1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2911 OF 2009 Manpreet Bal .. Petitioner Versus Union of India & Anr. .. Respondent Mr.M.I.Saggar with Mr.Anil Lalla i/b. Lalla & Lalla for petitioner Ms.Poornima Kantharia for respondent No.1 Mr.D.R.More APP for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 4th February 2010. P.C.: 1] The petitioner claims to be a Canadian National of Indian origin. He is also claiming to be residing in District Yamuna Nagar. 2] He is accused No.2 in NDPS Special Case No.137 of 2008 on the file of learned Special Judge, Mumbai. 3] By this petition under Article 227 of the Constitution of India read with Section 482 of Cr.P.C., the petitioner challenges the orders dated 20th November 2008 and 4th Decemberr 2008 in the subject Special case. The 2 substantive relief that he claims is of quashing of the complaint/ special case No.137 of 2008. This application / petition is filed in this Court on 15th October 2009. 4] The first respondent complainant has alleged in the complaint that on the basis of a specific information that the petitioner is exporting substantial quantity of Ephedrine a controlled substance to Mexico through one company by name CNC Technology Pvt.Ltd., Ludhiana by allegedly misdeclaring it, that the officcers of Narcotics Control Bureau (for short NCB) reached the export shed of Sahar Air Cargo complex from where the consignment was to be exported. They positioned themselves and about 18.30 hrs., one small tempo bearing registration number more particularly described in the complaint, belonging to one Clear Fast Air Cargo Agencies Pvt.Ltd. Docked at the unloading area and two persons alighted from the vehicle. They handed over documents to another person who was wearing grey coloured uniform of the Cargo Agency. Thereafter, totally four fiber drums were unloaded and carted to the Air Cargo shed. The officers kept watch on all the persons, who then submitted the documents to the officer of Mumbai International Airport Ltd. And Customs for endorsement. Thereafter, these documents were 3 handed over to the persons at which point of time all three who were present were intercepted by the officers and after they disclosed their identity, the officers and the complaining party was led to the petitioner. It is not necessary to refer to the other allegations in the complaint which are detailed and extensive and praying that each of the accused, including the petitioner, have committed offences punishable under the NDPS Act. 5] The complaint was filed on 17th November 2008. 6] The applicant applied for bail after being arrested and his application was granted by the learned Special Judge vide order dated 19th November 2008. The learned Judge observed that on the date on which the bail application was decided, the complaint does not disclose that the substance found with the petitioner is covered by the NDPS Act. On such a prima facie finding, the petitioner was enlarged on bail on the terms and conditions set out in the said order. 7] It is then alleged that the matter was placed before the Special Judge and a request was made to postpone issuance of process. At that time, on behalf of the petitioner, it was argued that the Court should not 4 take any cognisance of the complaint for the simple reason that the report submitted by the Chemical Analyser is NIL report. In these circumstances, when the substance seized is not covered by the NDPS Act and there is no material to show that the applicant is guilty of the offences alleged, the Court should not take any cognisance of the complaint. 8] The learned Special Judge heard both the petitioner and the learned Special Public Prosecutor and by an order dated 20th November 2008, held that the prosecution has forwarded the sample to another laboratory and the report thereon is awaited. In these circumstances, while refusing to accede to the request of the petitioner to discharge him from the proceedings, the learned Judge postponed the issuance of process. 9] From the record it appears that the earlier report for the samples tested did not answer positive for Ephedrine. However, the complainant sent a second set of sample for testing to Central Forensic Laboratory, Hyyderabad on 3rd October 2008 and till the filing of the complaint on 17th November 2008, the report of the Analyst was not received from this laboratory. Thereafter, the report has been received which is dated 28th 5 November 2008 and which denotes that Ephedrine was detected in all the four samples sent for analysis. In these circumstances, the prosecution prayed that the process be issued against all four accused and cognisance be taken of the offences mentioned in the complaint. This application was made on 15th December 2008 and annexed therewith was the examination report from the Central Forensic Laboratory, Hyderabad. 10] On this application, the learned Judge heard parties and by his order dated 18th December 2008, issued process against the accused Nos. 1 to 4 under section 21 read with sections 9A, 25A and 29 of the NDPS Act. 11] It is not necessary for me to deal with the other aspects of the matter because, it is common ground that an application (Exh.45) was made in the Special case on behalf of the petitioner accused seeking permission of the Special Judge to travel to Canada. By an order dated 25th June 2009, the said application was rejected. Aggrieved by that order, the petitioner approached this Court by instituting Criminal Revision Application No.424 of 2009. That Revision Application was placed before the Single Judge of this Court, who by an order dated 30th 6 July 2009 was pleased to reject it. 12] Aggrieved by both rejections the matter is now carried to the Hon’ble Supreme Court and is stated to be pending. 13] The Special Case has been expedited by the learned Single Judge of this Court. The matter is pending for framing of charge. It is at that stage that the present petition has been moved by the petitioner seeking aforementioned reliefs. 14] Mr.Saggar, learned Senior Counsel appearing for petitioner submitted that the only ground on which the petitioner seeks discharge from the proceedings/ quashing of entire case is that NDPS Act and more particularly section 52A thereof read with the instructions and circulars of the NCB contemplate that a duplicate sample cannot be sent in the circumstances that have been set out in the application of the complainant in this case. In other words, unless and until there is compliance with the mandate of section 52A so also with the relevant instructions and circulars, there is no question of prosecution calling for a further report by sending a duplicate sample for analysis as has been done in the instant 7 case. He submits that such an act on the part of the complainant vitiates the entire case and there is a breach of the mandate of the section in question. Such a breach would result in the proceedings themselves being untenable and not maintainable. Therefore, this is a fit case for this Court to exercise its powers under Article 227 and Section 482 of Cr.P.C. and grant reliefs as prayed. 15] The learned Senior Counsel has placed reliance upon a decision of the Punjab and Haryana High Court rendered in Criminal Misc.No.9461- M of 2002 dated 25th November 2002 (Jarmanjit Singh and Anr. Vs. State of Punjab) reported in 2003 (2) RCR (Criminal) 753. He submits that the learned Judge of the Punjab and Haryana High Court has noted all relevant statutory provisions and instructions of NCB so also the case law in the field. He has held that the prosecution is bound by the standing instruction No.1 of 1988 dated 15th March 1988 issued by the NCB, New Delhi. These instructions are in relation to drawing search, testing and disposal of samples seized under the Act and procedure to be followed in that regard. Reliance is placed upon paras 10, 11, 12, 20 and 27 of the said decision of the Punjab and Haryana High Court in support of his contentions that the Investigating Officer is bound to follow the 8 procedure prescribed in section 52A(2) of the NDPS Act. The question is what would be the consequence of non compliance of these provisions. If non compliance therewith renders the search and seizure illegal, then, the case itself is not maintainable in law. It is submitted by the learned Senior Counsel that in the present case, the facts are identical. Despite the first report being available on record, the prosecution on its own has called for fresh test and report solely for the purpose of overcoming the findings in the first report. There is no statutory sanction under the provisions of the Act or guidelines and the second report, therefore, cannot supersede the first report. If such a course is allowed and permitted, then, the earlier tests and reports which are on record and which clearly state that Ephedrine has not been found on testing of the samples, stand nullified by second report. For all these reasons, he submits that this is a fit case where the proceedings themselves be quashed. 16] He submits that the observations in the order of the learned Single Judge of this order would not prevent the petitioner from applying for this relief, inasmuch as, in that application all that the learned Judge was concerned with was a permission to travel abroad sought by the 9 petitioner. During the course the order, the learned Judge may have observed that the course adopted by the prosecution is not impermissible but such a conclusion cannot bind this court and in any event, should be construed as a mere expression of opinion and not a binding precedent. No contention was raised about the second report and, therefore, there was no occasion for the learned Judge to have opined on the same. 17] On the other hand, Ms.Kantharia, learned PP appearing on behalf of complainant urged that the matter is pending before the Court below for framing charges. This is not a stage at which this Court should interfere and render any conclusive finding. It is not as if the petitioner and other accused have no opportunity in law to satisfy the trial court that the second report should not be accepted and relied upon. However, merely because the second report has been called for and has been taken on record by the Court below does not mean that the contentions and pleas as raised cannot be raised any longer. They are not concluded by the order issuing process. These are merely prima facie observations and do not bind the Judge while trying the case finally. In any event, the view taken by the learned Judge of the Punjab and Haryana High Court with regard to the provisions in question, with respect, should not be accepted 10 at this stage to quash the proceedings. The view taken is on the basis that section 52A(2) applies at this stage. She submits that in any event if the learned Judge was of the opinion that section 52A(2) contains mere procedural provisions, then, any violation or breach thereof would not render the proceedings void or bad in law. Ultimately, whether compliance with these procedural provisions has resulted in any prejudice to the accused or not is a matter which must be gone into and decided in such case. By mere inaction or by sending a sample for fresh analysis and report, the prosecution should not be said to have breached any mandatory provisions, much less, section 52A of the NDPS Act. Any opinion at this stage would mean that the prosecution has no chance or opportunity to prove the charges levelled against the accused. By closure of the proceedings, public interest would be adversely affected. This Court as well as the Hon’ble Supreme Court has observed repeatedly that the act has been enacted so as to control the menace which has been prevailing on account of free availability and access to narcotic drug and substances covered by the Act. She submits that whether the seized substance in this case is covered by the Act or not must be decided at the trial and, therefore, such an opportunity should not be denied to the prosecution. For all these reasons and since no prejudice is pointed out 11 this court should not exercise its discretionary, equitable and extra ordinary jurisdiction to quash the proceedings. 18] With the assistance of the learned Counsel appearing for both sides I have perused the petition and annexures thereto including the orders made from time to time. In my view, in the peculiar facts of this case any larger controversy need not be decided at this stage. In para 8 of the order passed by the learned Judge on 30th July 2009, identical plea was raised and the learned Judge referred to both, section 52A(2) and the guidelines/ standing instructions issued by NCB and observed that conjoint reading of both provisions, prima facie does not indicate any absolute bar for the prosecution sending samples to two different laboratories. In her opinion, in any case, this aspect will have to be considered by the trial court at the time of trial. 19] The matter in which this order has been passed by the learned Single Judge is now pending before the Hon’ble Supreme Court. Assuming that these observations of the learned Single Judge would not prohibit or preclude the petitioner from invoking this Court’s inherent jurisdiction so also the constitutional provisions under Article 27 of the 12 Constitution of India, in my view, in the peculiar facts of this case, this jurisdiction need not be exercised to quash the proceedings. Admittedly, the process has been issued in this case summoning all accused. The complaint was made on 17th November 2008. The prosecution has disclosed that the first sample which was forwarded has been returned with “Negative report”. However, it has been noted by the court below that the sample was forwarded by Zonal Director, NCB Mumbai on 3rd October 2008 to the Central Forensic Laboratory which is received by the said laboratory on 7th October 2008. The complaint alleges that the consignment was being loaded on 20th September 2008. The search and seizure have been carried out and the accused were arrested. The complaint was filed on 15th November 2008. Therefore, the prosecution urges that it is not as if, after the complaint was filed that the second analysis/ test was called for from the concerned lab. The samples were already forwarded. There was a report received from one laboratory and the second report of analyser is dated 28th November 2008. While it is true that the report is received from the laboratory after the complaint was filed, yet, the prosecution requested the Special Judge to postpone issuance of process. The request was acceded to and after the report came to be placed on record, the learned Judge has proceeded to issue 13 process against all the accused. 20] To my mind, in this case, when the facts are peculiar, one cannot straightaway conclude that the second report has no evidentiary value. Ultimately, both reports are placed on record by the prosecution and their evidentiary value will be decided at the trial. At the prima facie stage, it cannot be held conclusively that the course adopted by the prosecution was impermissible in law and, therefore, the second report be discarded. When two samples are being forwarded and two reports being placed on record, which report ought to be relied upon and accepted is something which must be decided at the trial. At this stage, it will not be proper to deny the prosecution an opportunity of proving that the seized substance comes within the purview of the NDPS Act and, therefore, an offence has been committed by the accused. By such a course no prejudice would be caused to the petitioner inasmuch as, he has been enlarged on bail and at the trial, he would have full opportunity to cross examine the witnesses and produce such evidence as is permissible in law. Therefore, the applicability of the decision of the Punjab and Haryana High Court relied upon by the learned Senior Counsel can also be gone into at that stage. While it is true that the learned Single Judge of the Punjab and Haryana 14 High Court quashed the proceedings themselves, he had done so because he concluded that the record shows that the Investigating officer had not sought permission of the Court at the time when he sent the second sample for analysis to the Central Forensic Laboratory Chandigarh. Further, the learned Judge has not addressed himself to the crucial issue as to whether Section 52A is at all applicable and attracted and whether non compliance with section 52A(2) and the procedure prescribed therein would render the search and seizure illegal. Without deciding that question, he has held that the sample to be sent for analysis has to be taken in the presence of a Magistrate and has to be duly certified by him. 21] Para 27 of the order passed by the learned Single Judge of the Punjab and Haryana High Court reads thus:- “27. In the present case, the facts are entirely different even from the earlier case Vishwas Bhosle, Assistant Collector of Customs Vs. Onyekwo Felix Nwafar and another (supra). It is manifest from the record in this case that the Investigating Officer had not sought the permission of the Court at the time when he sent the second sample for analysis to the Central 15 Forensic Science Laboratory, Chandigarh. The Investigating Officer had also not followed the procedure prescribed in Section 52A(2) of the Act. The question whether non compliance of these provisions would render the search and seizure illegal and would degenerate recovery of the poppy husk as inadmissible is not required to be determined in this case. The fact remains that it has been specifically provided in clause (c) of sub-section (2) of Section 52A that the sample to be sent for analysis has to be taken out in the presence of Magistrate and it is required to be duly certified by him. The spirit of these provisions is required to be followed as and when the original sample is lost in transit or otherwise where trial court on being satisfied from the material placed on record orders for the second test as envisaged in Standing Instruction No.1/88 dated 15th March 1988 referred to above. In the present case, despite the first report of the Chemical Examiner being available on record the police of its own has moved the Chemical Examiner for a fresh test and report solely for the purpose of overcoming the findings given in the first report. Such a course was not warranted under the 16 circumstances of the case and cannot be upheld. There is no stattory sanction under the provisions of the Act or the guidelines issued by the statutory sanction under the provisions of the Act or the guidelines issued by the Narcotics Control Bureau, New Delhi that second report of the Chemical Examiner of the State Government or Forensic Science Laboratory or the Central Government would supersede the first report. Upholding the course adopted by the Investigating officer in this case would result in anomalous position. There is no reason or basis to ignore the report of the Chemical Examiner, Government Laboratory, Jalandhar who on analysis had found the contents of sample not to be poppy husk because it cannot even be urged from the side of the State – respondent that first sample sent for analysis to the chemical examiner, Government Laboratory, Jalandhar had been lost or destroyed and for that reason the Investigating Officer had sent the other sample for analysis to the Central Forensic Science Laboratory, Chandigarh. Even otherwise, the net consequence of obtaining analysis report of the second sample by the Investigating Officer is that contents of the 17 sample, drawn from the same bulk poppy straw are different which creates doubt as to the acceptability of entire recovery of bulk of 60 kgs. of Poppy straw. In this case, the Investigating Officer has deliberately not chosen to get any certification of the Magistrate before sending the second sample for re-analysis as discussed earlier. Therefore, the second analysis report obtained by the Investigating Officer from the Central Forensic Science Laboratory, Chandigarh cannot be made the basis for prosecution of the accused.” 22] The factual position is noted by the learned Judge in para 2 of his order. What was before him was a request to quash the FIR. That was on the ground that the sample which was sent to the Chemical Examiner at Government Laboratory, Jalandhar, resulted in a report that the contents were not Poppy Husk. This was the first report. Thereafter, the second sample was sent and on analysis, it was found to be containing Poppy straw. On a completion of the investigation challan was put in Court on 21st March 2002. Taking into consideration the police report and the documents annexed therewith the charge under section 15 was framed 18 and, thereafter, the case was posted for prosecution evidence and it is at this stage the application for quashing was made. 23] Before me, the prosecution had filed a complaint on 17th November 2008. It made the subject application for postponment of issuance of process and that application was made on 15th December 2008. The learned Judge postponed issuance of process. In these circumstances, whether in such peculiar facts the prosecution can be said to be so vitiated as to quash it at this stage is a matter which would require going into larger controversy as to whether section 52A and 52A(2) of NDPS Act is applicable and mandatory or not. As I have already clarified, I am not inclined to go into that controversy. I would prefer to keep it open in the peculiar facts of this case. More so, as section 52A reads thus:- “52A:- Disposal of seized narcotic drugs and psychotropic substances (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the 19 official gazette specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2)Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer -in- charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country or origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to 20 any Magistrate for the purpose of - (a) Certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c)allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn; (3)Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872