The Delhi High Court set aside an order passed by a Patiala House Court where the accused was charged under NDPS Act for having illegal possession of 704 unlabelled Bupine injections.
A single bench of Justice Suresh Kumar Kait allowed and disposed of the petition against the order passed by the Magistrate and Assistant Session Judge, Patiala House Court and opined that both the orders are bad in law and deserve to be set aside.
The counsel for the petitioner argued that the petitioner has been roped in the case and made a scapegoat in the original proceedings as the case property has been planted upon the petitioner.
Specific information was received by the Inspector, Preventive Cell, Central Bureau of Narcotics, about the delivery of unlabelled Buprenorphine injections. The Inspector on site called two public persons to be witnesses after taking their oral consent and introduced himself and apprised them about the secret information received regarding illegal purchase and sale of NDPS medicines at the medical store owned by the petitioner.
Allegedly, the petitioner was searched but nothing incriminating was found on him, it was during the search of the medical store, a carton full of Bupine injections was found right next to the chair where the petitioner sits.
During the course of investigation, the respondent filed an application under Section 52A NDPS act before learned MM for disposal of seized narcotic drugs and psychotropic substances which came to be passed against the petitioner. The order was upheld by the learned ASJ/Spl. Judge, Patiala House Courts.
Petitioner’s counsel Rajiv Mohan submitted, “Upon the seizure of 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 of NDPS, who shall prepare an inventory as stipulated in the said provisions and make an application to the Magistrate.”
It was further submitted by Mohan that as per the mandate of Section 52A (2), only the officer in-charge of a police station or the officer who is empowered under Section 53 of NDPS Act can dispose of drugs under Section 52 A of NDPS Act and the counsel reiterated that the inspector who filed an application before the CMM requesting for directions to SHO to deposit the seized articles in Malkhana was allowed but he did not prepare the inventory of seized narcotics drugs and only moved an application before the Metropolitian Magistrate under Section 52A(2) of NDPS for disposal of the case property for which he has not empowered under section 52A and 53 of NDPS Act.
Mohan further submitted that notification of Ministry of Finance not only stipulates that all the drugs and psychotropic substances have to be disposed of but also identifies the officer who shall initiate action for disposal and the procedure to be followed for such disposal, were not complied with.
Satish Aggarwal, the counsel for the respondent, in reply, submitted that the notification referred was meant for disposal of seized NDPS and not for the impugned certification purposes.
“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 of the panchnama with reference to the articles/goods produced before it,” he said.
The court while agreeing to the contentions of the petitioner held that the officer who submitted the application was neither an officer in-charge of Police Station/SHO nor he is empowered under Section 53 of the NDPS Act and thus contrary to the said notification of Ministry of Finance (Department of Revenue), Government of India.
It was further held, “All such application that is still pending before the Courts at the level of the trial court, appellate court or before the Hon’ble Supreme Court, in all such cases the heads of the Department concerned shall ensure that appropriate applications are moved by the officers competent to do so under the said Notification 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.”11.12.2020-Article