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2021 (2) TMI 310 - HC - CustomsAdmissibility of application - collection of samples - allegation is that the proceedings are to be conducted by the Executive Magistrate and the application was dismissed as being not maintainable - HELD THAT - It is apparent that the sanctity of the provision of Section 52A(2) of the NDPS Act, 1985, for drawing of the samples in the presence of a Judicial Magistrate is fortified and strengthened by the provisions of Section 52A(4) of the NDPS Act, 1985. The section fortifies the sanctity of the proceedings before the Judicial Magistrate in relation to inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under Section 52A(2) and certified by the Magistrate, as being primary evidence in respect of such offence. The impugned order is set aside and in view thereof the learned Judicial Metropolitan Magistrate on duty on 8.6.2020 is directed to take up the application under Section 52A(2) of the NDPS Act, 1985, in File No. VIII(AP)10/P I/2665-C/Arrival/2019 of the case for drawing the samples in accordance with law - Furthermore, in as much as the alleged recovery of the contraband in the instant case is 1957 gms of Heroine which falls within the ambit of the commercial quantity in terms of serial no. 56 of the table prescribed under Clause vii (a) and Clause xxxiii of Section 2 of the NDPS Act, 1985, the learned Additional Sessions Judge seized of the application under Section 36A(4) of the NDPS Act, 1985 which is to be taken up for consideration on 10.6.2020 shall dispose of the said application on the date fixed. Petition disposed off.
Issues Involved:
1. Maintainability of application under Section 52A of the NDPS Act before a Judicial Magistrate. 2. Validity of the impugned order dated 01.06.2020 by the Duty Metropolitan Magistrate. 3. Directions for drawing and certifying samples of seized narcotic drugs. Detailed Analysis: 1. Maintainability of Application under Section 52A of the NDPS Act before a Judicial Magistrate: The primary issue was whether an application under Section 52A of the NDPS Act, 1985, for the collection of samples, is maintainable before a Judicial Magistrate. The petitioner, Air Customs, argued that such applications have been entertained by the Metropolitan Magistrate in several cases. The respondents did not oppose the petitioner's prayer to set aside the impugned order and to draw samples in the presence of the Metropolitan Magistrate. The court observed that Section 52A(2) of the NDPS Act explicitly allows for an application to be made to any Magistrate for certifying the correctness of the inventory, taking photographs, and drawing representative samples in the presence of such Magistrate. This was supported by the Supreme Court's verdicts in *Noor Aga V. State of Punjab* and *Union of India V. Mohal Lal & Ors.*, which emphasized the necessity of drawing samples in the presence of a Magistrate and certifying them as primary evidence. 2. Validity of the Impugned Order Dated 01.06.2020 by the Duty Metropolitan Magistrate: The impugned order dated 01.06.2020 dismissed the application filed by Air Customs under Section 52A of the NDPS Act, stating that the application was not maintainable before the court and should be conducted by the Executive Magistrate. The court found this dismissal to be incorrect, as the application under Section 52A(2) is indeed maintainable before a Judicial Magistrate. The impugned order was set aside as it did not align with the provisions and the judicial precedents. 3. Directions for Drawing and Certifying Samples of Seized Narcotic Drugs: The court directed that the application under Section 52A(2) of the NDPS Act be taken up by the Judicial Metropolitan Magistrate on duty on 08.06.2020. It mandated that the samples be drawn and certified on the same day, with the proceedings conducted at 3 p.m. The learned counsel for the respondents was allowed to be present through video conferencing during the drawing of the samples. Additionally, considering the commercial quantity of the seized contraband (1957 grams of heroin), the court directed the Additional Sessions Judge to dispose of the application under Section 36A(4) of the NDPS Act on 10.06.2020. Conclusion: The court concluded that the application under Section 52A(2) of the NDPS Act is maintainable before a Judicial Magistrate and set aside the impugned order dated 01.06.2020 by the Duty Metropolitan Magistrate. It provided clear directions for the drawing and certification of samples in compliance with the law, ensuring that the process is conducted under judicial supervision to maintain the integrity of the evidence.
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