SALIM ALIAS KALLU Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) This application under Section 482 Cr.P.C. has been made by the appellant during the pendency of the appeal. The appellant was convicted by the Special Judge under Section 21(c) NDPS Act for possessing 400 gms. of smack in FIR No. 36/2001. The appellant submitted that in view of the judgment of this Court in Ansar Ahmad v. State 2005(3) JCC (Narc) 193 ascertainment of percentage of the narcotics substance in the recovery made from the appellant was necessary to come to the conclusion whether the appellant was in possession of small quantity or commercial quantity of the morphine. The substance recovered from the appellant tested positive for diacetylmorphine as per the FSL report however, the FSL did not determine the percentage of the diacetylmorphine in the substance. The appellant therefore, could not get the advantage of judgment given by this Court in Ansar Ahmad v. State. The appellant submitted that he had a strong belief that percentage of the contraband in the recovery made from him was likely to be minute and even if, the percentage content was 50% still the total recovery would be below the commercial quantity. He therefore, prayed for sending another sample of the substance to the FSL during the pendency of the appeal.

(2.) The issue raised by the counsel for the respondent is, whether during the pendency of this appeal, the Court in exercise of its inherent jurisdiction can order for further investigation or re-investigation of the sample.

(3.) There is no provision under Cr.P.C. which permits re-testing of sample during the pendency of the appeal. The investigation of an offence is to be done by the police in terms of the statutory powers granted to the police under Cr.P.C. The Court has no role to play in the investigation unless there exists any extraordinary situation. If the accused or the State are not satisfied with the investigation, they are at liberty to move an appropriate application before the concerned MM under Section 173(8) of the Cr.P.C. requesting the Court to order for further investigation or re-investigation on some aspect. In the present case, accused had full opportunity to request the Trial Court for further investigation but the appellant did not avail this opportunity.