Re-Testing Of NDPS Samples Not Routine; Haphazard Import Of Re-Testing Rights From Other Statutes Impermissible: J&K And Ladakh High Court
Deekshitha Sharmile
The High Court of Jammu and Kashmir and Ladakh Single Bench of Justice Rajesh Sekhri allowed petitions by accused persons facing NDPS charges, holding that while re-testing can form part of an accused’s rights, it cannot be Haphazardly and mechanically imported from other laws without statutory limits. In a prosecution arising from seizure of alleged contraband and conflicting laboratory reports after a second-sample re-test, the Court held that under the NDPS Act re-testing is not routine and is barred unless compelling, exceptional circumstances exist and quashed the charge-sheet and consequential orders.
The case originated from Crime No. 10/2024 registered by the Narcotics Control Bureau (NCB), Jammu. On 16 April 2024, the agency received information about alleged smuggling of narcotic drugs in Rajouri. The following day, the NCB team intercepted two vehicles, recovering a packet weighing 0.870 kilograms suspected to contain heroin. The petitioners were arrested, and the vehicles seized.
A sample was sent to CRCL Delhi, which reported on 20 May 2024 that the material did not test positive for heroin or other narcotic substances but showed the presence of Viagra. Based on this report, the trial court granted interim bail on 18 September 2024. Subsequently, the prosecution sought re-testing, and the second sample was sent to CFSL Chandigarh. On 20 December 2024, the laboratory reported detection of Tramadol, Caffeine, and Dextromethorphan. Following this, the trial court cancelled interim bail on 5 February 2025 and remanded the petitioners to custody.
The petitioners challenged the cancellation of bail and the charge-sheet, contending that re-testing was impermissible under the NDPS Act. The NCB opposed, citing recovery of commercial quantity and application of Section 37 NDPS Act. Justice Rajesh Sekhri recorded: “Petitioners have predominantly assailed the determination of learned trial court in having the second sample tested.”
The Court referred to Supreme Court precedent in Thana Singh v. Central Bureau of Narcotics (2013): “Supreme Court clarified that the legislature, in its wisdom, has expressly omitted a similar provision in NDPS Act… Therefore, as an amalgamation of various factors, re-testing within the framework of NDPS Act came to be defined… 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.”
Quoting directly, the Court stated: “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.”
Justice Sekhri observed: “In the present case, the investigating agency sent a sample of the contraband to CRCL Delhi… As per the report, the sample did not test positive for any Narcotic Drug or Psychotropic Substance… For further identification/confirmation, the investigating agency filed application before the trial court… and on the same day it came to be allowed.”
The Court noted the prosecution’s application: “Hence NCB Jammu intends to forward other sample to CFCL, Chandigarh for retesting.” On the trial court’s order, Justice Sekhri recorded: “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.”
Finally, the Court stated: “It is evident… 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.”
The Court held: “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.”
Justice Rajesh Sekhri directed: “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. With the aforesaid observations, both the petitions are disposed of.”
Advocates Representing the Parties
For the Petitioners: Mr. M.A. Bhat, Advocate; Mr. Masood Chowdhary, Advocate; Mr. Shafiq Chowdhary, Advocate
For the Respondents: Mr. Sumant Sudan, Advocate vice Mr. Vishal Sharma, DSGI
Case Title: Mohd. Mansha & Ors. v. Union of India
Neutral Citation: 2026:JKLHC-JMU:356
Case Number: Bail App No. 54/2025 c/w CRM(M) No. 969/2025
Bench: Justice Rajesh Sekhri
