IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. M M O No. 21 of 2009 Date of decision: 20.4.2009 Hussain Khan ….. Petitioner Versus State of H.P. ….. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioner: Mr. Rakesh Jaswal, Advocate. For respondent Mr. J.S.Guleria, Asstt. Advocate General, for respondent . Surinder Singh, J. (Oral) The petitioner herein is an accused in Sessions trial No. 8-1 of 2008, pending before the Additional Sessions Judge -1 (Special Judge), Kangra at Dharamshala, facing trial under Section 20 of the N.D.P.S. Act, which has arisen from FIR No. 262/2007 dated 25.12.2007, registered in Police Station Indora District Kangra, H.P. allegedly found in possession 12 Kg. of charas in 12 separate packets. On perusal of the record, it transpires that during the course of arguments, the learned counsel for the petitioner had taken the plea that according to the case of prosecution, 12 packets of 1 Kg. each of the alleged contraband were recovered from the possession of the petitioner 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - but the sample drawn from one packet was sent for the forensic examination, therefore, it was not known what were the contents of 11 other packets. On this, learned Public Prosecutor had moved an application under Section 311 of the Code of Criminal Procedure seeking the permission for getting the samples of remaining 11 packets examined from the chemical analyst, which was though resisted and contested by the accused- petitioner, but was allowed by the learned trial court on 9.2.2009 and directed the Investigating Officer/SHO to take sample in the court from out of the 11 packets if so desired by the accused in his presence and the case was fixed for 20.2.2009 for report of the Chemical examiner. It is alleged that the samples were drawn on 10.2.2009 and the accused was not associated. Thereafter accused-petitioner moved an application in the court seeking withdrawal of the case from his court and to transfer the same to some other court as the samples of the contraband were taken in pursuance of the order of the Additional Sessions Judge (1). The said application was dismissed as not maintainable. Thus, present petition under Article 227 of the Constitution of India read with Section 407 of the Code of Criminal Procedure, has been filed on the ground that the accused- petitioner has been prejudiced with the procedure adopted by the learned trial - 3 - court and it would not be reasonably possible for him to take the point with respect to withdrawal of the sample before him during the final arguments as the court itself had become witness of sampling. Thus, it would be very difficult for the petitioner to plead and argue this case free and fearlessly thus sought the withdrawal of the case from his court with a prayer to send it to some other competent court of jurisdiction, to avoid any miscarriage of justice. Notice of this petition was given to the respondent-State. In pursuance of this, the reply has been filed wherein it is admitted that as per order of the learned trial court, sample from remaining 11 packets were drawn and sent to the Chemical Examination as per the orders of the court. I have heard learned counsel for the petitioner and learned Assistant Advocate General for the respondent-State and have carefully gone through the record of the case. There is no document placed on record to show that the samples were taken on 10.2.2009in the presence of the accused-petitioner but the learned counsel for the petitioner submitted that at the time of sampling in the court accused was not associated. Be it as it may, in my opinion, for the fair and impartial trial, it is expedient in the interest of justice that Sessions case No. - 4 - 8-1 of 2008 titled State versus Hussain Khan is withdrawn from the court of Additional Sessions Judge -1 and sent to the court of Additional Sessions Judge (II) Kangra at Dharamshala who is also Special Judge under the Act, for its disposal in accordance with law. It is thus directed that the record of the trial be sent by the Additional Sessions Judge (1) Kangra at Dharamshala, to the Court of Additional Sessions Judge (II) Kangra at Dharamshala forthwith for its disposal, by the transferee court, in accordance with law. Parties are hereby directed to appear before the transferee court on 14.5.2009. The petition stands accordingly disposed of. Cr.M.P. No. 111 of 2009. Infructuous, in view of the disposal of the main petition. April 20, 2009 (Surinder Singh),J. (cm)