Retesting Prohibited Under NDPS Act Unless In Exceptional Circumstances, Request Must Be Made Within 15 Days Of FSL Report: Rajasthan HC
Rajasthan High Court has reiterated that retesting or resampling in drugs cases is generally prohibited under NDPS Act, and it cannot be allowed in a routine manner. It could be ordered only in exceptional circumstances by the Trial Court after providing specific reasons and establishing reasonable grounds for such direction.The bench of Justice Farjand Ali advised the DGP, Rajasthan to...
Rajasthan High Court has reiterated that retesting or resampling in drugs cases is generally prohibited under NDPS Act, and it cannot be allowed in a routine manner. It could be ordered only in exceptional circumstances by the Trial Court after providing specific reasons and establishing reasonable grounds for such direction.
The bench of Justice Farjand Ali advised the DGP, Rajasthan to ensure that a written communication shall be issued in this regard within 60 days so that all the SHOs are aware of and adhere to the observations made in the case. Further, the Registrar General of the Court was also directed to circulate the order to all judicial officers handling trial of NDPS cases with directions of strict adherence.
The Court was hearing a quashing petition in relation to an NDPS case. The petitioners were arrested following a search at their house wherein a substance was recovered alleged to be an illegal drug. However, when the FSL report came, no contraband was found in the material.
Subsequently, preserved control samples were also sent for testing to eliminate any doubt, however these control samples were not approved by FSL. As per the final report along with the FSL report, no presence of any narcotic drug could be deducted in the sample packets.
After perusing the records, the Court highlighted that since the suspicion of possession of contraband was not confirmed by the FSL report, there did not remain any case against the petitioners. As a result, the petition was allowed, quashing the case against the petitioners.
As a matter of caution, the Court referred to the Supreme Court case of Thana Singh v CBN in which the issue of retesting in NDPS cases was dealt with, and it was held that the NDPS Act did not by itself permitted re-sampling or re-testing of samples. However, NDPS courts were consistently allowing such applications.
Opining that reverence must be given to the legislature which expressly omitted such a provision, it was held that it was important to define the re-testing rights, and ruled, “Any requests as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re testing/ resampling shall be entertained thereafter.”
In this background, the Court held that re-testing could be allowed only in exceptional circumstances like where the sample was damaged, deteriorated, or was accidentally wasted or consumed. Even in such cases, upon receiving forensic report's report, or relevant information, if the Trial Courts deem necessary to order re-testing, it should be done after recording specific reasons.
Accordingly, the Court directed DGP, Rajasthan to issue a written communication ensuring that all SHOs are aware of the Court's observations. Similarly, Registrar General of the Court was ordered to circular copy of the order to all Judicial Officers handling trial of NDPS cases.
Title: Sadaram & Ors. v State of Rajasthan & Anr.
Citation: 2025 LiveLaw (Raj) 143