In the first case of its kind, the National Anti-Doping Disciplinary panel has reprieved an athlete since the National Anti-Doping Agency (NADA) failed to give her an opportunity to witness the opening of the ‘B' sample bottle.
Former National shot put and discus champion Saroj Sihag was the beneficiary of the strict application of the WADA rules that mandate that whenever the ‘B' sample bottle is opened, the athlete has to be intimated, irrespective of whether the athlete had waiver his/her right to have the ‘B' test.
“It is now established CAS jurisprudence that the athlete's right to attend the opening and analysis of her B sample is fundamental and, if not respected, the ‘B' sample results must be disregarded,” wrote the Dinesh Dayal-headed hearing panel in its order dated June 6.
The panel was mainly guided in its decision by the Court of Arbitration for Sport (CAS) verdict in Chinese judoka Wen Tong's case last February. Wen Tong, an Olympic champion in 2008, was banned by the International Judo Federation (IJF) for a clenbuterol violation in the World championships in Rotterdam in August, 2009.
The Chinese woman appealed to CAS and won, though CAS stated that it was not ruling that Wen took clenbuterol or not. Her case hinged on the same argument as that of Sihag, of an athlete's fundamental right to witness the ‘B' sample opening.
Sihag, a CRPF athlete, returned a positive test for steroid stanozolol at the all-India Police championships in February last year.
She told the panel that after the NADA failed to arrange for her ‘B' sample test on April 6 last year, as wanted by her, it went ahead and tested the ‘B' sample on May 18 without informing her.
“As the athlete expressly exercised her right to have the 'B' sample tested in her presence, the absence of any admissible 'B' sample testing to corroborate the finding of the 'A' sample means that the NADA has failed to establish an anti-doping rule violation on the part of the athlete,” the panel wrote in its order.
Equestrian players depose
Meanwhile, two equestrian competitors who won medals at the last National Games in Jharkhand, Maj. Rohit Dagar and Capt. Danni Swittens, deposed before the Jasmeet Singh-headed panel with regard to the charges of anti-doping rule violations brought against them.
Dagar who tested positive for corticosteroid prednisone stated that he had been prescribed certain medications for rashes before reaching Jamshedpur in February last. There he continued to suffer from health problems and was advised more medicines by doctors.
He said did not realise there was a prohibited substance among the medications (prednisone) till the team's physio reached Jamshedpur. He had discontinued the medicine and competed after writing down all the medicines in the doping control form.
Prednisone in oral form, which Dagar took, is banned. The order was reserved in the case.
Swittens, who is facing a salbutamol charge, admitted that he had used an inhalation that contained salbutamol for his breathing problems just after his event but prior to sample collection.
Salbutamol is a permitted drug. But in excess of 1000ng/ml in urine, it is considered not to be for an intended therapeutic use and thus reported as an adverse analytical finding. Swittens' sample showed 1316ng/ml.
He was asked to reply whether he would be interested in undergoing a pharmacokinetic study which can determine whether the abnormal result was the consequence of the use of a therapeutic dose (maximum 1600 micrograms over 24 hours) of inhaled salbutamol.
The panel also asked the NADA to consult the TUE Committee to find out whether any concessions could be granted to Swittens.