TMI Blog2021 (7) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... es drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for 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. Section 52A was inserted by the Amendment Act of 1989 w.e.f. 29th May, 1989.The provision relates to the disposal of the seized narcotic drugs and psychotropic substance and Section 52A (1) provides that the Central Government may having regard to hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to their substitution, constraints of proper storage space or any other relevant consideration by notification published in the Official Gazette, specify the narcotic drugs or psychotropic substance which may as soon as after their seizure be disposed of by such officer. Thus the provision relates to disposal of the drug after the same is seized so as to rule out substitution, misuse and being hazardous. It is not unknown that applications under Section 52A NDPS Act are also filed at the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re switched off for a particular period of time. The petitioner was in fact picked up from his house and falsely implicated in this case. The manner in which recovery is sought to be made from the petitioner is highly improbable and clearly shows that the petitioner has been falsely implicated. No public witness has been associated with the recovery. There is non-compliance of Section 52-A of the NDPS Act on which ground alone the petitioner is entitled to be released on bail in terms of the decision of the Supreme Court reported as (2016) 3 SCC 379 titled as 'Union of India Vs. Mohanlal and Anr.' which decision has been followed by this Court. Reliance is also placed on the decision of the Division Bench of the Calcutta High Court in CRL.A.543/2008 Nirmal Kumar Jana Vs. State of West Bengal. 3. As regards the interim bail on medical grounds is concerned, it is contended that the petitioner is suffering from various respiratory ailments including asthma and was treated at Central Jail Hospital Mandoli for the same where he was prescribed various medications. Due to incarceration of the petitioner, wife of the petitioner has been physically and mentally affected. The wife ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the co-accused Mohan Rai Arora had arrived at the spot is commercial in nature as per the NDPS Act. Further, the petitioner has transferred a sum of ' 8 lakhs from his account to the account of co-accused Srikant Ranganathan for travelling abroad. 5 . Briefly, the case of the prosecution in the above-noted FIR is that on 14th March,2019 at about 9.45 PM a secret information was received by ASI Ashok Kumar in the office of Narcotics Cell, Crime Branch that two persons namely Arvind and Monu residing in Munirka along with their associate Srikant are indulging in supply of wholesale and retail cocaine in Delhi and they would come to supply cocaine to someone between 11.00 PM to 12.00 midnight near the office of SDM Geeta Colony and if a raid is conducted the accused can be caught with cocaine. The secret informer was produced before the then Inspector Narcotics Cell at about 10.00 PM who on inquiry informed the ACP Narcotics Cell telephonically and after reducing the information inwriting vide D.D. No. 26 at 10.20 PM the raiding party departed for the spot vide D.D. No. 27 at 10.35 PM after taking I.O. bag, field testing kit, electronic weighing scale in a private vehicle driv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PS Kotwali, Crime Branch and from there to Geeta Colony where he was falsely implicated. To claim this, the petitioner states that his mobile phone was switched off at 7.21 PM and was switched on only at around 11.00 PM whereas according to the State there are as many as 7 calls between the applicant and co-accused Mohan Rai between 7.10 PM to 11.22 PM on 14thMarch, 2019 and at 11.30 PM the applicant was present at the spot. The issue of false implication raised by the petitioner cannot be inferred in the manner petitioner desires this Court to do, as this would be a matter to be considered by the Trial Court after the prosecution has led its evidence and the material witnesses has been cross-examined on this aspect. 9 . Learned counsel for the petitioner further contended that in the road certificate initially the word heroine was noted which was cut out and cocaine was added and the D.D. entry does not note that the raiding party took along with them the field testing kit. The fact that there is cutting on the road certificate where initially word heroine was used and the field testing kit was not taken are issues which do not go to the root of the matter warranting grant of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs and psychotropic substances. -(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to 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 orpsychotropic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for 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. 18 . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs are still pending before the Courts at the level of trial court, appellate court or before the Supreme Court: In such cases the heads of the department concerned shall ensure that appropriate applications are moved by the officers competent to do so under Notification dated 16-1-2015 before the Drugs Disposal Committees concerned and steps for disposal of such narcotic drugs and psychotropic and controlled substances and conveyances taken without any further loss of time. 31.1. 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 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, 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 15 to 19 of this order. 11. As noted by the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... psychotropic substance which may as soon as after their seizure be disposed of by such officer. Thus the provision relates to disposal of the drug after the same is seized so as to rule out substitution, misuse and being hazardous. It is not unknown that applications under Section 52A NDPS Act are also filed at the stage of appeal seeking permission of the Court to dispose of the narcotic drugs and psychotropic substance. The procedure prescribed under Section 52A NDPS Act and as ordained by Supreme Court in Mohan Lal (supra) is required to be mandatorily followed however, the issue in the present case is whether non-compliance of this procedure which is applicable for disposal of the narcotic drugs and psychotropic substances would vitiate the trial in case immediately on seizure samples are drawn in the absence of a Magistrate even before they are deposited in the malkhana for being sent to FSL to seek a report as to the nature of the contraband for the purposes of filing the charge-sheet. The decision in Mohan Lal (supra) does not canvas that the procedure followed by the investigating agencies like the Directorate of Revenue Intelligence which takes samples on the spot resulte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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