K. Ramesh Kumar vs State

N. Kirubakaran, J.—The petitioner has challenged the Suo-motu decision taken by the Trial Court to send the contraband for Chemical analysis for the second time. The facts of the case are as follows:

(i) The Inspector of Police NBCID, on information, recovered 800 grams of Cocaine from the accused and recorded the confession statement, on the basis of information provided by the accused and other accused were implicated. The samples were sent for analysis to the Forensic Science Department (Narcotic Division), Chennai. The Forensic Science Department, Chennai, submitted an analysis report. On analysis, the report was sent stating that the samples contained Chloroquine, Etofylline and Theophylline. Based on the analysis report, the Deputy Superintendent of Police filed a final report on 17.08.2012.

(ii) The trail Court, on perusal of the entire records, did not agree with the report filed by the Deputy Superintendent of Police and has taken cognizance of offence u/s 28 of NDPS Act.

(iii) After perusing the records, the trial Court observed that analysis report was received by the trial Court through the Special Sub-Inspector who was not authorised by the Court to receive the report from the Forensic Science Lab. While sending the requisition, the Court specifically directed to send the analysis report to the Court directly. Therefore, the trial Court, with a view to ensure that the material object seized in the case alone was analyzed, has decided to send the second sample for analysis. In view of that, the trial Court gave notice to the prosecution and all other accused and heard them. After hearing the arguments of parties, the trial Court decided to send the samples for second analysis. That order is being challenged by the accused.

The learned counsel for the petitioner would submit that the samples recovered from the petitioner are not Cocaine, which is also proved by analysis report. Secondly, when the test report categorically stated that it is Chloroquine, Etofylline and Theophylline, therefore, there is no necessity for sending the samples for second analysis. He relied upon the Judgment of the Honourable Supreme Court in Thana Singh Vs. Central Bureau of Narcotics, wherein, it has been stated that only in exceptional circumstances, resampling can be done that too within 15 days from the date of receipt of the test report. The learned counsel for the petitioner would point out that the report is dated 31.07.2012 and the same was received by the trial Court on 06.08.2012. Whereas, resampling order was passed on 01.04.2013. In view of that, the order is in violation of the law laid down by the Honourable Supreme Court. A perusal of records would show that 800 grams of Cocaine is alleged to be seized from A1 and A2 and the petitioner is A3. Based on the information provided by the first and second accused, the petitioner is also implicated. Though the sample was sent for Forensic Analysis, the report received would show that it is not a contraband and it is only a Chloroquine, Etofylline and Theophyline. Based on that only, the Deputy Superintendent of Police filed a final report on 17.08.2012. But, the trial Court did not agree with the report filed by the Deputy Superintendent of Police and has taken cognizance of offence against the accused u/s 28 of the NDPS Act. The trial Court also took note of the fact that one Samuvel, Special Sub-Inspector of Police was not authorised by the Court to receive the report from the Forensic Lab. While sending their accusation, the Court specifically directed to send the analysis report to the Court directly. In view of that, the trial Court has decided to send the second sample for analysis. After giving opportunity only, the trial Court sent the samples for resampling in second time. The Judgment relied upon by the learned counsel for the petitioner reported in Thana Singh Vs. Central Bureau of Narcotics, reads as follows:

Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the concerned laboratories, 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.

From the above, it is very clear that if any application has to be made for resampling, it has to be done within 15 days from the date of receipt of the report. Whereas, the said limitation cannot be made applicable to the Court, if it exercised jurisdiction suo motu. Moreover, the Honourable Apex Court did not rule out any resampling. It only says that it can be permitted in extremely exceptional circumstances, giving cogent reason. The trial Court has given reason for resampling, because, the Court directly sent the samples for analysis and did not give an authorisation to one Samuvel, Special Sub Inspector of Police, who received the anlaysis report from the Lab. Hence, the trial Court justifiably had suspicion about the report as the unauthorised person received the said report. In view of that, it comes under the exceptional case and in the interest of justice only, the second sample was done which sought to be done. If the petitioner is sure about his case, he need not fear about the resampling. The reasons given by the trial Court are very reasonable and therefore, this Criminal Original Petition fails and the same is dismissed. Consequently, connected miscellaneous petition is closed.