JANRAIL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This criminal revision has been filed against the order dated 17. 5. 2008 passed by the Additional Sessions Judge, Court No. 7, Varanasi, in Criminal Case No. 233 of 2007, State Vs. Janrail Singh, whereby an application moved by the revisionist for re-examination of the recovered contraband material was rejected. It appears from the record that Criminal Case No. 233 of 2007, State Vs. Janrail Singh, u/s 8/21 N. D. P. S. Act, Police Station Kotwali, District Varanasi, was pending in the Court of Additional Sessions Judge, Court No. 7, Varanasi. In this case the allegation against the revisionist was that he was found in possession of 4 Kg. 820 Gms. of Heroin on 19. 9. 2007, regarding which the report of Forensic Science Laboratory, Ram Nagar, Varanasi, was received, which confirmed the material as Heroin. The revisionist moved an application for re-examination of the alleged recovered contraband material, which was rejected on 15. 12. 2007. He then moved another application. By this application he contended that the chemical analysis of the recovered contraband material was not done by an authorised Forensic Science Laboratory and that the report did not show the percentage of the narcotic drug, hence it was necessary that the alleged recovered material be again analysed by an authorised Forensic Science Laboratory and the Laboratory should give the actual percentage of the narcotic drug. This application was rejected by the trial court on two grounds, firstly, that there was no propriety to obtain the percentage of morphine in the recovered material and the jurisdiction of the Forensic Science Laboratory, Ram Nagar, Varanasi, shall be seen after the evidence. I have heard Mr. S. Niranjan, learned counsel for the revisionist, learned AGA for the State and perused. As held by the Apex Court in 2008 (61) ACC 660, E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, that only the actual content by weight of the narcotic drug is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, which is also necessary for the court below to know for what quantity of the narcotic drug the revisionist was required to be charged and tried. As this was not known to the court from the chemical examination report, therefore, the Court should have allowed the request made by the revisionist so as to afford him an opportunity of fair trial. This could be done by the court inspite of the fact that no provision for re-examination of the contraband material is provided under the N. D. P. S. Act as the ends of justice needed the same. 2007 Cri. L. J. 2074, Nihal Khan Vs. State (Govt. of NCT of Delhi ). Thus, not permitting the re-examination of the alleged recovered material was an improper order of the court below, which is liable to be set aside. Now comes the question as to whether the Forensic Science Laboratory, Ram Nagar, Varanasi, is an authorised laboratory for testing the alleged contraband or not, in that regard the matter should have been decided by the trial court at the time when the objection was raised. If it was not done and ultimately the contention of the revisionist was found to be correct then the trial would unnecessarily be prolonged hence to avoid such contingency the above question required determination when it was raised. In view of the above, I allow this revision and quash the order dated 17. 5. 2008. It is directed that the trial court shall first determine as to whether the testing was done at an authorised laboratory or not and thereafter the recovered contraband material shall be sent for chemical analysis by an authorised laboratory after drawing the sample from the remaining case property for knowing as to what is the percentage of the narcotic drug in it. .