* + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Order: February 15, 2019 CRL.M.C. 5291/2017 & Crl.M.A. 20752/2017 STATE OF NCT OF DELHI ........ Petitioner
Through: Mr. Rajesh Mahajan, Additional Standing Counsel for State with SI Rakesh Kumar Versus MOHD HEFAJUDDIN ..... Respondent Through: Mr. R.A. Worso Zimik, Advocate CORAM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER
(ORAL) Impugned order of 28th November, 2017 finds the FSL Report to be prima facie faulty and allows respondent’s application for retesting of sample in proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) relating to recovery of 1.5 kg of heroin from respondent. Learned Additional Public Prosecutor for petitioner-State assails the impugned order by pointing out that the option of retesting is not to be granted as a matter of course and it has to be exercised within fifteen days of receiving of FSL report. To submit so, attention of this Court is drawn to Supreme Court’s decision in Thana Singh Vs. Central Bureau of Narcotics (2013) 2 SCC590 Attention of this Court is also drawn to the Crl.M.C.5291/2017 Page 1 of 2 clarification of 4th December, 2017 made in respect of FSL report to explain that due to inadvertence, reference to Parcel ‘A1’ has been made while describing Parcel ‘B1’ and it is submitted that tests have been accurately carried out and the FSL report cannot be labelled as faulty, due to inadvertent description of a parcel. Learned counsel for respondent submits that copy of charge sheet and electronic copy of FSL report was supplied on 18th August, 2017 and the application was filed on 29th August, 2017 and so, it is within fifteen days. It is submitted that the clarification made on 4th December, 2017 is not before the trial court and that the FSL report is faulty and so, the right of retesting ought to be granted to respondent. Upon hearing and on perusal of impugned order, clarification of 4th December, 2017 (which was not before the trial court) and the decision cited, I find that impugned order cannot be sustained as FSL report is required to be proved first and then, its reliability is to be gauged. Accordingly, impugned order is set aside with direction to trial court to record the evidence of FSL expert in the first instance and thereafter, if trial court still finds that re-testing is essential for just decision, then the order on respondent’s application be passed afresh. With aforesaid directions, this petition and application are disposed of, while refraining to comment on the merits of the case. FEBRUARY15 2019 r Crl.M.C.5291/2017 (SUNIL GAUR) JUDGE Page 2 of 2