TMI Blog2020 (12) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... he officer who is empowered under Section 53 of NDPS Act can dispose of drugs under Section 52 A of NDPS Act. Insp Manoj Narwal is neither an officer in charge of Police Station / SHO nor he is empowered under Section 53 of the NDPS Act. Moreover, the said Insp. is not an officer who prepared the alleged list of the recovered items, list of recovered documents, panchnama, or draws the sample, or seized the alleged drugs - It is pertinent to mention here that as per para 4 of the Notification No. G.S.R. 38(E) dated 16.01.2015, in suppression of the earlier Notification G.S.R. 339(E) dated 10.05.2007 inter-alia provides that officer in charge of the police station shall within 30 days from the date of the receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52(A)(2) in terms of Annexure 2 to the said notification. As per the prosecution case, Insp. Praveen Dhull prepared a list of recovered articles, documents, Panchnama, etc. but not by Insp.Manoj Narawal, thus, the said Manoj Narawal is neither officer in charge of the police station nor empowered under section 53A of NDPS Act who can dispose of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njay Gandhi Transport Nagar, Sh.Praveen called two public persons who were passing through and introduced himself and other team members had apprised them about the secret information received regarding illegal purchase and sale of NDPS medicines by a shop namely M/s Moksh Meditech and requested them to be present as independent witness during the search and other legal proceedings. Both of them gave oral consent and thereafter, the Preventive Team along with the independent witnesses reached at M/s Moksh Meditech, Basement. The proprietor of the same namely Rohit (petitioner herein) was found present. Praveen, Inspector informed the petitioner about the information received by the department and informed that the search is to be made accordingly. Also informed the petitioner that he has the right under section 50 of NDPS, that he may be searched before the Competent Gazetted Officer or Magistrate nearest available. Before the search proceedings, the above team members tendered their personal search to the petitioner in the presence of independent witnesses. During the search, nothing incriminating was found from the officials. Therefore, that team along with the independent witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all prepare an inventory as stipulated in the said provisions and make an application to the Magistrate. 5. In the present case, it is alleged that the contraband has been searched from the business premise of M/s Moksh Meditech, CW-252, Basement Floor, Sanjay Gandhi Transport Nagar. Thereafter, the list of the recovered items, list of recovered documents, panchnama, drawing of the sample, sealing, seizure was made by Insp. Praveen Dhull who thereafter forwarded all these alleged recovered documents to D.S. Singh, Superintendent (Prev.), Preventive and Intelligence Cell, Central Bureau of Narcotics. Further, Insp. Manoj Narwal filed an application before Ld. CMM requesting for directions to SHO Hari Nagar to deposit the seized articles in Malkhana of PS Hari Nagar, whereby Ld CMM had allowed the said application vide order dated 15.01.2020. Thereafter Insp. Manoj Narwal who did not prepare the inventory of seized Narcotics Drugs only moved an application before the Ld. Metropolitan Magistrate under Sub-Section 2 of Section 52A of NDPS for disposal of the case property for which he was not empowered under Section 52A and 53 of NDPS Act. 6. Further submitted that as per the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 4 of the Notification No. G.S.R. 38(E) dated 16.01.2015, in suppression of the earlier Notification G.S.R. 339(E) dated 10.05.2007 inter-alia provides that officer in charge of the police station shall within 30 days from the date of the receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52(A)(2) in terms of Annexure 2 to the said notification. Sub Para (2) of Para 4 that after the Magistrate allows the application under sub-section (3) of Section 52A, the officer mentioned in sub-para (1) of Para 4 shall preserve the certified inventory, photographs and samples drawn in the presence of Magistrate as primary evidence for the case and submit details of seized items to the Chairman of the Drugs Disposal Committee for a decision by the Committee in the question of Disposal. 9. To strengthen his arguments, learned counsel for the petitioner has relied upon the case of Union of India vs. Mohanlal Anrs.: (2016) 3 SCC 379, wherein the Hon ble Supreme Court has held as under: 19. There are two other aspects that need to be noted at this stage. The first is that notification dated 16th January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial, appeal, revision and further appeals, if any, before 29th May, 1989 the continued storage of drugs and Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is of no consequence not only because of the considerable lapse of time since the conclusion of the proceedings but also because the process of certification and disposal after verification and testing may be an idle formality. We say so because even if upon verification and further testing of the seized contraband in such already concluded cases it is found that the same is either replaced, stolen or pilferaged, it will be difficult if not impossible to fix the responsibility for such theft, replacement or pilferage at this distant point in time. That apart, the storage facility available with the States, in whatever satisfactory or unsatisfactory conditions the same exist, are reported to be over-flowing with seized contraband goods. It would, therefore, be just and proper to direct that the Drugs Disposal Committees of the States and the Central agencies shall take stock of all such seized contrabands and take steps for their disposal without any further verification, testing or sampling whatso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled Substances and Conveyances taken without any further loss of time. 20. To sum up we direct as under: No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading seizure and sampling‟. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order. 10. Mr. Mohan submitted that in the present case neither the Seizure, panchnama, list of document, list of recovered items was prepared at the spot and the same were brought to the office of CBN at Janakpuri by a tempo, where the list of the recovered items, recovered documents and the panchnama was prepared by Insp. Praveen Dhull which is again contrary to the Standing Instruction 1/88 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application under section 52A of NDPS Act, 1985. The said officer is of the rank of Inspector and he is duly empowered under section 53 of the NDPS Act and vide S.O.823(E) dated 14.11.1985 issued in Gazette of India. Accordingly, he had moved an application in exercise of his power conferred upon him under section 53 of the Act. 13. Mr. Aggarwal submitted that the appellant has referred notification meant for disposal of seized NDPS and not for the impugned certification purposes. That too, the referred notification has already been superseded vide GSR38(E) dated 16.01.2015 published in Gazette of India. Therefore, the judgments cited by the petitioner do not apply to the facts and circumstances of the present matter. The petitioner cannot travel beyond his Revision Petition filed in the Sessions Court. It is reiterated that the petitioner cannot be allowed to go beyond the scope of application under Section 52A of NDPS Act. It is further reiterated that while dealing with an application under Section 52A of NDPS Act, the Magistrate does not hold the trial and is not supposed to go into the merits and demerits of the case. The Magistrate has only to certify the correctness o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panchnama, or draws the sample, or seized the alleged drugs. 19. It is pertinent to mention here that as per para 4 of the Notification No. G.S.R. 38(E) dated 16.01.2015, in suppression of the earlier Notification G.S.R. 339(E) dated 10.05.2007 inter-alia provides that officer in charge of the police station shall within 30 days from the date of the receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52(A)(2) in terms of Annexure 2 to the said notification. Sub Para (2) of Para 4 that after the Magistrate allows the application under sub-section (3) of Section 52A, the officer mentioned in sub-para (1) of Para 4 shall preserve the certified inventory, photographs and samples drawn in the presence of Magistrate as primary evidence for the case and submit details of seized items to the Chairman of the Drugs Disposal Committee for a decision by the Committee in the question of Disposal. 20. In the case of Mohanlal (supra), it is held that in both the notifications are prescribed the limits upto which the disposal could be directed. In case of excess quantity the disposal under the Standing Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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