Karnataka High Court
Mr Siddhanth Kapoor vs The State – Inspector Of Police on 9 July, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 6998 of 2022
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HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6998 OF 2022
C/W
CRIMINAL PETITION NO. 8931 OF 2022
IN CRL.P No. 6998/2022
BETWEEN:
MR. SIDDHANTH KAPOOR,
S/O SHAKTHI KAPOOR,
AGED ABOUT 38 YEARS,
NO.701, PALMA BEACH,
GANDHIGRAM ROAD, JUHU,
MUMBAI CITY, MAHARASTRA-400049.
...PETITIONER
(BY SRI. H. MALATESH, ADVOCATE)
AND:
Digitally signed THE STATE - INSPECTOR OF POLICE,
by HALASURU POLICE STATION,
PADMAVATHI B
K REP. BY THE STATE PUBLIC PROSECUTOR,
Location: High HIGH COURT OF KARNATAKA,
Court of
Karnataka BENGALURU-01.
[THE POLICE INSPECTOR OF THE
HALASURU POLICE STATION,
IS THE COMPLAINANT]
...RESPONDENT
(BY SRI. B.N. JAGADEESHA, SPP-I A/W
SMT. DEEPTHI ALVA, HCGP FOR RESPONDENT)
THIS CRL.P IS FILED U/S.482 CR.P.C., 1973 TO QUASH
THE FIR IN CRIME NO.111/2022 REGISTERED BY THE
HALASURU POLICE FOR THE OFFENCE P/U/S 20(a), 22(b) AND
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27(b) OF NDPS ACT, PENDING ON THE FILE OF THE M.M.T.C.-
I, MAYO HALL, BANGALORE CITY, IN SO FAR AS THE
PETITIONER IS CONCERNED.
IN CRL.P NO. 8931/2022
BETWEEN:
1. MR. AKIL SONY,
S/O MR.SONY,
AGED ABOUT 28 YEARS,
R/AT NO.G1B ARAVIND RESIDENCY,
OPP. UNIQUE FIELD CARWASH,
INDIRANAGAR, BANGALORE-560038.
2. MR. HARJOTH SINGH,
S/O MR. GURPREET,
AGED ABOUT 28 YEARS,
NO.223, BABA MOHANDAS NAGAR,
WORKA MILKA PARK,
OPP. JALANADHAR 1 GREIN MARKET,
JULLUNDUR, PUNJAB-144008.
...PETITIONERS
(BY SRI. SURAJ SAMPATH, ADVOCATE)
AND:
STATE OF KARNATAKA,
REPRESENTED BY THE
HALASUR POLICE STATION,
REPRESENTED BY THE SPP,
HIGH COURT BUILDING,
AMBEDKAR VEEDI, BANGALORE-560 001.
...RESPONDENT
(BY SRI. B.N. JAGADEESHA, SPP-I A/W
SMT. DEEPTHI ALVA, HCGP FOR R-1)
THIS CRL.P IS FILED U/S.482 CR.P.C., 1973 TO
QUASH THE COMPLAINT DATED 13.06.2022 VIDE
ANNEXURE-A AND THE FIR DATED 13.06.2022 BEARING
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CR.NO.111/2022 VIDE ANNEXURE-B REGISTERED BY THE
HALASUR POLICE STATION FOR THE OFFENCES U/S 20(a),
22(b) AND 27(b) OF N.D.P.S. ACT, 1985 PENDING ON THE
FILE OF HON'BLE METROPOLITAN MAGISTRATE (TRAFFIC
COURT-1), MAYOHALL, BANGALORE, IN SO FAR AS THE
PETITIONERS ARE CONCERNED AND ETC.
THESE PETITIONS, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
In Crl.P.No.6998/2022, the petitioner is before this Court
seeking the following prayers:
“(a) Quash the FIR in Crime No. 111/2022 registered by
the Halasur Police for the offence under section 20(a),
22(b) and 27(b) of the NDPS Act, pending on the file of
Metropolitan Magistrate (Traffic Court – 1), Mayohall,
Bengaluru City, in so for as the Petitioner is concerned.
(b) Grant such other and further reliefs as this Hon’ble
may deem fit to grant under the circumstances of the
case, in the interest of justice and equity.”
2. In Crl.P.No.8931/2022, the petitioners are before
this Court seeking the following prayers:
“i) Quash the Complaint dated 13.06.2022 vide Annexure
A and the FIR dated 13.06.2022 bearing Crime
No.0111/2022 vide Annexure-B registered by the Halasur
Police Station for the offences under Sections 20(a), 22(b)
and 27(b) of the Narcotic Drugs and Pyschotropic
Substances Act, 1985 pending on the file of the Hon’ble
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Metropolitan Magistrate (Traffic Court-1), Mayohall,
Bangalore, in so far as the Petitioners are concerned.
ii) Direct the Respondent police to release to the
Petitioners, both their mobile phones seized vide the
Seizure Report dated 13.06.2022 bearing P.F. No. 46/2022
in Crime No. 0111/2022 vide Annexure-D along with their
Rudraksh bracelet, Kadda and other personal belongings,
which are still in the police custody.
iii) Grant such other reliefs as this Hon’ble Court deems fit
considering the facts and circumstances of the case, in
order to meet the ends of justice.”
3. In Crl.P.No.6998/2022, heard Sri.H.Malatesh,
learned counsel appearing for the petitioner,
Sri.B.N.Jagadeesha, SPP-I along with Smt.Deepthi Alva,
learned HCGP appearing for the respondent. In
Crl.P.No.8931/2022, heard Sri.Suraj Sampath, learned counsel
appearing for the petitioners, Sri.B.N.Jagadeesha, SPP-I along
with Smt.Deepthi Alva, learned HCGP appearing for the
respondent and have perused the material on record.
4. Learned counsel appearing for the petitioners would
submit that the issue in the lis stands covered by the judgment
rendered by this Court in W.P.No.31069/2024 disposed on
29.04.2025, wherein it has held as follows:
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“10. Whether tests done in a private laboratory should be
given credence is what is required to noticed. The Government of
India has notified standing orders in Standing Order No.1 of 1988
which deals with chemical analysis of seized drugs and would
indicate certain procedure. Clause 1.3 of the said Standing Order
reads as follows:
“1.3 An illicit narcotic drugs or psychotropic substances
recovered from a person, place, conveyance, etc. are material
evidence as they are liable to confiscation. Further, they
constitute primary evidence for any act, omission or commission
on the part of a person rendering him liable for punishment under
Chapter IV of the NDPS Act, 1985. Most of the narcotic drugs and
psychotropic substances cannot be conclusively proved to be such
drugs or substances merely by visual examination in the trial
court and they require to be proved by chemical analysis to be
conducted by chemists authorized under Section 293 of
Cr.P.C.1973. The provisions of sub-Section 4 of Section 293 of
Cr.P.C. are reproduced hereunder for ready reference:-
Section 294(4) of Cr.P.C., 1973. This Section applies to
the following Government scientific experts, namely:-
(a) Any Chemical Examiner or Assistant Chemical
Examiner to Government;
(b) The Chief Inspector of Explosives;
(c) The Director of Finger-print Bureau;
(d) The Director Hoffikin Institute of Bombay;
(e) The Director (Deputy Director or Assistant
Director) of a Central Forensic Science
Laboratory or a State Forensic Science
Laboratory.
(f) The Serologist to the Government.”
And Clause 1.11 reads as follows:
“1.11 Laboratories to which samples may be sent.
The Seizing Officers of the Central Government
Department, viz., Customs, Central Excise, Central Bureau
of Narcotic, Narcotics Control Bureau, D.R.I., etc. should
dispatch samples of the seized drugs to one of the
laboratories of the Central Revenues Control Laboratory
nearest to their offices depending upon the availability of
test facilities. The addresses of the Dy. Chief Chemists of
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the Central Revenues Control Laboratories are given
below:
1. General Manager, Govt. Opium and Alkaloid Works,
GHAZIPUR (U.P.);
2. General Manager, Govt. Open and Alkaloid Works,
Neemuch (M.P);
3. Chief Chemist, Central Revenue Control Laboratory,
Pusan Road (IARI), New Delhl.
4. Dy.Chief Chemist, Office of the Collector of Customs
House, Chennai 600 001.
5. Dy.Chief Chemist, Chemical Laboratory, Customs
House, Calcutta-1;
6. Dy.Chief Chemist, New Customs House Ballard Estate,
Mumbai-400 038.
7. Dy.Chief Chemist, Central Excise Laboratory, Estrellia
Batteries Compound, Dharavi Road, Mumbai-400 019.
8. Chemical Examiner, Office of the Commissioner of
Customs, Customs House, Cochin-9;
9. Chemical Examiner, Central Excise Laboratory,
Yashkamal, Building , 8th Floor, Baroda-5 (Gujarat),
10. Chemical Examiner, Central Excise Laboratory, Central
Excise Laboratory, CORIL Refinery, Vishakhapatnam
(AP);
11. Chemical Examiner, Customs House, Kandla, Gujarat
12. Chemical Examiner, Customs House Laboratory, Sada,
MARMUGOA GOA-403 803
13. Chemical Examiner, Customs House Laboratory, Assam
Oil Refinery, Dibboi (Assam);
14. Chemical Examiner, Central Excise Laboratory, Assam
Oil Refinery, Distt. Begusarai (Bihar);
15. Chemical Examiner, HPCL, Refinery corridor Road,
Trombay, Mumbai-400 074.
The other Central Agencies, like BSF, CBI and other
Central Police organizations may send such samples to
the Director, Central Forensic Laboratory, New Delhi.
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All State Enforcement Agencies may send samples of
seized drugs and psychotropic substances to the
Director/Deputy Director/Assistant Director of their
respective State Forensic Science Laboratory.
The addresses of the State Forensic Science Laboratories are
given below:
1. Director, Forensic Science Laboratories, Govt. of Bihar,
Patna-800 023.
2. Director, Police Forensic Science Laboratory,
Rajasthan, Nehru Nagar, Jaipur-6;
3. Director, Forensic Science Laboratory, mini Punjab
Secretarial Plot No.2, Sector 9-A Chandigarh.
4. Director, State Forensic Science Laboratory, Rasulgarh,
Bhubaneshwar-10 (Orissa);
5. Director, Forensic Science Laboratory, Haryana
Madhubn (Karnl);
6. Director, Forensic Science Laboratory, Andhra Pradesh
Red Hills, Hyderabad;
7. Director, Forensic Science Laboratory, Trivandrum-10;
8. Director, State Forensic Science Laboratory, Govt. of
West Bengal, Balgachi Road.
9. Director, Forensic Science Laboratory, Gujarat State,
New Mental Corner, Ahmedabad – 380 016;
10. Director, Forensic Science Laboratory, Maharashtra
State, Vidhyanagari, Kalina, Santacruz (East), Mumbai-
400 098;
11. Director, Forensic Science Laboratory, Civil Lines,
Sagar (M.P) 470 001;
12. Director, Forensic Science Laboratory, Mahanagar,
Lucknow (U.P.);
13. Director, Forensic Science Laboratory, Sector-18
Chandigarh
14. Director, Forensic Science Laboratory, Bureau of Police
Research and Development (MHA), Govt. of India, O.V.
Campus, Ramnathpur, Hyderabad-500 013;
15. Director, Forensic Science Laboratory, C.B.I Block-4,
C.G.O Complex, Lodhi Road, New Delhi.
16. Director, Forensic Science Laboratory, Junagarh
(Gujarat);
17. Chemical Examiner to the U.P. Govt., Agra (U.P.)
18. Govt. Examiner of questioned documents, Railway
Board Building, Shimla (H.P)
19. Director, Forensic Science Laboratory, Opposite C.D.
Hospital, Srinagar (J.K.). ”
(Emphasis supplied)
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Clause 1.3 mandates that the Director of a Central Forensic
Science Laboratory should be in-charge of these tests and clause
1.11 mandates laboratories to which the samples may be sent.
There are about 15 laboratories. These are concerning chemical
analysis of drugs. The Ministry of Finance in the Department of
Revenue, Government of India has notified Narcotic Drugs and
Psychotropic Substances (Seizure, Storage, Sampling and
Disposal) Rules, 2022 (for short ‘the Rules’). Rule 12 deals with
storage of samples. It reads as follows:
“12. Storage of samples.–(1) Each sample shall be
kept in heat-sealed plastic bags or heat-resistant glass
bottle or apparatus, which shall be kept in a paper
envelope, sealed properly and marked as original or
duplicate, as the case may be.
(2) The paper envelope shall also bear the
respective serial number of the package or container from
which the sample had been drawn.
(3) The envelope containing the duplicate sample
shall also have reference of the test memo and shall be
kept in another envelope, sealed and marked ‘Secret-drug
sample/Test memo’, to be sent to the designated
laboratory for chemical analysis.”
(Emphasis supplied)
Rule 12 mandates that the duplicate sample should be seized and
marked as ‘secret-drug sample’ and has to be sent to a designated
laboratory for chemical analysis.
11. The learned counsel for the petitioners has contended that
if urine samples are to be tested for the presence of drugs, there
must be a confirmatory test of those tested urine sample by either of
the two methods – Gas Chromatography or Mass Spectrometry. In
the case at hand what is being sent is testing of urine samples. The
test report is quoted hereinabove. It is admittedly not tested by
either of the methods as noted hereinabove. A coordinate Bench of
this Court in SRI PRANAY NATARAJ V. THE STATE OF
KARNATAKA1, considers this aspect and holds that urine samples
1
W.P.No. 7178 of 2024 disposed of on 29-05-2024
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must be confirmed by the afore-quoted two tests. The coordinate
Bench, in the said decision, holds as follows:
“…. …. ….
2. According to the prosecution’s case, based on credible
information, a raid was conducted with a search warrant from the
Deputy Commissioner of Police, Crime Branch, Mangaluru. During
the raid, a plastic cover containing contraband ganja was
discovered under a table. Upon questioning the apartment’s
inhabitants, the petitioner revealed his identity and allegedly
confessed to procuring ganja from Vishaka Pattana tribes. He
admitted to packaging and selling quantities of 50 and 100 grams
to college students and the public for financial gain.
3. The prosecution further relies on the confession
statement of accused No.1, who purportedly confessed to
supplying ganja to other accused persons for consumption.
Subsequently, these co-accused allegedly stated that the
petitioner, accused No.16, also consumed ganja with them.
4. The Sub-Inspector of Police, CCB, Mangaluru, searched
the petitioner-accused No.16’s residence apartment, arrested
him, and then took him to A J Institute of Medical Sciences
Hospital, Mangaluru, for examination.
5. Furthermore, the prosecution contends that upon
examination, it was found that the petitioner-accused No.16 had
consumed ganja, thereby making him liable for offences under
Section 27(B)(2) of the NDPS Act.
6. Mr. P.P. Hegde, learned senior counsel for the
petitioner-accused No.16, argues that the urine sample taken
from him was obtained in violation of Section 16 of the NDPS Act,
1984, as none of the prescribed procedures were followed. He
further contends that the Inspector of Police failed to record in
writing the information received from the co-accused, which is
mandatory under Section 42(1) of the NDPS Act. Therefore, any
breach of mandatory provisions under Section 42(1) of the NDPS
Act would vitiate the trial.
7. In support of his argument, he cites the decision of the
Hon’ble Supreme Court in State of Punjab vs. Balbir Singh –
(1994) 3 SCC 299, Roy V.D. vs. State of Kerala – (2000) 8 SCC
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590, and Najmunisha vs. State of Gujarat – 2024 SCC Online SC
520.
8. On the contrary, the learned High Court Government
Pleader argues that there was substantial compliance with
Section 42(1) of the NDPS Act, and therefore, the trial remains
valid. She asserts that the confession statement of accused
No.16, combined with medical findings, clearly establishes his
involvement in the offence under Section 27(b) of the NDPS Act.
She further argues that the issues raised by the senior counsel
can only be addressed during the trial and should not be
considered in this petition, urging for its dismissal.
9. The submissions of both parties have been duly
considered.
10. Initially, the FIR was registered against accused
No.1 for offences under Sections 8(c) and 20(b)(ii)(B) of
the NDPS Act. Following his apprehension, it was alleged
that other accused persons had purchased ganja from him
and subsequently consumed it with accused No.16. Based
on information received from these co-accused, the Sub-
Inspector of Police, CCB, Mangalore City, entered the
premises where accused No.16 resided, conducted a
search, and arrested him. He was then sent for medical
examination by a police constable.
11. The urine sample drawn from accused No.16
during the examination at A J Institute of Medical Sciences
Hospital, Mangaluru, reportedly tested positive for ganja.
However, it is noted that this is a screening test, and all
positive results should be confirmed by Gas
Chromatography or Mass Spectrometry to establish
conclusive proof, a matter to be determined during the
full-fledged trial. Additionally, compliance with Section
42(1) of the NDPS Act is under scrutiny.
12. It is observed that the Sub-Inspector of Police, CCB,
Mangalore City, failed to record the information received from the
co-accused in writing, as mandated by Section 42(1) of the NDPS
Act. The Hon’ble Supreme Court, in State of Punjab vs. Balbir
Singh – (1994) 3 SCC 299, has held that any arrest or search
conducted under a warrant issued by an unauthorized Magistrate
or officer would be illegal, thus affecting the prosecution’s case
and vitiating the trial.
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13. Referring to Roy V.D. vs. State of Kerala – (2000)
8 SCC 590, the Court emphasized that Section 482 of the
CrPC should be invoked to prevent abuse of the legal
process or to ensure justice. Initiation of criminal
proceedings based on illicit material gathered through
illegal searches or arrests not only compromises the
validity of any conviction but also taints the entire trial
process.
(Emphasis supplied)
The issue before the coordinate Bench was consumption of
Ganja and the offence is under Section 27(b) of the Act which
punishes such consumption. The coordinate Bench holds that
urine sample drawn during the examination was not sent for
screening test or confirmation test for the aforesaid methods of
establishment of conclusive proof against the accused therein.
12. The Apex Court in the case of THANA SINGH v.
CENTRAL BUREAU OF NARCOTICS2, has laid down certain
guidelines for conduct of test and working of Forensic Science
Laboratory particularly in NDPS cases. The Apex Court, in the
said judgment, holds as follows:
“D. Narcotics Laboratories
16. Narcotics laboratories at the national level identify drugs
for abuse and their accompanying substances in suspected samples,
determine the purity and the possible origin of illicit drugs, carry out
drug-related research, particularly on new sources of drugs liable to
abuse, and, when required by the police or courts of law, provide
supportive expertise in drug trafficking cases. Their role in the
effective implementation of the mandate of the NDPS Act is
indispensible which is why every State or region must have
proximate access to these laboratories so that samples collected for
the purposes of the Act may be sent on a timely basis to them for
scrutiny. These samples often form primary and clinching evidence
for both the prosecution and the defence, making their evaluation by
narcotics laboratories a crucial exercise.
17. The numbers of these laboratories speak for themselves
and are reproduced here. The numbers for Central Forensic Science
Laboratories (CFSL) are as follows:
2
(2013) 2 SCC 590
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Sl. CFSL Location Status
No.
1. Chandigarh In
operation
2. Hyderabad In
operation
3. Kolkata In
operation
4. Delhi (under Central In
operation
Bureau of Investigation)
5. Bhopal Being
established
6. Pune Being
established
7. Guwahati Being
established
18. Similarly, numbers for the State and Regional Forensic
Science Laboratories (FSL) are as follows:
Sl. No. Name of State Existing State Facilities
Main State FSL Regional FSL
1. Andhra Pradesh 1 9
2. Arunachal Pradesh 1 0
3. Assam 1 0
4. Bihar 1 1
5. Chhattisgarh 1 2
6. Goa Being established 0
7. Gujarat 1 5
8. Haryana 1 2
9. Himachal Pradesh 1 0
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10. Jammu & Kashmir 1 1
11. Jharkhand 1 0
12. Karnataka 1 4
13. Kerala 1 2
14. Madhya Pradesh 1 3
15. Maharashtra 1 4
16. Manipur 1 0
17. Meghalaya 1 0
18. Mizoram 1 0
19. Nagaland 1 0
20. Orissa 1 2
21. Punjab 1 0
22. Rajasthan 1 3
23. Sikkim 0 1
24. Tamil Nadu 1 9
25. Tripura 1 0
26. Uttar Pradesh 1 2
27. Uttarakhand 1 0
28. West Bengal 1 2
Union Territories
1. Andaman and Nicobar Islands 1 0
2. Chandigarh 0 0
3. Dadra & Nagar Haveli 0 0
4. Daman & Diu 0 0
5. Lakshadweep 0 0
6. NCT of Delhi 1 0
7. Puducherry 0 0
Total 28 52
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19. A qualitative and quantitative overhaul of these
laboratories is necessary for ameliorating the present state of
affairs, for which, we are issuing the following directions:
19.1. The Centre must ensure equal access to CFSLs from
different parts of the country. The current four CFSLs only cater
to the needs of northern and some areas of western and eastern
parts of the country. Therefore, besides the three in the pipeline,
more CFSLs must be established, especially to cater to the needs
of southern and eastern parts of the country.
19.2. Analogous directions are issued to the States.
Several States do not possess any existing infrastructure to
facilitate analysis of samples and are hence, compelled to send
them to laboratories in other parts of the country for scrutiny.
Therefore, each State is required to establish State-level and
regional-level forensic science laboratories. However, the decision
as to the numbers of such laboratories would depend on the
backlog of cases in the State.
20. The abovementioned authorities must ensure
adequate employment of technical staff and provision of facilities
and resources for the purposes of proper, smooth and efficient
running of the facilities of forensic science laboratories under
them and the laboratories should furnish their reports
expeditiously to the agencies concerned.
21. The Directorate of Forensic Science Services, Ministry
of Home Affairs, must take special steps to ensure
standardisation of equipment across the various forensic
laboratories to prevent vacillating results and disallow a litigant
an opportunity to challenge test results on that basis.”
(Emphasis supplied)
No Guidelines/Circular/Government orders issued as on date under
the Act with regard to urine samples being tested have been
brought to my knowledge. The Apex Court and several other High
Courts in a plethora of judgments have found the testing done by
a private laboratory to be faulty. I deem it appropriate to notice
them.
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13. The Apex Court, in the case of MARIAM FASIHUDDIN v.
STATE3, has held as follows:
“…. …. ….
38. It is a matter of record that in the course of ‘further
investigation’, no new material was unearthed by the
investigating agency. Instead, the supplementary chargesheet
relies upon the Truth Lab report dated 15.07.2013, obtained by
Respondent No. 2, which was already available when the original
chargesheet was filed. The term ‘further investigation’ stipulated
in Section 173(8) CrPC obligates the officer-in-charge of the
concerned police station to ‘obtain further evidence, oral or
documentary’, and only then forward a supplementary report
regarding such evidence, in the prescribed form.
… … …
42. We also fail to understand the reliability of the
material based on which the investigating agency or the Trial
Magistrate could form a prima facie opinion concerning the
allegation of forgery of signatures of Respondent No. 2. As
observed earlier, the State FSL report does not
substantiate these allegations. In our opinion, a paid
report obtained from a private laboratory seems to be a
frail, unreliable, unsafe, untrustworthy and imprudent
form of evidence, unless supported by some other
corroborative proof. It is painful to mention that
Respondent No. 2 has not produced any other substantive
proof, nor has the investigating agency obtained any such
material in compliance with the Trial Magistrate’s order for
further investigation. The basis on which the Trial
Magistrate formed a prima facie opinion, in the absence of
such supporting evidence is, therefore, beyond our
comprehension.”
(Emphasis supplied)
14. The High Court of Madras in the case of STATE v.
P.PONNUSAMY4, has held as follows:
".... .... .... 3 2024 SCC OnLine SC 58 4 2024 SCC OnLine Mad 2314 - 16 - NC: 2026:KHC:34853 CRL.P No. 6998 of 2022 C/W CRL.P No. 8931 of 2022 HC-KAR
26. (i) That apart, there are other infirmities as well,
which may not be relevant in the light of the observations made
above. For the sake of narration, we would like to record them.
(a) PW54, has not compared the gait pattern of the entire
body and has restricted only to the foot pattern.
(b) There is a doubt with regard to the storage of the
backup copy on a pen drive which is incomplete and
truncated.
(c) Science with regard to gait analysis is not absolute and
there cannot be an assumption that the gait pattern is
unique for a person.
(d) Above all, we find that in the absence of proof that the
DVR was really scrapped, as we have discussed above,
the action of the investigating officer in sending the hard
disc – M.O.9 to a private lab even with the approval of
the Magistrate, also raises suspicion. This suspicion is
not without basis. The Hon’ble Supreme Court had
on more than one occasion, commented adversely
upon the investigating officer in seeking the
assistance of private labs for investigation
purposes and more particularly, in the case of
‘Truth Labs’. It would be useful to refer to the
observations of the Hon’ble Supreme Court at
paragraph Nos. 12 and 42 of the judgment
in Mariam Fasihuddin v. State by Adugodi Police
Station, 2024 SCC OnLine SC 58, which are
extracted hereunder.
“12. In addition to the State FSL Report, the
supplementary charge sheet also mentioned a report dated
15.07.2013 purportedly obtained by Respondent No. 2 from
a private agency, known as, ‘Truth Lab’. This report opined
that the signatures on the passport application did not signify
a close resemblance with the specimens of Respondent No.
2’s signatures.
42. We also fail to understand the reliability of the
material based on which the investigating agency or the Trial
Magistrate could form a prima facie opinion concerning the
allegation of forgery of signatures of Respondent No. 2. As
observed earlier, the State FSL report does not substantiate
these allegations. In our opinion, a paid report obtained from
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a private laboratory seems to be a frail, unreliable, unsafe,
untrustworthy and imprudent form of evidence, unless
supported by some other corroborative proof. It is painful to
mention that Respondent No. 2 has not produced any other
substantive proof, nor has the investigating agency obtained
any such material in compliance with the Trial Magistrate’s
order for further investigation. The basis on which the Trial
Magistrate formed a prima facie opinion, in the absence of
such supporting evidence is, therefore, beyond our
comprehension.”
Similar observations were made by the Hon’ble
Supreme Court in Canara Bank v. United India Insurance
Co. Ltd., (2020) 3 SCC 455 and by this Court in Crl.R.C.
(MD) No. 35 of 2016 [K. Venkateshwaran v. S.
Baskaran decided on 17.02.2021]. Both cases relate to
obtaining an opinion from this particular lab and the
Hon’ble Supreme Court and this Court has deprecated the
said practice.
(ii) That apart, it is seen that no camera was shown in the
Rough Sketch (Ex.P163) and Observation Mahazar (Ex.P3) in
ShreshtaSubhashree apartments. But a camera was shown in the
other apartment nearby viz., CEEBROS Apartments. Even
assuming that the investigating officer had inadvertently missed
out the mentioning of cameras in ShreshtaSubhashree
apartments, the prosecution has not proved as to why the
footage from the other Apartment was not collected. The
explanation that the footage was not available is mere ipsidixit of
the investigating officer and no person/witness from the said
CEEBROS Apartment was examined by the prosecution.
(iii) Considering the fact that the cloned copies could not
be produced, because of alleged mechanical failure; the fact that
the investigating officer had copied the footage on a pen drive
and had not produced it before the Court; the version of PW54
that a truncated backup of the footage was taken being
doubtful; besides the act of the investigating officer in
referring it to a private lab and the ‘not so good’ reputation
of the said private lab; that the prosecution did not
establish that the DVR which was called for by the
Government Lab was scrapped and for the other reasons
mentioned above, we are of the view that no reliance can
be placed either on Ex.P155-pen drive or Ex.P157-report of
PW54.”
(Emphasis supplied)
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15. The High Court of Gauhati in the case of BARASHA
BORAH BORDOLOI v. STATE OF ASSAM5, has held as follows:
“…. …. ….
10. Reference is made to different SMSes as indicated in
the paper book to say that messages have established an
emotional blackmailing of petitioner. It is contended that the
petitioner has duly projected her case by inserting new facts
relating to the commission of offence under sections 66/67A of
the IT Act, and the admissibility of the same to be tested under
section 65B of the Evidence Act and the petitioner has produced
relevant certificate issued by a private laboratory, namely, Truth
Lab as required under section 65B of the Evidence Act to prove
that the SMSes were sent by the respondent, and none else.
… … …
18. As regards the contention regarding the offence under
the provisions of the IT Act it is submitted that no such offence is
made under the IT Act against the respondent as SMSes sent by
the parties to each other are obviously, consensual and the
accused cannot be singled out for the offence, if any, under the
provisions of the law. It is categorically challenged that no any
ingredient of offence under section 67A of the IT Act is discernible
in the present case and there is no certificate as mandated by
section 65B of the Evidence Act to prove the genuineness of the
purported SMSes. The material brought by the informant
through a private investigating agency cannot be
admissible in evidence which was verified by a privately
run laboratory. The hon’ble Supreme Court
in Navinchandra N. Majithia v. State of Meghalaya, (2000)
8 SCC 323, it is held that “the Code does not recognize the
private agency. If any person is interested in hiring such
private agency, he may do so at his own risks and costs
but such investigation would not be regarded as
investigation made under the law. Any evidence collected
by such private investigation and any conclusion reached
by such investigation cannot be permitted by the public
prosecutor in any trial. Of course it may be possible for the
defence to present such case”.”
(Emphasis supplied)
If what is held by the Apex Court and other High Courts is
considered, what would become unmistakably clear is, that reports
5
2018 SCC OnLine Gau 534
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from the private laboratories, of any kind are always doubtful,
therefore, lurking suspicion percolates into every report.
16. It becomes apposite to refer to a Division Bench
judgment of the High Court of Allahabad in the case of PARSADI
LAL TULSIRAM COLD STORAGE AGRA v. STATE OF U.P.6,
wherein it is held as follows:
“…. …. ….
8. It is not known to this Court as to whether Duke
Ornex, Hyderabad is a government laboratory or private,
however, if a report has been obtained under Section 292
or under Section 293 CrPC, such report, being public
document, would be admissible in evidence and would be
accepted automatically and there would not be any need to
examine the scientist who examined the material and
prepared the report on behalf of the complainant except on
the request of the defence but if any examination report
has been obtained from any private agency, such report
would be treated to be a private document.
9. In case of report of a private laboratory, it would
be a private document in view of Section 75 of the Indian
Evidence Act, 1872 and in that case, there would be need
of examination of the Scientist who examined the subject-
matter and submitted the report.
10. In view of the above discussion, this Court is of
the view that since the report was obtained from a private
agency i.e. Duke Ornex, Hyderabad, hence it was the duty
of the prosecution to prove such report in due course.
11. From the perusal of the impugned order, it does not
disclose that whether the report of Duke Ornex, Hyderabad is on
record of the lower court or not. Since the alleged report is the
basis of the concerned Criminal Complaint, hence it was duty of
the learned trial court to order the prosecution to produce the
same as in absence of that, there was no prima facie evidence to
prosecute the applicants. Before passing the impugned order, it
was duty of the lower court to ascertain as to whether the report
of Duke Ornex, Hyderabad is on record or not, but he simply
based his conclusion on the evidence of PW-4, Ramesh Chandra
6
2023 SCC Online All 4669
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without examining deeply and properly and concluded that the
burden of proof is upon the complainant and rejected the
application moved by the applicants.”
(Emphasis supplied)
The Division Bench holds that the report of a private laboratory
would become a private document, under Section 75 of the Indian
Evidence Act.
17. What happens to a charge sheet filed on the basis of a
report of private laboratory is taken into consideration by several
coordinate Benches. A coordinate Bench of this Court in the case
of GANGAPA MOGAVEERA v. STATE7 has held as follows:
“…. …. ….
9. Though there is no allegation in the FIR lodged by the
respondent No.2, the Police initially registered the FIR against the
petitioner for the offences punishable under Sections 409, 420 of
Indian Penal Code and after investigation, the investigating officer
has filed the charge sheet against the petitioner for the offence
punishable under Section 465 of IPC based on a report submitted
by a private laboratory stating that the petitioner has created the
document by forging the signature of the respondent No.2.
10. The co-ordinate bench of this Court in
Crl.P.No.100822/2016 disposed on 23.11.2016 has held
that the investigating officer has committed a serious error
in referring those documents for verification to a private
laboratory, instead of sending the same to forensic
laboratory of the Government. Therefore, it is seen that
the court below though initially committed an error in
accepting aforesaid ‘B’ report has subsequently set right
this mistake by rejecting the report.
11. In view of the same, the charge sheet filed by
the investigating officer on the basis of the report
submitted by the private laboratory is not sustainable in
law.”
(Emphasis supplied)
7
Crl.P.No.3590 of 2019 disposed on 25-01-2022
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Another coordinate Bench in the case of IQBAL SYED SAB
DEFEDHAR v. FOOD SAFETY INSPECTOR8 has held as follows:
“…. …. ….
“34. On perusal of the said letter, furnished by Sri S.K.
Biradar, it is seen that basic requirement for effective
implementation of the Act is the establishment of NABL in the
State of Karnataka. Many times, the delay occurs because of the
want of proper laboratory facility. As an ad hoc arrangement, a
memorandum of Understanding (MOU) is entered into with a
private laboratory by the Department, where under, the samples
would be sent to the private laboratory and reports would be
obtained.
35. Acceptability/admissibility of a report given by a
private laboratory for the purpose of adjudication of an
offence under the Act is doubtful. It is the bounden duty of
the Government to establish necessary laboratory for
testing the samples under the Act. Such a responsibility
cannot be outsourced by Government. Further, the opinion
given by the laboratory is the basis for launching the
prosecution under the said Act. When the very report itself
is questionable, given by a private laboratory, it would
open flood gates by practically challenging every report
before this court and prosecutions being quashed by this
court perhaps only on that ground eventually defeating the
very purpose and object of enactment.”
(Emphasis supplied)
Long before the afore-quoted two judgments of coordinate
benches, another coordinate bench in the case of STATE OF
KARNATAKA v. BIMAL KUMAR GUPTA9, has held as follows:
“…. …. ….
12. The next important aspect is that the learned
Counsel for the respondents submitted that because the
complaint has been filed in a delayed manner, he has last
the opportunity under Section 25(4) to approach the Court
requesting the Court to send the second sample which was
given to the Court for the purpose of sending the same to
8
W.P.No.59039 of 2015 decided on 23-02-2022
9
Crl.A.No.341 of 2011 decided on 11-10-2019
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the Central Government Analyst for test. This, in my
opinion, may not be helpful to the respondents because he
himself has sent the said sample given to him to another
Private Laboratories which is called as Industrial Testing
Laboratories as per Exs.D2 and D3 wherein the test report
given by the said Laboratory was that the drugs were of
‘standard quality’. However, the learned Counsel for the
respondents has not brought to the notice of this Court
under which provision of law the respondents are entitled
to send the sample to a private Laboratory when the law
contemplates that either it should be sent to the State
Analyst or to the Central Drug Analyst as per Section 25 of
the Act. It is open to the respondents under Section 25(4)
of the Act to request the Court to send the second sample
furnished to the Court for analysis to the Central Drug
analyst and there is no provision under the Act or Rules
that the respondents are entitled to send the said sample
to a private analyst. Therefore, the said report is of no
avail so far as the respondents are concerned. Therefore, I
am of the opinion that the Appellate Court has committed
serious error in appreciating these aspects.”
(Emphasis supplied)
Samples were being sent to ‘Truth Labs’, which is said to be
reigning in authentic sampling. Even in such cases, the coordinate
bench holds that without exhausting the remedy before Forensic
Science Laboratory, Karnataka, the report of the ‘Truth Labs’ relied
on would vitiate the proceedings.
18. In the case at hand, the test is conducted at Santosh
Hospital. The Additional State Public Prosecutor has not produced
any material to demonstrate as to why the urine samples were or
are always sent to Santosh Hospital, a private laboratory and not
to any Government laboratory. Prior to sending the sample for
testing what is necessary is, authorisation of the Magistrate. No
material is produced that the Magistrate had authorised the testing
at a private laboratory. The State has also failed to produce any
Government notification or Circular which recognizes Santosh
Hospital as a Government recognized/authorised laboratory for
any kind of testing. Therefore, the very report that is provided by
the 2nd respondent is seeped in suspicion, as one urine sample
cannot project 5 broad band drugs or 5 psychotropic substances. 5
narcotic drugs in one urine sample cannot emerge, let alone
psychotropic substances.
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19. It is in public domain that narcotic drugs are derivatives
of natural products. Psychotropic substances are chemical
derivatives. The indication in the urine sample is 5 chemical
substances and if a person would consume all five, his life would
be at risk. It is, therefore, necessary after the conduct of test of
urine samples, confirmatory tests become mandatory. The
confirmatory tests are as afore-quoted. It is not that there is no
consideration by any Court with regard to confirmatory tests. The
Kerala High Court, in extensor, has considered the tests in the
case of SUO MOTU v. STATE OF KERALA10, and held as follows:
“…. …. ….
6. State Police Chief/Director General of Police, Police
Headquarters, Thiruvananthapuram, 3rd respondent, has filed
another statement dated 21.11.2019, wherein he has produced a
chart showing the number of NDPS Crimes registered during the
period 01.01.2016 to 30.09.2019 in each Police Districts in Kerala
– gender wise. Said statement is reproduced.
“A. A statement has been filed in this regard on
behalf of the State Police Chief on 30.09.2019 narrating the
steps taken to obtain the performance analyses of Abon Drug
Detection Kit. This Court, after considering the case on
24.10.2019 issued an interim order directing that Director
General of Police and State Police Chief, Kerala to furnish a
detailed statement of men, women and children involved in
such crimes and also the performance analysis report of
‘Abon Kits’ in the detection of NDPS crimes. In this regard a
performance analysis report was obtained from the
concerned authorities and the contents of the report are
narrated hereunder.
B. The District Police Chief Kochi, City collected ten
numbers of ABON Kit from Chief Store, Trivandrum and
distributed to Assistant Commissioner of Police, Narcotic Cell,
Kochi City, to check the result and performance level and 15
number was distributed to Assistant Commissioner of Police
Narcotic Cell, Trivandrum. The Assistant Commissioner of
Police, Narcotic Cell, Kochi City examined the Multy 6 oral
drug detection device in various persons addicted to different
Narcotic substances. The detection proved positive while
examining the cases of MDA, LSD, Hashish Oil, Ganja,
Nitrazepam Pills, etc., when checked, in co-operation with
De-addiction Centres. According to ACP Narcotic Cell, 9 drug
detection kits tendered positive results.
10
2021 SCC OnLine Ker. 665
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PROCEDURES:
1). PRELIMINARY ANALYTICAL TEST
1. Screening — Identify the suspected persons having
consumed a Narcotic substance from his behavior and
attitude depending on the influence of substance used.
2. Insert the sponge end of the fluid collector into his
mouth for 3 minutes and actively swab to get the
sponge saturated with Saliva.
3. Remove the collector from the mouth and insert into
the test device and turn the collector clockwise and
wait for one minute.
4. Rotate the collection chamber counter clockwise and
set the timer for 9 minutes and read the result at 9
minutes.
5. The drug positive oral fluid specimen. will not generate
a coloured line in the specific test line region of the
strip and the drug negative oral fluid specimen will
generate a line in the test line region.
A coloured line will always appear in the Control line
region. If the control line does not appear the test result is not
valid.
II. SECONDARY ANALYTICAL TEST
Secondary Analytical Test is used to obtain a
confirmed result by sending the specimen after sealing
with tamper evident tape and sent to FSL examination
where Gas Chromatography or Mass Spectrography
(GCMS) are preferred.
The result can be tallied with the opinion of a
MRO (Medical Review Officer) for confirmation.
ADVANTAGES
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1. No such scientific device is available till now to identify
a suspected drug user either to prosecute him or save
him sending to De-addiction Centres.
2. It is easy to handle and result oriented and can be
used everywhere.
3. All types of common drugs/substances can be
detected using this device.
4. The device can be utilized for investigation of crime
and traffic accident cases.
5. The company guarantees for two years.
6. The rampant use of drugs among students and
youths attending the DJ parties can be curtailed
and controlled by spreading an impression of
getting identified easily using this device.
DISADVANTAGES
1. The consumed person detected by the device can’t be
connected through reliable evidence to prove the
ownership.
2. If the suspected consumed person resists the collection
of oral fluid from his mouth it becomes difficult to
conduct the test.
3. Positive test result does not indicate the
concentration or quantity of the drug in the
specimen, but only shows that he has consumed
it. But, in Breath Analyzer, the concentration of
alcohol in breath can be read through a printer.
Hence, there is a chance of claiming the
consumption of any NDPS substances on medical
grounds.
4. A negative result may not necessarily indicate a drug-
free specimen. Drugs may be present in the specimen
below the cut off level.
5. Legal sanctity of the device for effective prosecution.
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REQUIREMENTS
1) The device must be equipped with collecting the
Biometrics or Fingerprint of the suspected person.
2) Additional facility providing issue of printed result.
3) As a practice in drunkenness tests, the addict/suspect
along with the Detecting Officer in presence of a
witness, have to make their signatures in the place
with non removable ink.
4) Enactment of suitable legislature/amendments in
related laws.”
In another judgment in the case of ANURAJ v. STATE OF
KERALA11, the High Court of Kerala has held as follows:
“…. …. ….
8. Pursuant to the above order, the Additional Chief
Secretary has filed an affidavit dated 13.10.2023 stating as
follows:
“3. It is submitted that based on the order of the
Hon’ble High Court dated 25.07.2023 in B.A Nos. 5686, 5549
and 5693/2023, as per the letter No. K2/212/2023- Home
dated 14.09.2023, the State Police Chief had been directed
to examine the possibility of establishing a lab/converting an
existing lab, exclusively for NDPS cases and if necessary, to
furnish a detailed and comprehensive proposal by
incorporating details of the infrastructure facility, total
expenditure for the project, availability of fund etc. In this
regard, the State Police Chief has reported that following
steps have been taken to ensure the completion of the
Chemical Analysis of Narcotic Drugs within the stipulated
time.
4. The testing facility of the Narcotic substances is
made available in the following Units:
1. State Forensic Science Laboratory,
Thiruvananthapuram
2. Regional Forensic Science Laboratory, Kochi.
11
Bail Application No.5549 of 2023
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3. Regional Forensic Science Laboratory, Thrissur.
4. Regional Forensic Science Laboratory, Kannur.
4. The testing facility for the examination of Ganja
Samples is present in the newly established 13 District
Forensic Science Laboratories (DFSLs). One more DFSL is
under the process of establishment at Wayanad. As of
now, there is one special unit under the State FSL, which
is functioning at the Regional Forensic Science Laboratory
at Thrissur. The Narcotic Division of RFSL, Thrissur, has
been functioning since 2020 and carries out exclusively
the examination of Narcotic Substances, A separate floor
has been constructed at RFSL, Thrissur for the purpose.
5. The Testing facility for narcotics substances
in the units under the State Forensic Science
Laboratories has been enhanced by providing
adequate amount in the State Plan Scheme and
Central Assistance Schemes for the procurement of
necessary instruments/equipment, chemicals
glassware and lab ware.
6. To establish the identity of any unknown
substance under the NDPS Act, at least two
Independent analytical techniques of which one
should be instrumental. So, it is mandatory to follow
alternative methods like Chromatography and
Spectroscopy. Gas chromatography (GC) and High
performance Liquid Chromatography (HPLC) offer
high sensitivity and specificity for confirmation of
presumptive results in screening tests. Gas –
Chromatography-Mass Spectrometry (LC-MS) are
the most most sensitive and specific methods for
confirmation of drug presence in a sample. The
Spectroscopic methods are FT-IR with standard
library/control and UV-Vis Spectrophotometer with
control sample. At present, from among the above
mentioned sophisticated and costly instruments Gas
Chromatography (GC) and High performance Liquid
Chromatography (HPLC), FT-IR with standard
library/Control, and UV-Vis Spectrophotometer with
control samples are made available to all the units
where the examination of the narcotic substances is
being carried out except for District Level
Laboratories where only the examination of Ganja is
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being carried out. All the basic requirement
concerning instrumentation are made available at
FSL and RFSLS.”
(Emphasis supplied)
A learned single judge of this Court, while considering this
issue has way back in 2008, in the case of R.MAYILVAHANAM v.
INTELLIGENCE OFFICER12, has held as follows:
“…. …. ….
76. P.W. 14 also admits that, on all the sample
packets, it is written as “5 gms of sample” whereas, the
weight of the samples that were examined by him were
4:7 gms (SI), 5.02 gms (S3) and 4.9 gms (S5). It is also an
admission made by P.W. 14 in his evidence that as per the
manual, colour test is not a definite test and it is
mentioned in the manual that while testing heroin, colour
test will be achieved while conducting the tests of other
alkaloids and uncontrolled substances. This witness also
admits in the cross-examination that he has not conducted
the two confirmatory tests viz., gas chromatography and
mask spectroscopy.
77. The testimony of P.W. 15 A. Ameer Razakhan,
another Assistant Chemical Examiner, is also to the same
effect and Ex. P-79 is his report and this witness also
admits in the course of his cross-examination that he has
not conducted quantitative or qualitative tests and goes on
to say that M.Os. 1, 3 and 5 sample packets did not contain
N.C.B. seal and the weight of SI pocket was 4.6 gms, the
weight of S2? packet was 4.9 gms and the weight of S3
packet was 4.7 gms. He admits that he has not mentioned
the reasons or grounds for his opinion and also for the
delay in conducting the tests. It has been brought out
further in the cross-examination of this witness that
Method A in respect of screening of samples and Method B
is in respect of confirmatory tests and Method A is
presumptive test that includes colour test and he has not
conducted any test mentioned in Method B, which is
confirmatory test.
12
2008 SCC OnLine Kar. 187
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78. What is clear from the testimony of the above
Assistant Chemical Examiners is that they only conducted
preliminary test or presumptive test but did not conduct
any confirmatory test so as to formally fix that the sample
packets contained contraband heroin and nothing but
heroin. This procedure adopted by the Assistant Chemical
Examiners and their failure to point out the percentage of
purity of the contraband drug and the difference in weight
of the samples received by them when compared to the
weight mentioned on the sample packets on the top, all
give rise to doubt the prosecution case insofar as its effort
to establish through the testimony, beyond all reasonable
doubt, that the sample packets which were tested by the
Assistant Chemical Examiners contained heroin and
nothing but heroin. In the absence of purity test being
conducted and the percentage of heroin drug being
indicated and no confirmatory test or quantitative test also
being held, I am of the view that the evidence of the
Assistant Chemical Examiners also creates yet another
loophole in the prosecution case.”
(Emphasis supplied)
The aforesaid judgments were not considering urine samples, but
they were considering seized contraband samples. Insofar as urine
samples are concerned, the coordinate Bench in the case of SRI
PRANAY NATARAJ supra has elucidated that tests are
mandatory.
20. The High Court of Bombay in the case of SAGAR
PARSHURAM JOSHI v. STATE OF MAHARASHTRA13 held that
in the absence of the report of the Chemical Analyzer, a bare
reference of, field test being conducted, is not “sufficient material”
to detain an applicant in jail. In the absence of documented,
standards of colour test reagents for preliminary identification of
drugs, would lead to doubting the authenticity of the test result.
Leaving the entire field test process to the understanding of the
field officers of the suspect substance, without any standard
documented colour test for reagents is arbitrary. It held as
follows:
“18. Before adverting to the arguments of the learned
counsel for the applicant, it may be stated that the Director
General of the Narcotic Control Bureau has issued a field officer’s
hand-book for guidance of Drugs Law Enforcement Officers.
13
2021 SCC OnLine Bom 3051
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Chapter VI refers to, ‘Drug Detection Kit’, the relevant paragraph
is as under:
“Drug Detection Kit: These kits assist the DLEO in forming
a reasonable belief about a substance being a drug. The kit is a
portable case containing different reagents that are used to test
a small quantity of the substance recovered and determine the
nature of the substance based on the color range resulting from
the reactions of the suspect substance with the reagents. There
are three types of test kits used at present : Narcotic Drugs Kit
to test traditional drugs like Ganja, Charas, Opium Heroin,
Cocaine, and the like; Precursor Chemicals Kit to test Acetic
Anhydride, Ephedrlne, Pseudoephedrlne etc. and Ketamlne Kit.
All these kits are very user friendly and come with an
Instruction sheet to guide the the user draw appropriate
Inference. It is essential that the DLEO conducts the test,
matches the resultant color and forms a reasonable belief that
the substance gives positive color pattern for a drug. This
process must be recorded In the Panchanama.”
19. I have perused the hand-book. Chapter VII of the hand-
book is about ‘Drug Identification and Field Testing’. Chapter I
enumerates, check-list, for Drugs Law Enforcement Officers,
while executing the field operation, to ensure that the Drugs Law
Enforcement Officer does not overlook anything, which might
subsequently affect the case. Item No. 10 in the check-list reads
as under:
“10. Were all recovered suspect substances field tested with
Drug Detection Kits/Precursor Testing Kits and the matching
colour results to show presence of ND, PS or CS and was it all
documented?’
20. In relation to the identification of drug, it states –
“Identification: Natural narcotic drugs like Ganja, Charas,
Opium Poppy can be easily identified by their color, texture and
smell. But, most of the drugs abused today are refined and
processed substances and are mostly circulated as white, off-
white or brown powder, crystals or flakes or colorless odorless
liquids. It is very difficult to identify a substance as a drug
unless it is tested with different reagents.”
21. So far as the Drug Detection Kit is concerned, it is stated
in the hand-book that these kits assist Drugs Law Enforcement
Officers in forming reasonable belief about substance being a
drug. The kit is a portable case containing different reagents that
are used to test a small quantity of substance recovered and to
determine the nature of substance based on the colour range
resulting from the reactions of the suspect substance with
reagents. It is stated that this process must be recorded in the
panchanama.
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22. Obviously, these tests are only indicative and
preliminary tests and need further confirmation for which
sample is sent to a laboratory. Instructions in Hand-book also
suggest preparation of the test memo in triplicate on the spot
and facsimile in print of seal used in sealing the envelopes, to be
affixed on test memos.
(emphasis supplied).
23. In the case at hand, admittedly, it is recorded in the
panchanama that test was conducted on the field drug kit and
the resultant colour pattern, (dark brown) conforms and
matched suspect substance i.e. amphetamine, recovered from
the person of the applicant. However, it may be stated that
natural narcotic drug like Ganja, Charas, Opium Poppy can be
easily identified by their colour, texture or smell but most of the
drugs abused today are refined and processed substances and
are mostly circulated as white, off-white or brown powder,
crystals or flakes or colorless, odorless liquids and, therefore, it
is very difficult to identify the substance as a ‘drug’ unless it is
tested with different reagents. A reagent is a substance or
compound added to a system to cause chemical reaction.
In the case at hand, prosecution has not pointed out with
which reagent the suspect substance was tested by the
field officers. Hand-book in Chapter VII as an illustration,
has just given few visuals with which the officers should
familiarize during the drugs law enforcement. Obviously,
it means, the Narcotic Control Bureau, Ministry of Home
Affairs, Government of India has not prescribed the
standards to establish minimum requirements for colour
test, and methods of testing reagents to determine nature
of substance, based on colour range resulting from
reaction with reagent. In the case at hand, it is
prosecution’s case that white powder (suspect substance)
recovered from the person of the applicant and the co-
accused when tested with reagents, it produced dark
brown colour, which matches colour pattern for the
amphetamine. However, there are no documented set
standards as to which substance upon testing with reagent/s
would produce, which colour. Thus, all and every aspect of field
testing is left to the experience, knowledge and perception of
Law Enforcement Officer.
24. Be that as it may, the National Institute of Justice,
US Department of Justice has set the NIJ standards for
colour test reagents/kits for preliminary identification of
the drugs of abuse. Table 1 in Chapter IV itemize
particulars of final colours produced by the reagents with
various drugs and other substances. However, a
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document of this kind, if any, by Ministry of Home Affairs
is not made available by the prosecution to prima-facie
ascertain and satisfy authenticity of test result of the field
test conducted of the suspect substance. Nor memos of
test are forming part of the charge-sheet. Thus, in my
view, bare reference of, field test being conducted, on the
kit in the panchanama is not “sufficient material” to
detain the applicant in the jail, in absence of report from
the Chemical Analyser. Besides, there is no such other
material to prima-facie accept that ‘suspect substance’
recovered from the applicant was amphetamine. It may
not be overlooked that the Chemical Analyser’s report is
an essential, integral and inherent part of the
investigation under the NDPS Act and would lay
foundation of accused’s culpability without which
Magistrate is not able to form an opinion and take
cognizance of the accused involved in the commission of
offence under the Act. In the case at hand, prosecution
relies on the test conducted on the field and reference of
such test being made in the panchanama. Except this,
there is neither ‘test memos’ of such tests on record
though, the Ministry of Home Affairs in the hand-book
suggested field officers’ to prepare the test memo in
triplicate (emphasis supplied). Additionally, in absence of
documented, standards of colour test reagents for
preliminary identification of drugs has not been made
available to this Court. Therefore, entire field test process
of the suspect substance, with reagents and colour
produced. whether matches colour pattern of particular
drug or not is left to the understanding of the field
officers which is arbitrary. Thus, prima-facie to accept the
authenticity of the preliminary test of the suspect
substance recovered from the accused persons,
prosecution is expected to place on record some more
particulars or atleast test memos, which has not been
done in the case at hand. Besides, it may also be stated
that though prosecution has collected/drawn samples of
the powder from a company where applicant and another
co-accused were working neither preliminary report of
that sample has been produced on record. Question to be
posed, as to why field officer did not conduct the field test
of the samples of ‘Ramlatan powder’ collected from the
company where accused were working. Had the
prosecution conducted this test and place on record ‘test
memos’, would have certainly assisted this Court in
appreciating prosecution case and contention of
applicant-accused. Therefore, to say that today before
this Court there is no sufficient material to accept, prima-
facie. authenticity of the test result of the, suspect
substance done on the spot by Field Test Kit.
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25. One may argue that reference in the panchanama of the
field test being conducted at the spot cannot be overlooked as it
is to be presumed in law that field officers drew the panchanama
in discharge of their official acts and, therefore, a relevant fact,
which can be tested only during the evidence. However, in this
case, officers were not precluded from filing the ‘test memos’
and also could have taken recourse to Section 36-A(4) of the
NDPS Act, and file Chemical Analyser’s report within extended
time.”
(Emphasis Supplied)
21. The High Court of Delhi is the case of AJAY MEENA v.
AIRPORT AUTHORITY OF INDIA14 has held that non-negative
reports for Amphetamine Urine Test, which is a screening test,
must be confirmed by gas chromatography/mass spectrometry. It
observes as follows:
“…. …. ….
3. The prime ground of challenge in the present writ
petition is that the medical report dated 07-11-2022, as
per which the test for ‘AMPHETAMINE SCREEN URINE’ is
‘non-negative’, itself notes that there are limitations of
procedures and the test being limited only to screening, in
case of ‘non-negative’ results, the same be confirmed by
gas chromatography/mass spectrometry (GC/MS) and
therefore, the Respondents should have put the Petitioner
to the required confirmatory tests, before coming to a
conclusion that the Petitioner is unfit for appointment.
… … …
7. From the facts of the case it is an undisputed
position that Petitioner has successfully cleared all the
tests and is high-up in merit. Insofar as the medical test is
concerned, the medical report is in favour of the Petitioner,
save and expect, the test ‘amphetamine screen urine’, for
which the test is non-negative. It is true that the
candidates were informed that if they tested non-negative
for any of the psychoactive substances they will stand
disqualified for selection, however, it cannot be overlooked
that the medical report itself delineates the limitations of
the procedure and provides that non-negative results
‘must be’ confirmed by gas chromatography/mass
14
W.P.(C) 17282 of 2022 disposed of on 23-12-2022
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spectrometry (GC/MS). While it is the case of the
petitioner that he has never consumed amphetamine or
any other drug, it is the case of the Respondents that the
medical report is to the contrary. Considering the fact that
the screening test conducted in the first instance may not
portray a correct picture and keeping in backdrop the
limitation of the procedures as also the fact that the
Petitioner has placed on record a medical test report dated
07-12-2022 albeit of a private diagnostic centre, this Court
deems it appropriate to refer the Petitioner for a review
medical examination.”
(Emphasis supplied)
22. The High Court of Calcutta in the case of RAKESH JHA
v. STATE OF WEST BENGAL15 held that the CFSL / Laboratory
Report becomes an essential and integral part of the investigation
for establishing the charges under the NDPS Act. The Chemical
Examination Report is the most vital piece of evidence which is
required to be made part of the charge-sheet. It observes as
follows:
“12. The petitioner, before us, on the other hand, has been
charged for commission of an offence under the NDPS Act which
requires the Trial Court to take cognizance of the offence
committed under the Act. This means that the
CFSL/Laboratory Report becomes an essential and integral
part of the investigation for establishing the charges under
the NDPS Act. The Chemical Examination Report therefore
becomes the most vital piece of evidence which is required
to be made part of the charge-sheet.”
(Emphasis Supplied)
In the light of what is noted hereinabove, what would become
unmistakably clear is, the necessity of urine samples being tested
by a Government laboratory or the tests that are done by a private
laboratory, to be put to confirmation, by the aforesaid two tests,
both of which, have admittedly not happened in the case at hand.
The FSL report was not even a part of the charge sheet, what was
part of the charge sheet was the report by Santosh Hospital.
Admittedly, the report of Santosh Hospital, even according to its
brochure, is only presumptive and not conclusive.
15
2023 SCC OnLine Cal 2463
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23. The petitioners are alleged of consumption of drugs. If it
were to be any other allegation of peddling or distribution for the
purpose of sale, it would have been altogether a different
circumstance. The petitioners are not alleged of that. They are
alleged of consumption. The consumption of drugs has become a
huge menace. While the distributors or the peddlers cannot be
spared, so the consumers. The law itself recognizes lesser
punishment upon the consumer. But, nonetheless, they are
consumers of drugs. Therefore, it is necessary to test those
persons who are alleged of consuming drugs, in a heist of this
kind, so that the offence of consumption of drugs cannot be
watered down by faulty tests.
24. It now becomes apposite to refer to the National
Policy on Narcotic Drugs and Psychotropic Substances
(‘Policy’ for short) as published by the Narcotic Control Bureau
(‘NCB’ for short). One of the objectives of the Policy is to re-assert
India’s commitment to combat the drug menace in a holistic
manner. The relevant portion of the Policy which deals with the
establishment and working of Forensic Laboratories, for testing of
NDPS substances reads as follows:
“LABORATORIES
82. The NDPS Act, 1985 spreads the network of enforcement far
and wide by enabling the Central Government and the State
Governments to empower any of their officers to enforce it.
Hence, we have a large number of agencies seizing drugs in the
country. Although the total number of seizures in the country
(about 20,000 per year) is not very large compared to the size
and population of the country, these seizures are made by
several agencies in several parts of the country. Several forensic
labs in the country test these samples. These are the Central
Revenue Chemical Laboratory (CRCL), the Central Forensic
Science Laboratories (CFSL) and the State Forensic Laboratories
(FSL) of each State. Successful prosecution of offenders
hinges on the quality of test reports. Each of the seized
samples has to be tested quickly, precisely and accurately
as the test report forms the basis for trial of the accused.
On the other hand, if the seized substance is not a drug, a
quick and accurate report helps exonerate those who are
arrested but against whom there is no evidence.
83. The Government of India shall continuously build the
capacities of the personnel working in the forensic labs in
the country and improve the quality of their equipment so
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as to get in the shortest possible time precise and accurate
test reports which can withstand the legal scrutiny.
84. In order to achieve the above objective, one nodal
national drug testing laboratory will be identified which
shall, in addition to testing samples that it receives, be
responsible for the following:
a) Developing/ documenting/ prescribing standard testing
protocols for each narcotic drug, psychotropic substance
and precursor and any other related tests.
b) Developing/ documenting/ prescribing standard
methods for testing samples of blood, urine, etc. to
confirm consumption of narcotic drugs or
psychotropic substances by any person.
c) Developing advanced forensic testing methods
such as impurity profiling.
d) Developing standardized forms of reporting
which can withstand legal scrutiny.
e) Publishing and disseminating manuals on the
above to all the forensic science labs in the country.
f) Identifying the basic minimum equipment required to
conduct tests to determine the nature and purity of any
narcotic drug, psychotropic substance or precursor.
g) Identify the gaps between the equipment that is
required and that which is available in each of the labs.
h) Make recommendations on the equipment required to
strengthen each laboratory.
i) Conduct training programmes for the personnel
working in various forensic laboratories in the
country.”
(Emphasis supplied)
The Policy states that the Government of India shall continuously
build the capacities of the personnel working in the forensic labs in
the country and improve the quality of their equipment for the
successful prosecution of offenders which hinges on the quality of
the forensic test reports. Each of the seized samples has to be
tested quickly, precisely and accurately, as the test report, forms
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the basis for trial of the accused. In order to achieve this
objective, the Policy states that the Government of India shall
identify one nodal national drug testing laboratory which shall
serve several purposes including developing/ documenting/
prescribing standard methods for testing samples of blood, urine,
etc. to confirm consumption of narcotic drugs or psychotropic
substances by any person; developing advanced forensic testing
methods and standardized forms of reporting which can withstand
legal scrutiny; publishing and disseminating manuals, to all the
forensic science labs, in the Country and conducting training
programmes, for the personnel working in various forensic
laboratories in the Country.
25. However, no such nodal drug testing laboratory has
been identified by the Government of India, nor any standard
methods have been prescribed for blood or urine testing. It is
therefore necessary for the Central and State Governments to
notify a nodal drug testing laboratory, in order to prescribe
standard protocols and methods for testing samples of blood,
urine, etc. and also perform other functions as afore-quoted in the
Policy, failing which, the Courts would be constrained to accept the
contentions of the accused and obliterate the crime, like in the
case at hand.
26. In that light, the petitioners deserve to be let off from
the prosecution, for the fault of the State.
27. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Charge sheet filed by the Police in Spl.Case No.741
of 2024 pending before the VIII Additional District
and Sessions Judge, Bengaluru Rural, Bengaluru
stands quashed qua the petitioners.
(iii) The State shall, as expeditiously as possible, notify
any Government laboratory, to be the laboratory for
the purpose of testing urine samples, particularly for
alleged offences under the NDPS Act or notify any
private laboratory for the said purpose.
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(iv) The State shall report compliance to this Court of
such notification.
(v) It is made clear that the findings rendered in this
order would not become applicable to any other
accused.”
5. In the light of the order passed by this Court
(supra) and for the reasons aforementioned, the following:
ORDER
[I] Criminal Petitions are allowed.
[II] In Crl.P.No.6998/2022, proceedings in Crime
No.111/2022 pending before the M.M.T.C- I, Mayo
Hall, Bengaluru City, stand quashed, qua the
petitioner.
[III] In Crl.P.No.8931/2022, Complaint dated
13.06.2022 and FIR dated 13.06.2022 bearing
Crime No.0111/2022 pending before the
Metropolitan Magistrate (Traffic Court-1), Mayohall,
Bangalore, stand quashed qua the petitioners and
Respondent-police is directed to release to the
Petitioners, both their mobile phones seized vide
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the Seizure Report dated 13.06.2022 bearing P.F.
No.46/2022 in Crime No.0111/2022 along with their
Rudraksh bracelet, Kadda and other personal
belongings, which are still in the police custody.
Sd/-
(M.NAGAPRASANNA)
JUDGE
CBC
List No.: 2 Sl No.: 50
