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2016 (11) TMI 1258

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..... on No. DL 13CA 1800 forthwith before the trial court, failing which the trial court will proceed further in accordance with law - petition allowed - decided against respondent assessee. - CRL. M.C. 5320/2013 & CRL.M.A. No. 19204/2013 - - - Dated:- 22-11-2016 - I. S. Mehta, J. For the Petitioner : Mr. Amish Aggarwala and Mr. Satish Aggarwala, Advocates For the Respondent : Mr. S. S. Das, Advocate ORDER I. S. Mehta, J. 1. Instant petition is arising out of the impugned order passed by the learned Special Judge, NDPS cases, Saket, New Delhi, dated 12.12.2013 qua against the present petitioner, i.e., Directorate of Revenue Intelligence( DRI), who preferred to file the present petition under Section 482 of the Code of Criminal Procedure for setting aside/quashing of the aforesaid impugned order. 2. The brief facts stated are that, on the basis of the secret information, the petitioner's, i.e., Directorate of Revenue Intelligence(DRI), officers had effected a seizure of 272.800 Kg of contraband substance from a three wheeler luggage carrier bearing registration No. DL 1LN 7074 which was driven by one Bablu Ram and co-passenger Anil Kumar. The said seized .....

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..... shall furnish a superdaginama in the sum of Rs Ten lacs to the satisfaction of this court; 2. that he will not change the colour etc. of the above vehicle and will also not sell, transfer, above said vehicle without the prior permission of this court; 3. that he will produce the above said vehicle as and when directed by this court. 6. Aggrieved from the aforesaid impugned order dated 12.12.2013, the petitioner has preferred this petition seeking setting aside/quashing of the impugned order dated 12.12.2013. Hence the present petition. 7. The learned counsel for the petitioner has submitted that the order passed by the learned Special Judge, NDPS cases, Saket, New Delhi, is bad in law as well as on facts. The learned Special Judge had no jurisdiction to entertain and dispose of the application and the order of release of the vehicle is without jurisdiction. 8. The learned counsel for the petitioner has further submitted that the learned Special Judge failed to appreciate that the vehicle had been used for storage of contraband substances and has, therefore, been seized as per the provisions of the NDPS Act, 1985. The NDPS Act being a special Act overrides .....

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..... Lal vs. State, NCT of Delhi[Delhi], Delhi 2002 (1) JCC 444. 4) Gurbinder Singh @ Shinder vs. State of Punjab, CRR No. 1765/2015. 13. The whole dispute hinges around whether, the effected 951.350 Kg of contraband substance from the vehicle make Toyota Fortuner bearing registration No. DL 13CA 1800 pursuant to the disclosure made by Manu Khosla does cover under the NDPS Act, 1985? The answer obviously is YES. 14. In the year 1961, a single convention on narcotic drugs was adopted by member countries. The Single Convention, adopted in 1961, consolidated those treaties and broadened their scope to include cannabis and drugs whose effects are similar to those of the drugs specified, however, India opposed to it. 15. India, prior to 1985 exercised the statutory control over narcotic drugs under The Opium Act, 1857 and The Dangerous Drugs Act, 1930. 16. The Single Convention unambiguously condemns drug addiction, however, stating that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind which ultimately compelled the Indian government to introduce the Narcotic Drugs and Psychotropic Subs .....

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..... hief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term property includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. 457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or .....

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..... ific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.] 21. Further Section 60 of the NDPS Act deals with its liablity of illicit drugs, substances, plants, articles and conveyances to confiscation. Sub-section (3) of Section 60 of the NDPS Act specifically emphasis that any anima .....

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..... y by S.O. 49(E), dated 8th January, 1993, S.O. 39(E) dated 12th January, 1996, S.O. 475(E), dated 11th June, 2003, G.S.R. 621(E), dated 1st August, 2003 and G.S.R. 1(E), dated 2nd January, 2004. 24. The Court below while dealing with the instant case went wrong on the point that, no offence under the NDPS Act was made out, for want of inclusion of Ketamine Hydrochloride in the Schedule of the NDPS Rules, 1985. The notification of the Department of Revenue of the Ministry of Finance with its Notification No.S.0.311.(E) dated 10.02.2011 declared Ketamine Hydrochloride to be a part of the schedule of the NDPS Act, thereby declaring it to be a psychotropic substance. Reliance is placed on the judgment of the Apex Court in the case reported at Union of India and Another vs. Sanjeev V. Deshpande, AIR 2014 SC 3625 and the judgment of this Court in the case reported at Directorate of Revenue Intelligence vs. Anil Kumar,2014 (4) JCC 202. 25. The decisions relied upon by the learned counsel for the respondent are of no help to the respondent in view of the facts and circumstances of the case and for the reason that the NDPS Act is a special law and the offence committed under the sai .....

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