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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 ..... 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. - CRL.M.C. 1490/2020& CRL.M.A. 7224/2020 - - - Dated:- 6-6-2020 - HON'BLE MS. JUSTICE ANU MALHOTRA Applicant Through: Mr. Satish Aggarwala, Sr. Standing Counsel with Mr. Gagan Vaswani, Advocate. Respondent Through: Mr. Pushpender Kumar, Advocate for R- 1 to 4. (DHCLSC) Mr. Anju Lata, Advocate for R-5 to 7. O R D E R CRL.M.C. 1490/2020 CRL.M.A. 7224/2020 In view of the appearance on behalf of the respondent nos. 1 to 4 by the learned counsel Mr. Pushpender Kumar, Advocate, the matter has been taken up qua the petition CRL.M.C. 1490/2020, vide which the prayers made by the petitioner, the Air Customs are to the effect:- (i) Set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable. Copy of this order be sent to the facilitation centre for onward transmission to Ld. counsel for the applicant through email. File be consigned to the record room after necessary compliance. , and thus, had dismissed the application that had been filed on behalf of the Air Customs under Section 52 A of the NDPS Act, 1985 for collection of samples observing to the effect that the said application is not maintainable before the said learned Court and that the proceedings are to be conducted by the Executive Magistrate and the application was dismissed as being not maintainable. Submissions have been made on behalf of either side. Inter alia reliance is placed on behalf of the petitioner/Air Customs on the verdict of this Court in W.P.(Crl.) No.556/2014 titled as Department of Customs Vs. M/s. Siddhant Enterprises and Another , order dated 27.08.2014; verdict of the Hon ble Supreme Court in Special Leave to Appeal (Crl.) No.10280/2015 in Department of Customs Vs. M/s. Siddhant Enterprises and Another , order dated 27.10.2017; verdict of this Court in CRL.M.C. No.526/2013 titled as Directorate of Revenue Intelligence, N.D. Vs. State of NCT o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to in Sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) . (4) .. , making it apparent thus, that such an application under Section 52A(2) of the NDPS Act, 1985 would certainly be maintainable before a Judicial Magistrate. It is essential also to observe that in view of the verdict of the Hon'ble Supreme Court in Noor Aga V. State of Punjaband Ors. (2008) 16 SCC 417 vide paragraph 129 thereof, it has been observed to the effect: 129. The question which arises for our consideration is as to whether it is permissible to do so. Evidently it is not. Firstly because taking recourse to the purported general practice adopted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered Under Section 53, the officer referred to in Sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in Sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction. 14. Mr. Sinha, learned Amicus, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate is maintainable. In the circumstances, 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, which reads to the effect: 52A: Disposal of seized narcotic drugs and psychotropic substances.- (1) ........ (2) ....... (3) ........ ( 4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence]. , which thus 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. In the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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