Bombay HC questions validity of field testing of narcotic, psychotropic substances

Justice Sandeep Shinde said in the absence of any documented standards of colour test reagents for preliminary identification of drugs seized from an accused, entire field testing of the suspect substance — as to whether the colour produced after reaction with the reagent matches with expected colour pattern for a particular drug or not — was left to the understanding of field officers, which the judge held to be “arbitrary”.

In an important order, the Bombay high court (HC) on Friday questioned the validity of field testing of narcotic drugs or psychotropic substances by law enforcement agencies for lack of documented standards.

Bombay high court . (HT FILE)

Justice Sandeep Shinde said in the absence of any documented standards of colour test reagents for preliminary identification of drugs seized from an accused, entire field testing of the suspect substance — as to whether the colour produced after reaction with the reagent matches with expected colour pattern for a particular drug or not — was left to the understanding of field officers, which the judge held to be “arbitrary”.

The court made the observation while granting bail to 27-year-old Ulhasnagar resident Sagar Joshi, who has been booked by Kopar Khairane police station in Navi Mumbai for alleged possession of 65 grams of amphetamine, a psychotropic substance.

Joshi was arrested on October 11, 2019, along with one of his colleagues at a pharmaceutical company at Ambernath. He claimed that the substance seized from them was “Ramlatan powder”.

His counsel, advocate Sanjeev Kadam, submitted that the pre-trap panchanama did not show that the raiding team was carrying field testing kit which shows that no field test was conducted. He pointed out that the seizure panchanama merely mentioned that the field test indicated that the seized substance was amphetamine, but no field test reports were submitted with the charge sheet.

The court found matter in his submissions. Justice Shinde said that in the case at hand, the prosecution claimed that white powder was seized from Joshi and his colleague and when tested with reagents, it produced dark brown colour, a colour pattern for amphetamine. “However, there are no documented, set standards as to which substance upon testing with reagent/s would produce which colour,” said the judge. “Thus, all and every aspect of field testing is left to the experience, knowledge and perception of the law enforcement officer,” he said.

In the United States of America, the HC said, the National Institute of Justice has set standards for colour test reagents or kits for preliminary identification of drugs and has itemised particulars of final colours produced by reagents with various drugs and other substances.

The court said no such document, if any issued by the ministry of home affairs, was produced by the police to prima facie ascertain and satisfy the authenticity of field test kit results.

It further said standardisation of field test results was necessary in view of the fact that most of the drugs abused today are refined processed substances and are mostly circulated as white, off-white or brown powder, crystals or flakes or colourless, odourless liquids, and, therefore, it was very difficult to identify these substance unless tested with different reagents.

In Joshi’s case, HC said, the police claimed that the seized substance was tested on field by using a field kit and the result matched for amphetamine. But, there was no material to prima facie accept that the substance recovered from the applicant was amphetamine except mere mentioning of the field test result in the seizure memo, and even the field test report was not annexed to the charge sheet.

The HC also accepted Kadam’s argument that the charge sheet filed against Joshi was incomplete in as much as it did not contain the chemical analyser’s report about the seized substance and therefore, the accused was entitled to default bail on completion of 180 days, as contemplated under section 167 of the Criminal Procedure Code.

“It may not be overlooked that the chemical analyser’s report is an essential, integral and inherent part of the investigation under the Narcotic Drugs and Psychotropic Substances Act, 1985 and would lay foundation for culpability of the accused, without which the magistrate would not be able to form an opinion and take cognisance of involvement of the accused in commission of offence under the Act,” the court said.