Muzaffar Ali Vs. Central Narcotic Bureau - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - 905/2007 4. thus, the counsel has stated that the petitioner had a right to get the sample re-examined as he was not satisfied with the first report and doubted its veracity. 5. counsel for the respondent-central narcotic bureau, on the other hand, has fully supported the order of the court below stating that the revision petition itself is not maintainable as the petitioner has filed the present revision against an interlocutory order and consequently there was no such provisions under the act to permit the second examination of the sample of seized contraband merely because the petitioner was not satisfied with the first report. 7. so also the high court as well as the trial court had in the said case observed that there was no provision in the act for sending the sample to another laboratory and thus counsel for the respondent in the present case reiterated that the prayer coming at the fag end of the trial was also another important ground for rejection of the application and petition is therefore, not maintainable on the grounds of inordinate delay also.ordershubhada r. waghmare, j.1. by the present petition, petitioner has challenged order dated 15-1-2009 passed by the special judge, ndps act, neemuch in case no. 10/2005 rejecting the application of the petitioner for submitting the sample a second time for the analysis to the forensic laboratory.2. counsel for the petitioner has submitted that the central narcotic bureau received information on the date of incident, i.e., 19-4-2004 that some narcotic substance has been illegally smuggled by the petitioner and there was half kg. of smack heroin concealed in his house whereupon the house was raided and one of the room inside the house a small iron box was found to contain a blue polythene bag having a powder which was seized and on testing with the departmental-kit, the product was verified and it was found to be heroin weighing 140 gms. out of which two samples of 5 gms. each were prepared and the articles were marked as a-b and further search was conducted of the house whereupon a steel pot in the kitchen was found with soiled water containing opium which was also tested and found to contain heroin dissolved in the water and thereafter 547 gms. were filled in two cans, out of which 50 gms. each were prepared and marked as b and sent to forensic laboratory for examination. the rest of the water was also sent for chemical analysis go government opium & alkaloid factory at neemuch and fsl report (exh. p-29) was obtained. thereafter the investigation was launched and trial was commenced. during the trial the accused petitioner filed an application for re-analysis stating that the earlier report was suspicious and under section 52-a of the ndps act, the sample should be sent to a different laboratory for investigation and the application was rejected by the impugned order and hence the present petition.3. counsel for the petitioner further averred that it was a ground for grievance which ought not to be refused to the accused petitioner and even if there was an absence of specific provision, request should have been allowed. for this purpose, counsel relied on amar singh v. state of punjab 2004 (2) efr 81, whereby the court had directed to send the sample for re-analysis. counsel has also cited the other un-reported decisions of this court to bolster his submissions, which are as follows:(1) dr. t. ahmed v. state of m.p. cr.r. no. 214/1998(2) santosh v. state of m.p. cr.r. no. 153/2002(3) raju @ rajesh v. state of m.p. cr.r. no. 949/2005(4) mohammad naeem v. state of m.p. cr.r. no. 1013/2005(5) shahnawaz v. state of m.p. m.cr.c. no. 6464/2007(6) umar khan v. state of m.p. cr.r. no. 397/2005(7) raju @ jitendra v. state of m.p. cr.r. no. 905/20074. thus, the counsel has stated that the petitioner had a right to get the sample re-examined as he was not satisfied with the first report and doubted its veracity. thus, in the light of the above decisions, counsel contended that the petitioner has right to send the sample for re-analysis under section 243 and under section 311 of the cr.pc and after obtaining the report, the petitioner can always call the expert for examination in the court.5. counsel for the respondent-central narcotic bureau, on the other hand, has fully supported the order of the court below stating that the revision petition itself is not maintainable as the petitioner has filed the present revision against an interlocutory order and consequently there was no such provisions under the act to permit the second examination of the sample of seized contraband merely because the petitioner was not satisfied with the first report. counsel for the respondent has relied on sami ullaha v. superintendent, narcotic central bureau 2009 sar (criminal) 88.6. the apex court considered the contentions in para 8 of the judgment as follows:the learned counsel would contend that unlike the provisions of section 13(3) of the prevention of food adulteration act, 1954, no provision exists in the act for sending one sample to one laboratory and the second to another laboratory.7. so also the high court as well as the trial court had in the said case observed that there was no provision in the act for sending the sample to another laboratory and thus counsel for the respondent in the present case reiterated that the prayer coming at the fag end of the trial was also another important ground for rejection of the application and petition is therefore, not maintainable on the grounds of inordinate delay also. hence, counsel prayed for dismissal of the revision.8. however, on considering the above submissions and the impugned order, i find that first of all the application has been filed by the counsel for the accused during the final hearing of the case almost after 20 minutes of submissions as observed by the learned judge in the order impugned, despite which the trial court considered the said application and found that there was no provision in the act for second examination by chemical analyst and therefore, properly rejected the application. the trial court erred however, in granting time for obtaining order from a superior court.9. from the objection raised by the counsel fort the respondent on the basis of sami ullaha (supra), i find that the apex court has not given any categoric finding regarding the fact that there was no provisions under the act or rules for sending the sample for re-examination. the apex court has held that since there were two contradictory views of the report which were possible then the effect of it must be gone into only at the trial and if two views are possible, the view which leans toward of the accused must be favoured.10. however, the apex court did not direct the trial court to send the sample for re-examination thereby clinching the issue that the veracity of the report can be questioned in trial court and may not be relied on but there is no provision for sending the sample for re-examination again.11. considering the fact that the provisions of the criminal procedure code of 1973 expressly or by necessary implication have not been excluded by the ndps act, it is a self contained code and a special act meant of special nature of offence, then it would not be necessary to call in aid the general provisions of the criminal procedure code unless no provision had been made for the chemical examination of the sample and its report to be supplied to the accused.the central government in exercise of its power conferred upon it under section 9 read with section 76 of the act made the rules. 'chemical examiner' has been defined in rule 2 (c) of the rules to mean 'the chemical examiner or deputy chief chemist or shift chemist or assistant chemical examiner, government opium & alkaloid works, neemuch or, as the case may be, ghazipur'.12. the authorized government laboratory of opium and alkaloid works at neemuch, in the present case, has given its report in accordance with the provision of law and the veracity of the report could be examined by calling the expert for examination but the provisions of the ndps act do not provide for second examination or re-examination of samples by other authority.13. i find that submissions of the counsel for the petitioner are supported by a catina of cases whereby permission has been granted to the accused since it is of utmost importance that the accused must be given adequate opportunity to defend himself and since it is a question of affording proper opportunity to the accused petitioner to lead evidence in his defence the application should have been allowed by the lower court and the impugned order was then set aside.14. in my humble opinion, the interpretation of the term 'adequate opportunity' should be considered within the four corners of the provisions of law, importing any interpretation is not permissible, purely on the ground that it is the intention of the legislation that is required to be seen. adequate provisions have been made under the act as already stated above. the chemical examiner has been defined in rule 2 (c) of the rules to mean 'the chemical examiner of government opium & alkaloid works, neemuch as in the present case'. it is nowhere the petitioner's case that the copy of the report of the chemical analyst was not provided to him. if at all he disagreed with the same, he should have examined the chemical analyst.15. similarly the important fact that cannot be marginalized or blinked away is the fact that the application was made during the final hearing of the case. besides not being maintainable under the provisions of law, it seems to be a ploy to protract proceedings. the incident is of date 19-4-2004 and the samples may not be in proper condition for analysis in the year 2009 and the apex court has cautioned that unwarranted sympathy causes prejudice to the other side, the trial court under these circumstances should have proceeded with the case instead of adjourning it.16. moreover allowing the application despite there being no provision under the act would also lead to spate in litigation by similarly situated accused and which cannot be allowed under the circumstances.17. in the light of the above, i concur with trial court regarding the rejection of the application for second examination filed by the petitioner. the petition is thus, devoid of merit and is dismissed as such. the trial court shall proceed in accordance with law and decide the matter as expeditiously as possible.

Judgment:
ORDER

Shubhada R. Waghmare, J.

1. By the present petition, petitioner has challenged order dated 15-1-2009 passed by the Special Judge, NDPS Act, Neemuch in Case No. 10/2005 rejecting the application of the petitioner for submitting the sample a second time for the analysis to the Forensic Laboratory.

2. Counsel for the petitioner has submitted that the Central Narcotic Bureau received information on the date of incident, i.e., 19-4-2004 that some narcotic substance has been illegally smuggled by the petitioner and there was half kg. of smack heroin concealed in his house whereupon the house was raided and one of the room inside the house a small iron box was found to contain a blue polythene bag having a powder which was seized and on testing with the departmental-kit, the product was verified and it was found to be heroin weighing 140 gms. out of which two samples of 5 gms. each were prepared and the articles were marked as A-B and further search was conducted of the house whereupon a steel pot in the kitchen was found with soiled water containing opium which was also tested and found to contain heroin dissolved in the water and thereafter 547 gms. were filled in two cans, out of which 50 gms. each were prepared and marked as B and sent to Forensic Laboratory for examination. The rest of the water was also sent for chemical analysis go Government Opium & Alkaloid Factory at Neemuch and FSL Report (Exh. P-29) was obtained. Thereafter the investigation was launched and trial was commenced. During the trial the accused petitioner filed an application for re-analysis stating that the earlier report was suspicious and under Section 52-A of the NDPS Act, the sample should be sent to a different laboratory for investigation and the application was rejected by the impugned order and hence the present petition.

3. Counsel for the petitioner further averred that it was a ground for grievance which ought not to be refused to the accused petitioner and even if there was an absence of specific provision, request should have been allowed. For this purpose, Counsel relied on Amar Singh v. State of Punjab 2004 (2) EFR 81, whereby the Court had directed to send the sample for re-analysis. Counsel has also cited the other un-reported decisions of this Court to bolster his submissions, which are as follows:

(1) Dr. T. Ahmed v. State of M.P. Cr.R. No. 214/1998

(2) Santosh v. State of M.P. Cr.R. No. 153/2002

(3) Raju @ Rajesh v. State of M.P. Cr.R. No. 949/2005

(4) Mohammad Naeem v. State of M.P. Cr.R. No. 1013/2005

(5) Shahnawaz v. State of M.P. M.Cr.C. No. 6464/2007

(6) Umar Khan v. State of M.P. Cr.R. No. 397/2005

(7) Raju @ Jitendra v. State of M.P. Cr.R. No. 905/2007

4. Thus, the Counsel has stated that the petitioner had a right to get the sample re-examined as he was not satisfied with the first report and doubted its veracity. Thus, in the light of the above decisions, Counsel contended that the petitioner has right to send the sample for re-analysis under Section 243 and under Section 311 of the Cr.PC and after obtaining the report, the petitioner can always call the expert for examination in the Court.

5. Counsel for the respondent-Central Narcotic Bureau, on the other hand, has fully supported the order of the Court below stating that the revision petition itself is not maintainable as the petitioner has filed the present revision against an interlocutory order and consequently there was no such provisions under the Act to permit the second examination of the sample of seized contraband merely because the petitioner was not satisfied with the first report. Counsel for the respondent has relied on Sami Ullaha v. Superintendent, Narcotic Central Bureau 2009 SAR (Criminal) 88.

6. The Apex Court considered the contentions in Para 8 of the judgment as follows:

The learned Counsel would contend that unlike the provisions of Section 13(3) of the Prevention of Food Adulteration Act, 1954, no provision exists in the Act for sending one sample to one laboratory and the second to another laboratory.

7. So also the High Court as well as the Trial Court had in the said case observed that there was no provision in the Act for sending the sample to another laboratory and thus Counsel for the respondent in the present case reiterated that the prayer coming at the fag end of the trial was also another important ground for rejection of the application and petition is therefore, not maintainable on the grounds of inordinate delay also. Hence, Counsel prayed for dismissal of the revision.

8. However, on considering the above submissions and the impugned order, I find that first of all the application has been filed by the Counsel for the accused during the final hearing of the case almost after 20 minutes of submissions as observed by the learned Judge in the order impugned, despite which the Trial Court considered the said application and found that there was no provision in the Act for second examination by Chemical Analyst and therefore, properly rejected the application. The Trial Court erred however, in granting time for obtaining order from a Superior Court.

9. From the objection raised by the Counsel fort the respondent on the basis of Sami Ullaha (supra), I find that the Apex Court has not given any categoric finding regarding the fact that there was no provisions under the Act or Rules for sending the sample for re-examination. The Apex Court has held that since there were two contradictory views of the report which were possible then the effect of it must be gone into only at the trial and if two views are possible, the view which leans toward of the accused must be favoured.

10. However, the Apex Court did not direct the Trial Court to send the sample for re-examination thereby clinching the issue that the veracity of the report can be questioned in Trial Court and may not be relied on but there is no provision for sending the sample for re-examination again.

11. Considering the fact that the provisions of the Criminal Procedure Code of 1973 expressly or by necessary implication have not been excluded by the NDPS Act, it is a self contained code and a Special Act meant of special nature of offence, then it would not be necessary to call in aid the general provisions of the Criminal Procedure Code unless no provision had been made for the chemical examination of the sample and its report to be supplied to the accused.

The Central Government in exercise of its power conferred upon it under Section 9 read with Section 76 of the Act made the Rules. 'Chemical Examiner' has been defined in Rule 2 (c) of the Rules to mean 'the Chemical Examiner or Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner, Government Opium & Alkaloid Works, Neemuch or, as the case may be, Ghazipur'.

12. The authorized Government Laboratory of Opium and Alkaloid Works at Neemuch, in the present case, has given its report in accordance with the provision of law and the veracity of the report could be examined by calling the expert for examination but the provisions of the NDPS Act do not provide for second examination or re-examination of samples by other authority.

13. I find that submissions of the Counsel for the petitioner are supported by a catina of cases whereby permission has been granted to the accused since it is of utmost importance that the accused must be given adequate opportunity to defend himself and since it is a question of affording proper opportunity to the accused petitioner to lead evidence in his defence the application should have been allowed by the Lower Court and the impugned order was then set aside.

14. In my humble opinion, the interpretation of the term 'adequate opportunity' should be considered within the four corners of the provisions of law, importing any interpretation is not permissible, purely on the ground that it is the intention of the legislation that is required to be seen. Adequate provisions have been made under the Act as already stated above. The Chemical Examiner has been defined in Rule 2 (c) of the Rules to mean 'the Chemical Examiner of Government Opium & Alkaloid Works, Neemuch as in the present case'. It is nowhere the petitioner's case that the copy of the report of the Chemical Analyst was not provided to him. If at all he disagreed with the same, he should have examined the Chemical Analyst.

15. Similarly the important fact that cannot be marginalized or blinked away is the fact that the application was made during the final hearing of the case. Besides not being maintainable under the provisions of law, it seems to be a ploy to protract proceedings. The incident is of date 19-4-2004 and the samples may not be in proper condition for analysis in the year 2009 and the Apex Court has cautioned that unwarranted sympathy causes prejudice to the other side, the Trial Court under these circumstances should have proceeded with the case instead of adjourning it.

16. Moreover allowing the application despite there being no provision under the Act would also lead to spate in litigation by similarly situated accused and which cannot be allowed under the circumstances.

17. In the light of the above, I concur with Trial Court regarding the rejection of the application for second examination filed by the petitioner. The petition is thus, devoid of merit and is dismissed as such. The Trial Court shall proceed in accordance with law and decide the matter as expeditiously as possible.