Ezekial Toyo vs State

This revision has been directed against the order passed by the Additional Special Judge (N.D.P.S.Act Cases) Chennai in Crl.M.P.No.141 of

2001 in C.C. No. 98 of 1999.

The prosecution case is that on 26.3.99 at 15.00 hours at the bus stop near Tambaram Railway Station, the first respondent was found in

possession of 250 gms of Heroin Powder and the revision petitioner who is the second accused in that case was said to be in possession of 1 kg.

of Heroin in his house at No.26/1, Vengambakkam Salai, Balaraman Nagar, Kaspapuram, Chennai-600 073, without any valid permit or licence.

Therefore, both of them were charge sheeted for an offence u/s 8(c) read with 21 and 29 of N.D.P.S. Act.

Section 21 of N.D.P.S. Act empowers the court to impose a sentence of R.I. for a term which shall not be less than 10 years but which may

extend to twenty years and also fine, which shall not be less than one lakh of rupees but which may extend to two lakhs of rupees for an offence of

possession of narcotic drugs as may be proved u/s 8(c) of the said Act. Under these circumstances, the petitioner who is the accused No.2

challenges the samples analysed by the concerned laboratory on the ground that the samples were not taken from out of the bulk that was said to

have been seized from the accused, besides denying the very seizure itself. Therefore, he filed an application before the trial court requesting the

court to take samples from the bulk available in the court and send the same for analysis along with the sample already taken and marked as S2

and S4, find out the percentage of heroin found herein and also the percentage of di-acetyle morphine separately. The petition was dismissed by

the trial court on the ground that there was no reason for taking and sending the sample for analysis especially when the chemical analysis has been

done on 6.5.1999 and the analyst was examined on 25.8.2000. Further he has said that there was no necessity to find out the percentage of the

di-acetyle morphine and there is no provision for entertaining the petition.

The learned counsel appearing for the revision petitioner points out that section 80 reads that the provisions of this act or the Rule made

thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 or the rules made thereunder. By virtue of this

provision, he draws the attention of this court to section 25 of the Drugs and Cosmetics Act which speaks about the report of the Government

Analyst. Sub-section (4) of section 25 of the Drugs and Cosmetics Act enables the court to cause the sample of drug or cosmetics produced

before the magistrate, to be sent for test or analysis to Central Drug Laboratory, unless the sample has already been tested by the said Laboratory.

This can be done only where a person has, under sub-section (3) notified his intention of adducing evidence in contravention of a Government

Analyst''s report. Sub section 3 lays down that a report of the Government Analyst shall be evidence of the facts stated therein and shall be

conclusive, unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed u/s

18-A of the Act has, within twenty eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any

proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report. Ultimately, what is important is

the intention of the accused to adduce evidence in contravention of the report and the said intention should be notified in writing either to the

Inspector or to the Court within 28 days of the receipt of a copy of the analyst report. This provision could be applied to the facts of the present

case by virtue of section 80 of the N.D.P.S. Act only when it is established that the revision petitioner notified his intention of the report within 28

days of the receipt of a copy of the report of the analyst. It is evident from the order of the Special Judge that the chemical analysis was done on

6.5.99 and the chemical analyst was examined on 25.8.2000. But the revision petitioner in this case has not notified his intention to adduce

evidence to controvert the analyst report within 28 days of the receipt of the copy of the report, though, the copy of the report was furnished to

him long before. The purpose of providing a period of 28 days for the accused to notify his intention has some significance. That right has got to be

exercised early, because in case, the sample is sent for analysis after a long time by efflux of time, there is likelihood of its character being changed.

Learned counsel appearing for the petitioner relied on a ruling of this court rendered in Crl. R. C. No.338 of 1996 wherein it has been held that

u/s 25 of Drugs and Cosmetics Act, it would be possible for the sample being tested by the Central Drugs Laboratory under certain contingencies.

In that case, it appears both the parties had not objected for reanalysis of the same sample and therefore it was ordered to be analysed by one of

the Central Forensic Labs, Madras, duly notified for the said purpose. The decision cited by the learned counsel appearing for the revision petition

does not discuss the relevant provisions found u/s 25 of Drugs and Cosmetics Act to be used in cases like the present one by virtue of Section 80

of N.D.P.S. Act. Inasmuch as sub-section (3) of section 25 of the Act, 1940 expects the accused to notify his intention within 28 days of receipt

of the copy of the analyst report and the revision petitioner herein has not done so within that period, the question of invoking provision of Section

25 of the Drugs and Cosmetics Act by virtue of Section 80 of N.D.P.S.Act does not arise in this case.

In view of the above discussion, the revision is devoid of merits and hence dismissed accordingly.