2020 (12) TMI 532 - HC - Indian Laws

Smuggling - seizure of contraband - disposal of drugs and psychotropic substances - Section 52 A (2) of NDPS Act - Notification No. G.S.R. 38(E) dated 16.01.2015 - HELD THAT - Notification No. G.S.R. 38(E) dated 16.01.2015, in suppression of the earlier Notification G.S.R. 339(E) dated 10.05.2007 inter-alia provides that officer in charge of the police station shall within 30 days from the date of the receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52(A)(2) in terms of Annexure 2 to the said notification. Sub Para (2) of Para 4 that after the Magistrate allows the application under sub-section (3) of Section 52A, the officer mentioned in sub-para (1) of Para 4 shall preserve the certified inventory, photographs and samples drawn in the presence of Magistrate as primary evidence for the case and submit details of seized items to the Chairman of the Drugs Disposal Committee for a decision by the Committee in the question of Disposal. As per Section 52A (2), only the officer in-charge of a police station or the officer who is empowered under Section 53 of NDPS Act can dispose of drugs under Section 52 A of NDPS Act. Insp Manoj Narwal is neither an officer in charge of Police Station / SHO nor he is empowered under Section 53 of the NDPS Act. Moreover, the said Insp. is not an officer who prepared the alleged list of the recovered items, list of recovered documents, panchnama, or draws the sample, or seized the alleged drugs - It is pertinent to mention here that as per para 4 of the Notification No. G.S.R. 38(E) dated 16.01.2015, in suppression of the earlier Notification G.S.R. 339(E) dated 10.05.2007 inter-alia provides that officer in charge of the police station shall within 30 days from the date of the receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52(A)(2) in terms of Annexure 2 to the said notification. As per the prosecution case, Insp. Praveen Dhull prepared a list of recovered articles, documents, Panchnama, etc. but not by Insp.Manoj Narawal, thus, the said Manoj Narawal is neither officer in charge of the police station nor empowered under section 53A of NDPS Act who can dispose of the drugs or nor move an application before the Magistrate for disposal of drugs as defined under sub-section 2 of section 52A of NDPS Act. Moreover, the said application was moved contrary to the notification dated 10.05.2007 and 16.01.2015 of Ministry of Finance (Department of Revenue), Government of India. The orders passed by learned Magistrate and learned ASJ/Special Judge, NDPS, New Delhi are bad in law, thus, deserves to be set aside - petition allowed.

Summary

Issues Involved:
1. Legality of the seizure and subsequent handling of narcotic drugs and psychotropic substances.
2. Authority of officers involved in the seizure and disposal process.
3. Compliance with statutory guidelines and notifications regarding the disposal of seized drugs.
4. Validity of the orders passed by the Magistrate and ASJ/Special Judge, NDPS.

Detailed Analysis:

1. Legality of the Seizure and Subsequent Handling:
The petitioner argued that the seizure and handling of the contraband were not conducted as per the statutory requirements. The contraband was seized from M/s Moksh Meditech, and the list of recovered items, documents, and panchnama were prepared by Inspector Praveen Dhull. However, the petitioner contended that the proper procedure under Section 52A of the NDPS Act was not followed, as the inventory was not prepared at the spot but at the office of CBN at Janakpuri.

2. Authority of Officers Involved:
The petitioner challenged the authority of Inspector Manoj Narwal, who filed the application for the disposal of seized drugs. According to Section 52A(2) of the NDPS Act, only the officer in charge of a police station or an officer empowered under Section 53 of the NDPS Act can dispose of drugs. Inspector Manoj Narwal was neither the officer in charge of a police station nor empowered under Section 53. Additionally, he did not prepare the list of recovered items, documents, or panchnama, which further questioned his authority to move the application for disposal.

3. Compliance with Statutory Guidelines and Notifications:
The petitioner emphasized non-compliance with the statutory guidelines and notifications issued by the Ministry of Finance. As per Notification No. G.S.R. 339(E) dated 10.05.2007 and G.S.R. 38(E) dated 16.01.2015, the officer in charge of the police station or an officer empowered under Section 53 must prepare an inventory and apply to the Magistrate for disposal. The petitioner relied on the Supreme Court judgment in Union of India vs. Mohanlal & Anrs. (2016) 3 SCC 379, which clarified the procedure for disposal of seized drugs, emphasizing the need for compliance with the statutory guidelines.

4. Validity of Magistrate and ASJ/Special Judge Orders:
The court found that the orders passed by the Magistrate and the ASJ/Special Judge, NDPS, were not in accordance with the law. The application for disposal was moved by an unauthorized officer, Inspector Manoj Narwal, contrary to the statutory provisions and notifications. Consequently, the orders dated 09.07.2020 by the Magistrate and 02.09.2020 by the ASJ were set aside.

Conclusion:
The court concluded that the procedure adopted by the CBN officials did not conform to the statutory requirements under the NDPS Act and relevant notifications. The petition was allowed, and the impugned orders were set aside. The judgment emphasized the necessity of strict adherence to statutory guidelines for the disposal of seized narcotic drugs and psychotropic substances to ensure the legality and fairness of the process.