Jammu & Kashmir High Court
Reserved On: 28.01.2026 vs Union Of India on 16 February, 2026
2026:JKLHC-JMU:356
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 54/2025 c/w
CRM(M) No. 969/2025
Reserved on: 28.01.2026
Pronounced on: 16.02.2026
Uploaded on: 16.02.2026
Whether the operative part or full
judgment is pronounced-Full Judgment
Mohd. Mansha & Ors. .....Applicants/petitioners
Through :- Mr. M.A. Bhat, Advocate.
Mr. Masood Chowdhary, Advocate.
Mr. Shafiq Chowdhary, Advocate.
v/s
Union of India .....Respondent
Through :- Mr. Sumant Sudan, Advocate vice
Mr. Vishal Sharma, DSGI
CORAM: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
01. Since both the petitions trace their origin to the same Crime No. 10/2024
of NCB, Jammu, they are being disposed of by virtue of this common judgment.
02. Petitioners have invoked inherent jurisdiction of this Court primarily for
the quashment of charge-sheet; “NCB vs. Mohd. Mansha & Ors.”, pending on
the files of learned Principal Sessions, Rajouri, [“the trial court”], and order
dated 16.05.2025 vide which they came to be charged for offences under
Sections 8/21/25/29/60 NDPS Act. They also seek their liberation on bail.
03. As the prosecution story would unfold, the respondent-NCB, on
16.04.2024, at 1630 hours, received source information that petitioners were on
their way to smuggle a huge quantity of Narcotic Drugs in village Solki in
Rajouri. Information was reduced into writing and brought to the notice of the
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Superintendent, NCB Jammu. On the completion of legal formalities, the team
same day left for Rajouri, at about 1730 hours. On 17.04.2024, the team reached
village Solki at about 1730 hours. They tried to associate independent witnesses,
but none acceded to their request. At about 1330 hour, the NCB team
intercepted a suspect bike/motorcycle bearing registration No. JK11 F-3661,
which was being driven by petitioner-Mohd. Rafiq and a vehicle bearing
registration No. JK11 B 6509, moving alongside. Petitioners no. 1 to 3 were
found sitting in vehicle No. JK11 B 6509. On search, a packet kept under the
seat of petitioner-Mohd. Mansha, who was sitting on the left window side,
opposite the driver seat, came to be recovered from the vehicle bearing
registration No. JK11 B 6509. It suspected to contain Narcotic Drugs, wrapped
in a transparent plastic polythene under cloth packing. The packet was opened in
the presence of petitioners, and when some quantity of material was checked by
way of NDD kit, it tested positive for heroin. The packet, with the packing
material, weighed 0.900 kgs, whereas net weight of the contraband, without
packing material, was found 0.870 kgs, which came to be seized and sealed on
the spot. According to the investigating agency, all accused persons, petitioners
herein, were in conscious possession of the contraband. Both the vehicles were
seized on spot. Voluntary statements of petitioners, according to investigating
agency were recorded and they were placed under arrest.
04. The investigating agency forwarded a sample of the contraband to CRCL
Delhi for chemical examination. The lab report came to be received on
20.05.2024, whereby though it showed the presence of Viagra, it did not test
positive for Heroin, Amphetamine, Methamphetamine, Ketamine,
Methaqualone, Cocaine and THC. However, the investigating agency, for
further confirmation, preferred an application in the trial court on 30.05.2024 for
Bail App No. 54/2025 c/w 2
CRM(M) No. 969/2025
re-testing of the second sample, which was allowed on the same day, 2026:JKLHC-JMU:356
and
sample was forwarded to CFSL Chandigarh for re-testing. However, on the
basis of report of CRCL Delhi, petitioners were admitted to interim bail by the
trial Court on 18.09.2024, subject however to the rider that concession of bail
would remain subject to the receipt of report from CFSL Chandigarh. The report
from CFSL, Chandigarh was received by investigating agency on 20.12.2024,
whereby Tramadol, Caffeine and Dextromethorphan came to be detected in the
sample. On the receipt of this report, prosecution filed application before the
trial court to recall the interim bail, and learned trial court, vide impugned order
dated 05.02.2025, cancelled the interim bail and petitioners were remanded to
judicial custody.
05. The investigation culminated in the presentation of impugned
complaint/charge-sheet against the petitioners in the trial court. According to the
investigating agency, facts of the case, evidence collected by it and attending
circumstances suggest direct involvement of the petitioners in the commission
of offences.
06. Petitioners are aggrieved of order dated 05.02.2025, vide which their
interim bail came to be recalled after second sample sent by NCB tested positive
for the presence of Tramadol, and they were remanded to judicial custody.
Petitioners have questioned the procedure adopted by the investigating agency
and approach of the trial court by contending that it is contrary to the statutory
provisions regarding investigation of NDPS cases. It is contention of the
petitioners that there is no provision or procedure in NDPS Act which enables
investigating agencies to send second sample of a contraband for chemical
examination after a lab report gives negative opinion.
Bail App No. 54/2025 c/w 3
CRM(M) No. 969/2025
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The plea has been opposed on the other side by respondent-NCB
primarily on the ground of gravity of the charge and application of Section 37
NDPS Act.
08. It is contention of the respondent that liberty of an individual is subject to
reasonable exceptions, and, since a commercial quantity of Narcotic Drug has
been recovered from the conscious possession of the petitioners, there is
reasonable ground to believe that they are guilty of the commission of offences
and they have been rightly charged by the trial court. It is also contended that
both under law and on facts, the impugned complaint, prima facie discloses the
commission of offences by the petitioners under NDPS Act; as such, petitions
are liable to be rejected.
09. Having heard learned counsels for the parties, I have examined the
record.
10. Petitioners have predominantly assailed the determination of learned trial
court in having the second sample tested.
11. Mr. M.A Bhat, learned counsel for the petitioners has relied upon Thana
Singh vs. Central Bureau of Narcotics; 2013 (2) SCC 590 and Jaswinder
Singh @ Binder vs. State of Punjab, [CRM-M- 10795-2020; dated
22.04.2024] to submit that once first sample ruled out the presence of heroin,
second sample ought not to have been sent for re-analysis in the absence of any
special or exceptional circumstances warranting such a course.
12. Having given thoughtful consideration to the submissions advanced by
learned counsels on rival sides, I am of the considered view that in the factual
scenario, instant case does not present a situation of extremely exceptional
circumstance to call for re-testing of the sample.
Bail App No. 54/2025 c/w 4
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The retesting provisions within the framework of NDPS Act came to be
examined in Thana Singh, whereby Hon’ble Supreme Court lamented that
though NDPS Act does not permit re-sampling or re-testing of samples, yet
there has been a trend to the contrary that NDPS Courts have been consistently
obliging to applications for re-testing and re-sampling, which often leads to
procrastination of trials. Supreme Court clarified that the legislature, in its
wisdom, has expressly omitted a similar provision in NDPS Act, which is
otherwise a standard one in other legislations viz. Section 25(4) of the Drugs
and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration
Act, 1954, and Rule 56 of the Central Excise Rules, 1944, which permitted a
time period of thirty, ten and twenty days respectively for filing application for
re-testing. It was underlined that re-testing may be an important right of an
accused, but the haphazard manner in which right is imported from other
legislations without its accompanying restrictions is not permissible. Therefore,
as an amalgamation of various factors, re-testing within the framework of NDPS
Act came to be defined by Hon’ble Supreme Court and it was held that a request
for re-testing or re-sampling shall not be entertained under NDPS Act as a
matter of course, and it may, however, be permitted in extremely exceptional
circumstances for cogent reasons to be recorded by the presiding judge and an
application in such rare cases must be made within a period of 15 days of the
receipt of the test report and not thereafter. Supreme Court, thus clearly ruled
that in the absence of any compelling circumstance, any form of re-testing/re-
sampling is strictly prohibited under NDPS Act.
14. Relevant excerpt of the judgment captured in Para 25, for the facility of
reference is extracted below:-
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“25. Therefore, keeping in mind the array of factors discussed above,
we direct that, after the completion of necessary tests by the
concerned laboratories, results of the same must be furnished to all
parties concerned with the matter. 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/re-sampling shall be entertained thereafter. However, in
the absence of any compelling circumstances, any form of re-
testing/re-sampling is strictly prohibited under the NDPS Act.”
15. It is clear from the aforesaid enunciation that a request for re-testing or re-
sampling under NDPS Act cannot be entertained as a matter of course on mere
asking of the prosecution and it may be permitted in extremely exceptional or
rare circumstances, for cogent reasons to be recorded by the presiding judge.
Though it may not be possible to lay down myriad kind of all the circumstances
in which a plea for re-testing or re-sampling can be allowed, however, there may
arise occasions which would warrant recourse to a second test; for instance,
where sample of a contraband sent for chemical examination is lost or
misplaced in transit or in the laboratory, or it was subjected to damage or
deterioration during transit or in the laboratory, or sample was accidentently
wasted or consumed in the laboratory. There circumstances are illustrative in
nature and it may not possible to lay down an exhaustive list of all the
circumstances, which may call for intereference of the trial court for re-
sampling or re-testing. In an appropriate case, upon a categoric report of the
investigating officer or the forensic laboratory, as the case may be, the
investigating agency may solicit indulgence of the concerned court for re-
sampling and/or re-testing and court may, in its discretion, entertain such
application and pass appropriate orders for reasons to be recorded in writing.
16. In the present case, the investigating agency sent a sample of the
contraband to CRCL Delhi for chemical analysis. As per the report of CRCL
Bail App No. 54/2025 c/w 6
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Delhi, the sample did not test positive for any Narcotic Drug or Psychotropic
Substance, though, it showed the presence of Viagra. On the receipt of this
report, petitioners were admitted to interim bail by the trial court vide order
dated 18.09.2024. For further identification/confirmation, the investigating
agency filed application before the trial court on 30.05.2024 for re-testing of the
contraband, and on the same day it came to be allowed. The second report dated
20.12.2024 from CFSL Chandigarh came to be received and as per this report
Tramadol, Caffeine and Dextromethorphan were detected in the sample. On the
receipt of this report from CFSL Chandigarh, respondent filed application in
the trial court to recall interim bail. Learned trial court, vide impugned order
dated 05.02.2025, recalled interim bail and petitioners were remanded to judicial
custody.
17. First of all, let us have a look at the application preferred by the
prosecution in the trial court for re-testing of the sample. The contents of the
application are extracted below:-
“5). That on 17.04.24, Narcotics Control Bureau, Jammu seized 870 grams of Heroin (Try (without
packing material) along with the vehicle No. JK 11B 6509 (207 Force India- 14 Ltd.) & other vehicle No.
JK 11F 3661 (motorcycle-pulsar) which were used for trafficking of contraband, at Near Shamshan Ghat
Village Solki, PS- Dharmsaal, Rajouri, J&K, from the possession of 1. Mohammad Mansha, 2.
Mohammad Leynis, 3. Mohammad Imtaiz 4. Mohammad Rafiq, who were arrested in this case.
6) A case against them vide NCB Crime No.10/2024 under section 8, 21, 25, 29 & 60 of the NDPS Act,
1985 was registered by NCB Jammu. The accused admitted their guilt for trafficking of the seized heroin
in the statement recorded u/s 67 NDPS Act 1985. After arrest, they were produced before Hon’ble court
of Principal Sessions Judge Rajouri on 18.04.2024.
7) That, on 18.04.2024 an application u/s 52A NDPS Act, was filed before Ld. CJM Rajouri for
certification of correctness of inventory, and samples of seized Narcotics drugs & psychotropic
substance and controlled substances and on 19.04.2024 two samples were drawn from seized
contraband in the presence of Sub-Judge/ Special mobile magistrate.
8) That, due to holiday on 20.04.2024 one of the samples was sent to CRCL, New Delhi for chemical
examination on 21.04.2024. and on 25.05.2025 Test report of sample was received from the CRCL,
New Delhi which state that “the sample does not test answer positive test for Heroin,
Amphetamine, Methamphetamine, Ketamine, Methaqualone, Cocaine & THC, It shows the
presence of Viagra. Hence NCB Jammu intends to forward other sample to CFCL, Chandigarh for
retesting.
It is prayed that the said petition may be allowed please.”
(Emphasis Supplied)
Bail App No. 54/2025 c/w 7
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The only ground urged for re-testing by the prosecution is that since
report of CRCL, Delhi ruled out the presence of Heroin, NCB intended to
forward other sample to CFCL, Chandigarh.
19. Now, what is intriguing is the reason assigned by the trial court while
directing re-testing of the sample. For the ease of reference, impugned order is
extracted below:-
“This application has been received by way of transfer from the Court of Ld.
CJM Rajouri for disposal under law & same was presented in this Court by Sub-Insp.
Ram Shankar Paswan of NCB Zonal Unit Jammu. wherein the above Officer has
applied before this Court for forwarding the sample to CFCL Chandigarh for retesting
of remaining sample in above said FIR.
I have perused the application which reveal that earlier sample were sent to
CRCL New Delhi and test report has been received which is made part of the file and
same has not tested positive for Heroin. The main intention is to get the remaining
sample retested through another laboratory. As such the present application is
allowed and NCB unit Jammu is permitted to sent the remaining sample to
CFCL. Chandigarh for retesting.
Application is accordingly disposed off and consigned to record room after
due completion under rule.”
(Emphasis supplied)
20. It is evident from the aforesaid that since report of CRCL, Delhi was to
the inconvenience of the prosecution, it filed application for re-testing, and
learned trial court allowed the application on mere asking of the prosecution,
which is not permissible in law. Neither prosecution assigned any justification,
much less sufficient, to have the sample retested, nor trial court assigned any
reason permitting NCB for re-testing of the sample. Once CRCL, Delhi, ruled
out the presence of heroin in the sample sent by the investigating agency and
determination of said laboratory was clear, categoric and specific, same could
not have been overlooked by the trial court in a haphazard manner and re-testing
of the sample ordered as a matter of routine.
Bail App No. 54/2025 c/w 8
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For the foregoing reasons, the allegations contained in the impugned
charge-sheet prima facie do not disclose the commission of any cognizable
offence by the petitioners. Hence, present petition is allowed and impugned
charge-sheet with all consequential orders is quashed.
22. With the aforesaid observations, both the petitions are disposed of.
(Rajesh Sekhri)
Judge
JAMMU
16.02.2026.
Abinash
Whether the judgment is speaking? Yes
Whether the judgment is reportable? Yes
Bail App No. 54/2025 c/w 9
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