STATE OF KERALA Vs. DEEPAK P SHAH

JUDGEMENT

(1.) This M. C. is at the instance of the State. Crime No. 117 of 1999 of the Mattancherry Police Station involves offence under S.22 of the N. D. P. S. Act. The item allegedly seized is Lorazepam, which is a Psychotropic substance. Sample A prepared during seizure was sent for chemical analysis through Court to the Regional Laboratory at Kakkanad and the report was in the negative, i.e., against the prosecution. Part of the same stock, involved in another case, when subjected to analysis in the Forensic Science Laboratory, Trivandrum revealed that it contained 'Lorazepam'. Faced with this situation, the Investigating Officer moved the Court for sending another sample (Sample B) available in Court for analysis to the Forensic Laboratory, Trivandrum. The said request was turned down by the learned Special Judge stating that there is no provision to send a second sample as prayed for.

(2.) The learned counsel for the respondent opposed the motion for sending a second sample on various grounds. It was pointed out that unlike in the Prevention of Food Adulteration Act there is no provision in the N. D. P. S. Act for sending a second sample to any laboratory. Yet another contention is that in the instant case no second sample was prepared at all.

(3.) During hearing, the learned Public Prosecutor referred to a decision of this Court in Maniyan v. Excise Circle Inspector & Anr. (Crl. M. C. No. 4208 of 1997), where the motion was not from the prosecution, but from the accused for sending a second sample to a different laboratory other than the one which gave a positive finding. Notwithstanding the objection raised by the State, the request was allowed. The contention of the learned Public Prosecutor before me is that there is no difference between the prosecution and the accused in the matter and that applying the same yardstick the motion from the prosecution also should be allowed.