No person can be tried under NDPS Act without expert opinion: HC

Excelsior Correspondent

Srinagar, Jan 23: High Court said that the offences under the NDPS Act are not ordinary and can be proven by way of ocular evidence for that opinion of expert is necessary and no person can be tried or convicted for commission of offence under the NDPS Act without expert opinion.
The court was hearing a petition seeking quashing of FIR registered under NDPS Act with the Police Station Sumbal.
Court said those offences can be proved by way of optical evidence. It further added that in such type of matters, the opinion the Chemical Analyst or Scientific Expert is very material. Court said simply on the basis of oral testimony and without there being any report from the Chemical Analyst or Scientific Expert that the particular substance is either a narcotic drug or psychotropic substance, no person can be tried or convicted.
Court for prosecuting or convicting a person for commission of such offences said, it is necessary to have the opinion of expert about the substance recovered from the alleged accused. The counsel of the accused persons Nazir Ahmad Dar and Mohammad Afzal Dar submitted that after the conclusion of the investigation and filing of charge sheet before the court of law, charges have been framed against the petitioners for commission of offence under Sections 8, 21 and 29 of NDPS Act.
He submitted that the FSL report on which the prosecution relies, reveals that the material allegedly recovered from the accused  is not brown sugar as is alleged in the charge sheet as such no offence is made out and the charges framed by the trial court are bad in law and required to be quashed.
High Court after having the glance at the FSL report and after hearing the FSL expert who stated before the court that only those tests were performed to determine the identity of the substance sent for the examination, the facility of which was available in the FSL Srinagar and categorically stated that certain other tests were not performed as the facilities were not available in Srinagar.
“It is strange that FSL expert had not said so in his report which is otherwise being expert was expected to do so. The offence under NDPS are serious offences having the potential of cause damage to the society and play havoc with the economy of a country and due to these reasons harsh punishments have been provided in the Act”, Justice Oswal recorded.
Court on functions of experts said  they under the Act are to ensure that the reports submitted by them are not vague as the fate of investigation and trial is dependent upon their report. The vague report court added, may lead to escape of an offender who could have been convicted.
Court has also rapped the prosecution for not laying a motion before the trial court for retesting of the seized substance particularly when the FSL report was incomplete and not conclusive in nature as to identify the recovered material as such prosecution has failed in its duty.
Court also said that it fails to understand as to how the trial court determined the identity of the recovered substance in absence of retesting and the trial court could have directed the IO for retesting the recovered material.
“This court is of the considered view that the trial court has fallen in grave error of law by charging the accused for commission of offences in absence of the report of Analyst and the petitioners  are being charged fell within the mischief of the Act”, reads the judgment.
Court further added, that the trial court is not supposed to act as a post office even at the time of framing of charges and charges are not to be framed merely because the challan of commission of a particular offence has been filed against the accused persons.
Court has said, that there is lapse on part of the FSL expert as well as prosecution and added that the court cannot ignore the lapses on their part and in this view the case in hand can be termed as an exceptional case.
In this view, court held the charges framed against the petitioners by the trial court are unsustainable and set aside those charges and directed the IO to further investigate the matter and get the seized material retested from the approved Government laboratory having all facilities in order to determine the seized substance within a period of 60 days.