Excelsior Correspondent
Srinagar, Feb 27: The High Court has held that re-testing of seized narco drug samples can’t be allowed in a routine manner as its mechanical and haphazard import from other statute without the statutory restrictions is impermissible.
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Justice Rajesh Sekhri said this while dealing with a bail application along with a petition seeking quashing of proceedings arising out of a case registered by Narcotic Control Bureau (NCB) by underscoring that under the NDPS Act, re-testing cannot be permitted as a matter of routine and is strictly barred in the absence of compelling and exceptional circumstances:
“Re-testing or re-sampling under the NDPS Act may be permitted only in extremely exceptional circumstances, for cogent reasons to be recorded by the presiding judge, and that too upon an application filed within 15 days of receipt of the test report. In the absence of such compelling circumstances, any form of re-testing is strictly prohibited”, read the judgment.
The NCB intercepted two vehicles and claimed recovery of 870 grams of suspected contraband from the accused persons. Field testing allegedly indicated heroin, leading to seizure of the substance and registration of offences under Sections 8, 21, 25, 29 and 60 of the NDPS Act.
A sample of the seized substance was sent to CRCL, New Delhi, for chemical analysis. The laboratory report, however, categorically ruled out the presence of heroin or any other narcotic drug or psychotropic substance, though it indicated the presence of Viagra. On the basis of this report, the trial court granted interim bail to the accused.
Despite the negative laboratory report, the prosecution moved an application seeking re-testing of the second sample, which was allowed by the trial court on the same day without recording any reasons. The second report from CFSL, Chandigarh, detected Tramadol, Caffeine and Dextromethorphan. Relying upon this report, the trial court recalled interim bail and remanded the petitioners to judicial custody, prompting the present challenge.
The counsel for the accused submitted that the NDPS Act does not permit re-testing of samples once a competent laboratory has returned a clear and categorical report.
Opposing the plea, counsel for the NCB submitted that a commercial quantity was recovered from the conscious possession of the accused and that the rigours of Section 37 of the NDPS Act were attracted. It was argued that the charge-sheet disclosed prima facie involvement of the petitioners and warranted continuation of proceedings.
Justice Sekhri after hearing the parties and perusing the record, said the approach of the prosecution as well as the trial court to be wholly contrary to settled law. The Court noted that the NDPS Act consciously omits any provision permitting routine re-testing or re-sampling, unlike other statutes such as the Drugs and Cosmetics Act or the Prevention of Food Adulteration Act, which expressly provide timelines and safeguards for such a course.
Referring to the apex court ruling, reiterated the growing tendency of NDPS courts to mechanically allow re-testing applications, leading to delay and abuse of process. “Re-testing may be an important right of an accused, but the haphazard manner in which such right is imported from other legislations without its accompanying restrictions is not permissible,” the Court observed.
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