as the same was obtained in contravention of the directions in Thana Singh vs. Central Bureau of Narcotics (2013) 2 SCC 590. In support of such plea it was contended copy of the initial exonerative report from State Drug Control and Research Laboratory was neither supplied to the petitioner during investigation nor was it reflected in the police report filed before the Court. Consequentially, petitioner had no opportunity to oppose the application of the investigating agency for retesting which was allowed by the Court below in a mechanical manner by a non-speaking order. No reasons were given in the order indicating exceptional circumstances justifying retesting of the samples. It was also argued no certification of the remnants (sent for retesting) was done by Magistrate under section 52A of the NDPS Act and there is significant difference in weight of the samples sent for retesting and the remnants returned by the State Drug Control and Research Laboratory. The prayer was resisted on behalf of the State on the ground application for retesting was made within 15 days of receipt of the test report from State Drug Control and Research Laboratory. Exceptional circumstances necessitating retesting are reflected not only in the application but are also evident from the materials on record.

Thana Singh (supra) does not envisage opportunity of hearing to the accused while considering a prayer for retesting. Exonerative report was not relied upon and, therefore, not supplied to the petitioner under section 207 Cr.P.C. Such omission, however, has not prejudiced the petitioner as the test report of the State Drug Laboratory was enclosed with the application for retesting and was a part of the records of the Court.

Issue raised in the reference:-

Upon hearing the parties, while Tandon, J. was inclined to grant bail to the petitioner holding subsequent test report had been procured in contravention of the directions in Thana Singh (supra) and was inadmissible in law, Ghosh, J. declined the relief holding there were exceptional and compelling circumstances which justified retesting through CFSL.

In view of the aforesaid dichotomy, the present reference has been made.

The question which, therefore, falls for decision is:-

Whether the subsequent test report from CFSL was obtained by the investigating agency in consonance with the ratio in Thana Singh (supra) and may be relied upon while considering the prayer for bail of the petitioner?

Opinion:-

NDPS Act does not provide for retesting of sample. In view of such gap in legislation the Apex Court in Thana Singh (supra) considered it imperative to redefine retesting rights with regard to articles seized under the said Act. Taking into account all relevant factors including the necessity for swift disposal of narcotics cases, the Court in Thana Singh (supra) issued the following directives in the matter of retesting of samples:-

“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 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.”

An analysis of the aforesaid directives would indicate the following procedure to be adopted in the matter of retesting of samples:-

(a) Upon tests of initial samples being completed, results of such tests are to be furnished to all parties, that is, prosecution and the accused (if available);

(b) A request for retesting must be made by any party within 15 days of receipt of such result;

(c) Upon such request being made if compelling and exceptional circumstances exist, Special Court may permit retesting of samples after recording cogent reasons in the order;

(d) No application for retesting shall be entertained after expiry of 15 days or in the absence of compelling circumstances;

In the present case the application for retesting was made by the prosecution on 02.02.2018, that is, a day after it had received the test results. The application recorded the reason for retesting, namely, ‘expert of State Drug Control and Research Laboratory did not mention the actual status of contraband drug’. Upon considering the application, by order dated 03.02.2018 Special Judge permitted further examination of the remnants of the samples by CFSL. Result from CFSL showed presence of Monoactylmorphine, Acetylcodeine and Alprazolam in the samples. Tandon, J., inter alia, held the retesting was contrary to the directions in Thana Singh (supra). Copy of the samples had not been furnished to the petitioner and he was not given an opportunity of hearing at the time when the order of retesting was made. Order for retesting is bereft of reasons and, therefore, the subsequent report is inadmissible in law. On the contrary, Ghosh, J. was of the opinion records of the case disclose compelling circumstances justifying retesting. Initial testing at the spot showed presence of Heroin but report from State Drug Control and Research Laboratory contradicted such opinion. Actual nature of the seized contraband had not been stated in the test report of State Drug Control and Research Laboratory. These aspects of the case gave rise to compelling and exceptional circumstances justifying retest.

Mr. Basu, learned Senior Counsel, empathically argued copy of the initial test report had not been supplied to the accused. No notice was given to him on the application preferred by the prosecution for retesting and he was denied an opportunity to object to the same. Examining the materials on record in the light of the ratio in Thana Singh (supra), I note copy of the initial test report had not been given to the accused. The purpose of supplying copy of the initial report to the parties is to give them an opportunity to object to the report and pray for a retest of the samples within a stipulated time frame. As in the present case, initial test report was in favour of the accused, there was no question of the accused disputing such report. Hence, failure to supply the initial exonerative test report to the accused cannot be said to have breached his right to seek retest as envisaged in Thana Singh (supra). Thana Singh (supra) does not expressly confer any right of hearing to the accused/ adverse party at the time of considering a prayer for retest. A judgment cannot be interpreted like a statue and further rights in favour of a party be inferred therefrom apart from what is provided therein. Ghosh, J. rightly observed a judgment is an authority for what it actually decides and not what logically follows from the various observations made in it [State of Orissa vs. Sudhansu Sekhar Mishra And Others, AIR 1968 SC 647 (para 13)]. Moreover, direction for retest is for collection of evidence during investigation. Investigation is an inquisitorial process and principles of natural justice are not attracted at that stage unless expressly provided by law. Only upon a lis being instituted by filing of a police report, would an accused get an opportunity to rebut the evidence collected during investigation i.e., the subsequent test report. While dealing with right of an accused to be heard at the time of issuing declaration under section 5 of the Special Courts Act, 1979, the Apex Court in V.C. Shukla vs. State (Delhi Administration) 1980 Supp SCC 249 (para 44) underscored the inapplicability of principle of natural justice at the stage of investigation. It observed as follows:-

“44. ... It is to be borne in mind that at the stage when the declaration is sought to be made there is no lis pending nor has any prosecution been launched against the accused. Section 5 deals only with the decision taken by the Central Government to prosecute and until that decision is notified, the prosecution does not start, and the question of an accused being heard at that stage, therefore, does not arise at all. A couple of instances in point may be cited here with advantage. In cases where law requires sanction to be given by the appointing authority before a prosecution can be launched against a government servant, it has never been suggested that the accused must be heard before sanction is accorded. The question of sanction arises at a point of time when there is no danger to the liberty of the subject and the accused at that stage is not in the picture at all. It is only after sanction is accorded that an accused is brought to trial or proceedings are started against him when he is to be heard and can challenge the validity of the sanction. Similarly, when a first information report is filed before a police officer, the law does not require that the officer must hear the accused before recording it or submitting a charge-sheet to the court. Another instance is to be found where a complaint is filed before a Magistrate who chooses to hold an inquiry under Section 202 of the Code of Criminal Procedure before issuing process or summons to the accused. It has been held in several cases that at that stage the accused has got no locus to appear and file his objections to the inquiry. The right of the accused to be heard comes into existence only when an order summoning the accused is passed by the Magistrate under Section 204 of the Code of Criminal Procedure. In the case of Cozons v. North Devon Hospital, Management Committee, Lord Salmon pithily observed:

“No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused.””

That apart, inferring a right to notice and opportunity of hearing at the time of directing retest during investigation would merely delay the process and run counter to the letter and spirit of the directions of Thana Singh (supra) which envisages a regimented time bound procedure for speedy disposal of narcotic cases. I hasten to emphasis the accused is no way prejudiced as he has every opportunity to rebut the admissibility, reliability and probative value of the retest report during enquiry and trial.

Viewed from such perspective it may not be correct to infer an opportunity of hearing to the adverse party at the time of directing retesting. Statutes which provide for retesting of samples in the course of investigation like The Drugs and Cosmetics Act, 1940 [Section 25 of The Drugs and Cosmetics Act, 1940], The Prevention of Food Adulteration Act, 1954 [Section 13 of The Prevention of Food Adulteration Act, 1954], do not envisage notice and hearing to the adverse party for permitting retesting. Hence, I am of the opinion that the ratio in Thana Singh (supra) does not expressly or impliedly require notice or opportunity of hearing to the adverse party/accused for the purpose of directing retesting.

Mr. Basu further argued that the investigation was an unfair one. Initial exonerative test report was suppressed and not reflected in the police report submitted in conclusion of investigation. In this regard, he referred to Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re vs. State of Andhra Pradesh and Others [(2021) 10 SCC 598] wherein the Apex Court held that exculpatory materials collected in the course of investigation require to be listed in the police report. Such list is to be furnished to the accused so that the latter may, if so advised, seek production of such documents in the interest of justice. The Court approved ‘Draft Criminal Rules on Practice, 2021’ wherein Rule 4 Chapter 1 relating to ‘investigation’ mandates as follows:-

“Chapter I: INVESTIGATION

***

Supply of documents under Sections 173, 207 and 208 CrPC. – (i) Every accused shall be supplied with statements of witness recorded under Sections 161 and 164 CrPC and a list of documents, material objects and exhibits seized during investigation and relied upon by the investigating officer (IO) in accordance with Sections 207 and 208 CrPC.

Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the investigating officer.”

The aforesaid directions are to ensure a fair and impartial investigation. It was imperative on the part of the investigating agency to disclose the initial exonerative test report of State Drug Control and Research Laboratory in the charge-sheet. Though in the present case the police report does not refer to the exonerative test report, a copy of the said report was annexed to the application for retest and was a part of the records of the Court and accessible to the petitioner. In fact, upon inspection of the records petitioner had relied upon the initial report and has prayed for bail. Thus, failure of the investigation agency to refer to the exonerative test report in the charge-sheet, though not appreciated by this Court, has not caused prejudiced to the petitioner or occasioned any failure of justice. Procedural law must always be tested on the anvil of prejudice and unless deviation therefrom causes irreparable prejudice to the accused and occasions failure of justice the same would not vitiate the prosecution.

Other infraction of the ratio in Thana Singh (supra) which has been canvassed before him is absence of reasons in the order for retest. Thana Singh (supra) mandates there must be compelling and exceptional circumstances for retesting. It categorically provides in the event the application for retesting is not made within 15 days of receipt of the report or no compelling circumstances exist, retesting shall not be permitted. In order to ensure that frivolous applications for retest are nipped in the bud, the Apex Court directed Special Judge must record cogent reasons while permitting such retest. In the present case, application for retest enclosed the initial report and clearly cited the compelling circumstance in support of such prayer. Order of the Special Judge, inter alia, shows that he had perused and considered the petition and its enclosures. While dealing with the requirement of recording reasons in an order or remand by a Magistrate, a Constitution Bench of the Apex Court in Mowu vs. Superintendent, Special Jail, Nowgong, Assam and Others (1971) 3 SCC 936, inter alia, held as follows:-

“19. …when the order-sheet speaks of the Magistrate having perused the police report for remand, the reasons and the circumstances set out in the report would be the reasons for passing the orders of remand.”

In view of the observation in Mowu (supra), I am of the opinion the compelling circumstances set out in the application must be treated to be the reasons for passing the order for retest.

The issue may be viewed from another angle. Order for retest is to collect further evidence in the course of investigation. If exceptional and compelling circumstances are evident from the facts of the case and have been canvassed in the application for retest, merely because the order of the Special Judge is unhappily worded and is a cryptic one, would it be a ground to ignore the additional evidence, that is, subsequent test report? It is trite law evidence collected in the course of illegal search cannot be per se ignored. Admissibility and probative value of such evidence must be judged in the facts of each case (see Pooran Mal vs. Director of Inspection (Investigation) New Delhi And Others 1974) 1 SCC 345 (paras 23 and 24) and Dr. Pratap Singh And Another vs. Director of Enforcement, Foreign Exchange Regulation Act And Others (1985) 3 SCC 72 (para 15)). Similarly, a subsequent test report obtained pursuant to a prayer for retesting reflecting the compelling and exceptional circumstances evident from the facts of the case cannot be ignored on the mere ground the order directing retest is a cryptic one. To do so would be an incorrect reading of the ratio of Thana Singh (supra) and be contrary to the interest of justice. Reading the directions in Thana Singh (supra) as a whole would show retesting is impermissible only if the application is made beyond the stipulated time or there are no compelling circumstances justifying such course of action. If these two conditions are satisfied, retesting of samples cannot be said to be at variance with the requirements of Thana Singh (supra) and the subsequent report be construed inadmissible in law.

Factual matrix of the case discloses compelling and exceptional circumstances justifying retest. Initial report of State Drug Control and Research Laboratory merely stated the samples did not contain heroin and do not come under the purview of NDPS Act, 1985. There was no finding in the report with regard to the actual status/ chemical composition of the seized contraband. Hence, the report was an incomplete one and this prompted the agency to seek retest with regard to actual nature of the seized contraband. This is clearly an exceptional and compelling circumstance and has been succinctly reflected in the application for retest. To highlight the deficiency in the initial report, the agency clarified that the seized articles had not been tested for presence of other narcotic substance like codeine/ morphine. These compelling circumstances justify a retest which came to be allowed by order dated 03.02.2018. Upon retesting by CFSL, the samples were found to contain Monoactylmorphine, Acetylcodeine and Alprazolam which are narcotic/ psychotropic substances under the NDPS Act. Since the initial test report was ex facie an incomplete one and did not disclose the exact status/ chemical composition of the seized article, I am of the view there were exceptional and compelling reason for retest. It may also be relevant to note that the methodology followed by the State Drugs Control and Research for analyzing the samples were different from those adopted by CFSL. While the State Drug Control and Research Laboratory used HPCL (High-Performance Liquid Chromatography) method, CFSL used different methodology, namely, GC-MS (Gas Chromatography-Mass Spectrometry), FT-IR (Fourier Transform – Infrared Spectroscopy) techniques for analysis of the samples. These compelling and exceptional circumstances fully justify retesting by CFSL in the facts of the present case.

In Laxmi Nagappa Koli vs. Narcotic Control Bureau and Another (2015) 13 SCC 598 prayer for retest by CFSL, Hyderabad was disallowed in the factual matrix of the said case. In that case a sample had already been unsuccessfully tested at CFSL, Hyderabad. Further report of CFSL, Mumbai stated the samples were composed of Nitrogen bearing organic compound which ruled out the possibility of presence of Heroin as the latter is not a Nitrogen based compound. In this backdrop a subsequent prayer for retest at CFSL, Hyderabad was disallowed.

Finally, it is argued there is no certification of the remnant samples under section 52A of the NDPS Act prior to retesting. There is also difference in weight of the remnant samples as per notings in the report of State Drug Control and Research Laboratory vis-à-vis the CFSL report.

It is undisputed that after seizure of the contraband requirements of section 52A of the NDPS Act had been complied with in this case. Initially, samples were sent to State Drug Control and Research Laboratory and tested. Thereafter, remnants of the samples in sealed packets were received from the State Drug Control and Research Laboratory and on the direction of the Special Court were sent for retesting. Thana Singh (supra) does not entail a further certification of the samples under seizure 52A of the Act for the purpose of retesting. Hence, there is no breach of section 52A in the matter of retesting of samples.

With regard to the difference in weight of the samples, it is unclear from the report of the State Drug Control and Research Laboratory whether the weight of the remnants noted therein is with or without polythene cover, while the weight noted in the CFSL report is without the polythene cover. This issue is a factual one and may be thrashed out in the course of trial. Remnants is sealed packets received from State Drugs Laboratory were sent for retesting at CFSL. It is nobody’s case the seals of the packets in which remnants were received from State Drugs Laboratory were tampered. Hence, I am of the prima facie opinion there is no breach in the chain of custody of the retested samples.

Conclusion:-

In view of the aforesaid discussion, I hold subsequent test report showing presence of narcotic substance in the seized contraband was obtained in accordance with law and may be relied upon while considering the prayer for bail of the petitioner.

The report when read in conjunction with other materials on record prima facie establish the contraband recovered from the petitioner contained narcotic substance above commercial quantity.

In view of the aforesaid facts and the statutory restrictions under section 37 of the NDPS Act in the matter of grant of bail, I am not inclined to grant bail to the petitioner.

The application for bail is, thus, rejected.

Reference is, accordingly, answered.

Ashfaque Ahamed vs State Of West Bengal

Judgment