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TMI Blog2017 (6) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, 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. - CRL.M.C. 5105/2015 & CRL.M.A.18398/2015 - - - Dated:- 26-4-2017 - I. S. Mehta, J. For the Petitioner : Mr.Subhash Bansal, Standing Counsel with Mr.Shashwat Bansal, Adv For the Respondent : Mr.S.S. Gandhi, Sr,. Advocate (Amicus Curiae) Ms.Kusum Dhalla, APP for State JUDGMENT I.S. Mehta, J. 1. The petitioner-Narcotics Control Bureau (hereinafter referred as NCB) has preferred the instant petition under Sections 482 Cr.P.C. for setting aside the impugned order dated 15.07.2015 passed by the learned Special Judge, NDPS/N. Delhi in the case titled as NCB vs. Unknown Person. Further the petitioner also seeks for confiscation and disposal of the case property, i.e. seized property:- 45gm Cocaine, 555gm Heroin and 320gm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or confiscated article are to be disposed of under Section 63 (2) of NDPS Act. 6. The learned standing counsel for the petitioner has submitted that whenever any article/thing or drug is seized under the NDPS Act, it is to be confiscated. He further submits that the statutory provisions under Section 63 of the NDPS Act cannot be ignored and there is no lapse anywhere except to destroy the property seized after the trial is over. It was further pointed out that under Section 63 sub-Clause (2) of NDPS Act where the person who committed the offence is not known or cannot be found the Court may enquire into and decide such liability and may order confiscation accordingly and it is the duty of the Court to look into its liability and proceed the matter as per law. 7. The learned standing counsel has submitted that while adopting the NDPS Act, the legislature has also formulated the procedure for destroying the narcotic substances under Section 52A of NDPS Act by adopting notification procedure so laid down in said Section of the NDPS Act. It is further submitted that Section 52A sub-clause(2) of NDPS Act is the procedure wherein the narcotics drugs substance recovered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging material as per the procedure prescribed under the NDPS Act and the rules pertaining to disposal have already been framed by the Government of India by notification dated 16.01.2015 and the lower Court below has passed the wrong order which is liable to be set aside. 12. On the contrary the learned Amicus Curiae points out that Section 43 of NDPS Act deals with power of seizure and arrest in public place. The purpose of Section 52A of NDPS Act is to avoid pilferage of article seized as there is scarcity of storage, to collect the evidence, and thereafter destroy the articles as prescribed by the Central Government by keeping the primary evidence/seized document, i.e. Panchanama and complete sample which, become primary evidence and can be used in future if accused is arrested. The articles may and may not be exclusively narcotics but could be the goods attached or which are coming with narcotics. 13. The learned Amicus Curiae has further submitted that in the event of non-identity of the persons involved and the narcotics has been recovered from different places at the relevant point of time and subsequent period, in that situation, the provisions of Section 52A of NDP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure of the narcotic drug, psychotropic substance or controlled substance:- i. Narcotic drug, psychotropic substance or controlled substance seized from a person. ii. Narcotic drug, psychotropic substance or controlled substance seized from a public place and the offender is not known or is likely to be not known in the near future. 17. The narcotic drug, psychotropic substance or controlled substance, etc which is seized from a person or from a public place is dealt under Sections 41/42/43/44 of NDPS Act and the procedure for its disposal is dealt under Sections 52/52A of NDPS Act. Whereas, confiscation of the narcotic drug, psychotropic substance or controlled substance, etc is dealt under Sections 60/61/62/63 of NDPS Act. 18. Sub clause (2) of Section 63 of NDPS Act specifically states where any article or thing seized under this Act appears to be liable to confiscation under Section 60 or Section 61 or Section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the Court may inquire into and decide such liability, and may order confiscation accordingly . 19. Therefore, there are two ways formulated for dest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GT Karnal Road, Ist Floor, Derawala Nagar, Delhi-110009 viii. Khekota, D-56 Arjun Nagar, New Delhi-110029 ix. Chika Okoli, Sec-10, H No. 327, Dwarka, New Delhi-110075 and the addresses of the addressee are:- i. Antonio Remirez Riera, C/Perez Galdos No. 36 Escalerad Aticob 07006 Palma De Mallorca Baleares, Spain. ii. Mr. Anderson Moutrase, Zip Gola-216227-741-130-946, South Africa. iii. Mr. Anderson Moutrase, Zip Gola-216227-741-130-946, South Africa. iv. Rahul Lopez Cancho Caddle De Italia 33 4G 28943, Fuenlebrade Madrid Espoana, Tel-634107960. v. J Fransten Sandbygardsvej, 232, Sal 2450, Bronshoj Denmark. vi. David Aigetu, 102, Jerragle Hill, Ph-II, Rugby Road, Johannesburg, South Africa. vii. John Douglas, 10938 Ensbouigs Drive, Houston Taxes, 77099- 4706(USA). viii. Dr. Gordon Smith, 10938 end strook drive, Houston Taxes, 77099-4706(USA). ix. Gillyote Awrinsw, 6/130 Redfe-Edfern, NAW-20, Australia. and the whereabouts of such accused persons are a matter of investigation. 23. Once it comes on the record that the aforesaid accused persons have booked the seized parcels/packet the onus lies on the respondent/NCB to prove under Section 108 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were recorded u/Sec. 67 of NDPS Act. The samples were also sent to CRCL which gave positive results for Heroin. Despite efforts, whereabouts of the person who booked said parcels could not be traced. It is also submitted that there is no possibility of any information / clue to be received in near future. In view of the submissions made and the fact that the person who had allegedly booked the parcel is not traceable. Permission is granted to confiscate and dispose off the case property being a contraband along-with seized articles and packaging material as per the procedure prescribed under the Act. The report be submitted to the court thereafter. sd/- Sanjiv Jain Spl. JUDGE NDPS New Delhi 16.5.11 xxxx xxxx xxxx xxxx NCB vs. Unknown person MA-1/12 5/9/2013 Present: Sh.Subhash Bansal, Ld. SPP for NCB. IO Azad Singh Today it is submitted by the IO present that the earlier IO of this case Jai Bhagwan, as per record had not recorded the statement of any employee of the courier company so as to ascertain from where had the parcel been booked with the courier company. At this stage Ld. SPP for NCB states that the only prayer being made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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