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TMI Blog2021 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings within two working days of the filing of the application by the department; (iv) Direct the Central Revenues Control Laboratory to submit its report in respect of representative samples within a week after receipt of the samples from the office of the petitioner department; (v) Extend period for one month for the detention of the respondents with effect from the date of drawl of samples by the Metropolitan Magistrate, Dwarka, New Delhi/ SDM, Vasant Vihar, New Delhi; In the alternative, direct the Additional Sessions Judge, Dwarka, New Delhi to dispose of the application of the department by 07.06.2020 as the time has extended till 10.06.2020. (vi) Any other order(s) as may be deemed fit or appropriate 'may also kindly be passed." Learned Senior Standing counsel for the petitioner presently confines the prayer that has been made through the petition and through the accompanying application CRL.M.A. 7224/2020 seeking that the impugned order dated 01.06.2020 of the learned Duty, Metropolitan Magistrate, South West District in Miscellaneous No.12823/20 be set aside, in as much as, vide the said order, the learned Duty Metropolitan Magistrate had observed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate or any person authorized by him for that purpose and that no objection would be raised in this regard by the parties concerned and that vide the said order dated 01.05.2017, the question of law raised in the special leave petition had been left open. It has also been submitted on behalf of the petitioner that in several cases, the applications under Section 52A of the NDPS Act, 1985 have been taken up by the Metropolitan Magistrate and samples have been drawn. On behalf of the respondent nos. 1 to 4 and on behalf of the respondent nos. 5 to 7 represented by their respective counsel, it is submitted that there is no opposition to the prayer made by the petitioner seeking that the impugned order dated 01.06.2020 of the learned Duty Metropolitan Magistrate be set aside and that the samples in the matter in terms of Section 52A(2) of the NDPS Act, 1985 be drawn and taken in the presence of the Metropolitan Magistrate. Apart from the factum that learned counsel for the respondent nos. 1 to 7 do not oppose the prayer made on behalf of the petitioner to this extent, it is essential to observe that Section 52A(2) of the NDPS Act, 1985 prescribes to the effect:- "Section 52A: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al would require a clear direction of the Court in terms of Section 52A of the Act. Thirdly, the High Court failed and/or neglected to consider that physical evidence being the property of the Court and being central to the trial must be treated and disposed of in strict compliance of the law." whereby it has been observed to the effect that the authority for disposal would require a clear direction of the Court in terms of Section 52(A) of the NDPS Act, 1985. Furthermore, the verdict of the Hon'ble Supreme Court in Union of India V. Mohal Lal & Ors; 2016 1 ACR 704, a verdict dated 28.1.2016 also takes into account the process of drawing of samples to be in the presence or under the supervision of a Magistrate which entire exercise has to be certified to be correct and that this is specially so when according to Section 52A (4) of the Act samples drawn and certified by the Magistrate and compliance of Sub- Section 2 and Sub-Section 3 of Section 52 A constitute the primary evidence for the purpose of the trial. It has also been laid down vide this verdict to the effect: "........12. Section 52A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotrop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Magistrate, as primary evidence in respect of such offence.] 13. It is manifest from Section 52A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered Under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by Sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions. ... ... . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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