Crl. M.C. No. 3680 of 2009 Page 1 * HIGH COURT OF DELHI : NEW DELHI Judgment reserved on: February 11, 2010 Judgment pronounced on: February 19, 2010 + Crl. M.C. No. 3680 of 2009 % Nepal Chand @ Doctor ... Petitioner Through: Mr. Sanjay Suri and Mr. Rishabh Relan, Advocates. versus State (Delhi Administration) ... Respondent Through: Mr. R.N. Vats, Additional Public Prosecutor with SI Rajeev Singh CORAM: HON'BLE MR. JUSTICE SUNIL GAUR 1. 2. 3. Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? No. SUNIL GAUR, J. 1. Petitioner is facing trial in FIR No. 43 of 2008, under Section 21/29 of the NDPS Act, 1985, registered at Police Station Narcotic Cell, Delhi. His application for sending fresh Crl. M.C. No. 3680 of 2009 Page 2 samples from the case property of this case, for re-testing stands declined vide impugned order of 23rd September, 2009, by the trial court. 2. Aforesaid application was filed by the petitioner-accused at the stage of defence evidence. Petitioner claims that the case property i.e. 150 grams of Heroin when produced before the trial court, it was of different colour, which raises a reasonable doubt about the samples tested, to be tampered one. 3. During the hearing of this petition, counsel for the petitioner had placed on record copy of the FSL Report of this case and of the depositions of the Investigating Officer (PW-4) and that of the MHC (M) (PW-6) and of the Constable (PW-5), who had taken the samples of this case to FSL. The reason to doubt the veracity of the testimony of the aforesaid witnesses, put-forth by the petitioner’s Counsel is that the Investigating Officer has admitted in his evidence that the seal with which the case property was sealed, was returned back to the Investigating Officer by the witness concerned on the next day of this incident and by that time the case property of this case Crl. M.C. No. 3680 of 2009 Page 3 was still lying in the malkhana. 4. It may be so. But for retesting of the case property and that too, at the fag-end of the trial, a strong case has to be made out. Since the stage of recording of the prosecution evidence is over, therefore, it is within the domain of the trial court and not of this Court to look into the aforesaid evidence sought to be relied upon by petitioner’s Counsel. 5. In a somewhat similar case, another Bench of this Court in ‘Nihal Khan v. State’ 2007 [1] JCC [Narcotics] 37, had remanded the matter back to the trial court to consider application for retesting of samples afresh. In the light of the observations made in Para-15 of the aforesaid case, this Court finds that the proper course would be do likewise. 6. This Court refrains from commenting on the merits of this case, lest it may prejudice the trial of this case which is at its final stage. In the considered opinion of this Court, the belated application in question, was not required to be decided at the stage of defence evidence itself and the appropriate course would have been to decide it after hearing the final arguments. Although the impugned order is being interfered Crl. M.C. No. 3680 of 2009 Page 4 with, but not on merits of this case. Impugned order is being set aside solely on the ground that the proper stage in this peculiar case was at the final stage of arguments, to deal with the application in question. It is clarified that the contentions raised in the application in question and before this Court, are left open to be decided by the trial court after hearing the main case. This is to say that any observation made in the impugned order or in this order shall not stand in the way of the trial court to apply its mind afresh to the whole case at the stage of final arguments and to consider the feasibility of acceding to the prayer of the petitioner for retesting, if exceptionally good case for doing so is made out. Such a course is being adopted in the peculiar facts of this case and it is made clear that it would not be treated as a precedent. 7. Resultantly, the impugned order is set aside and the trial Court is directed to decide petitioner’s application of 4th September, 2009, afresh, in the light of the evidence on record with promptitude. Trial Court be apprised of this order forthwith as final hearing before the trial Court is stated to take place tomorrow. Crl. M.C. No. 3680 of 2009 Page 5 8. This petition and pending application stand accordingly disposed of. 9. Dasti under the signatures of the Court Master. Sunil Gaur, J. February 19, 2010 rs