2017 (6) TMI 923 - HC - Indian Laws

Confiscated/disposed/destroyed under Section 52A of NDPS Act or under Section 63(2) of NDPS Act - Held that - For the purpose of the instant petition the proper procedure for confiscation and disposal of the case property could be done under Section 52A of NDPS Act and not under Section 63(2) of NDPS Act as the instant facts of the petition is not that of the unclaimed articles (narcotic drug, psychotropic substance or controlled substance) seized from a public place as claimed by the respondent/NCB. In the instant petition since the seized articles belonged to the aforementioned persons therefore, the lower Court was right in adopting the procedure for disposal of the case property under Section 52A of NDPS Act instead of under Section 63(2) of NDPS Act directly. In the present petition out of the nine parcels/packets seized, one parcel/packet does not discloses the person who booked it. Since all the nine parcels/packets were seized jointly from the same spot/place the possibility of the said parcel/packet being booked by one of the above-mentioned person cannot be ruled out therefore, the same could be kept jointly. There is one provision in NDPS Act for disposal of the seized narcotic drugs and psychotropic substance, i.e. under Section 52A of NDPS Act, is set aside to that extent only in presence of Section 63(2) of NDPS Act. However for the purposes of the instant petition confiscation and disposal of the case property is rightly done under Section 52A of NDPS Act resulting into dismissal of the present petition.

Summary

Issues Involved:
1. Application under Section 63(2) of the NDPS Act for confiscation and disposal of narcotic drugs.
2. Applicability of Sections 52A and 63(2) of the NDPS Act.
3. Identification of persons involved in the narcotic drug parcels.
4. Legal procedures for the disposal of narcotic substances.

Issue-wise Detailed Analysis:

1. Application under Section 63(2) of the NDPS Act for confiscation and disposal of narcotic drugs:
The petitioner, Narcotics Control Bureau (NCB), filed a petition under Section 482 Cr.P.C. to set aside the order dated 15.07.2015 by the Special Judge, NDPS/N. Delhi, which dismissed their application under Section 63(2) of the NDPS Act for the confiscation and disposal of seized narcotic substances (45gm Cocaine, 555gm Heroin, and 320gm Hashish). The NCB argued that Section 63(2) allows for the confiscation of narcotics when the offender is not known or cannot be found.

2. Applicability of Sections 52A and 63(2) of the NDPS Act:
The NCB contended that Section 63(2) should be applied for the confiscation and disposal of narcotic substances when the offender is unknown. They argued that Section 52A deals with pre-trial disposal and does not mention 'confiscation'. The Amicus Curiae, however, pointed out that Section 52A is designed to avoid pilferage and ensure evidence collection, allowing for the destruction of narcotics while keeping samples for future trials if the accused is identified.

3. Identification of persons involved in the narcotic drug parcels:
The NCB listed the senders and recipients of the nine seized parcels, identifying several individuals with addresses. The court noted that the onus was on the NCB to prove under Section 108 of the Indian Evidence Act, 1972, that these individuals did not exist. The presence of identifiable persons meant that the seized property should be treated as case property and handled according to Section 52A, not Section 63(2).

4. Legal procedures for the disposal of narcotic substances:
The court examined previous orders and the Supreme Court's guidelines in Union of India vs. Mohanlal and Another, which outlined procedures for the disposal of seized narcotics. The court concluded that the proper procedure for the confiscation and disposal of the case property should be under Section 52A, not Section 63(2), since the seized parcels were linked to identifiable individuals.

Conclusion:
The court upheld the lower court's decision to dismiss the NCB's application under Section 63(2) and confirmed that the disposal of the narcotic substances should follow the guidelines under Section 52A of the NDPS Act. The court emphasized that Section 63(2) applies only to unclaimed articles where no claimant can be found, which was not the case here. The petition was dismissed, and the impugned order dated 15.07.2015 was deemed appropriate.