Full Text
ROHIT ..... Petitioner
Through Mr. Rajiv Mohan with Mr. Abhimanyu Kampani, Mr. Swapnil Krishna and Mr. Nishant Madan, Advs.
Through Mr. Satish Aggarwala, Sr. SPP with Mr. Gagan Vaswani, Adv.
JUDGMENT
1. Vide the present petition, petitioner has filed present petition under section 482 Cr.P.C. and prays as under: a. set aside of impugned order dated 09.07.2020 passed by learned MM (New Delhi), Patiala House Courts, Delhi in the case F.No.P&I/DDEL/SEIZURE/01/2020 for the offences punishable under section 8/21/22/28/29/30 of NDPS Act; b. stay the operation of order dated 09.07.2020 or any proceedings 2020:DHC:3554 emanating therefrom till disposal of the present petition.
2. The facts leading to the filing of this petition are as follows: a. A specific information was received jointly by Sh.D.S. Singh Superintendent (Prev.) and Sh.Praveen Dhull, Inspector, Preventive Cell, Central Bureau of Narcotics on 14.01.2020 at 10:00 hrs. that M/s Moksh Meditech, Basement Floor, CW-252, Sanjay Gandhi Transport Nagar, New Delhi is about to deliver unlabelled Buprenorphine Injections and different type of Narcotics and Psychotropic Substance who used to sell these medicines. b. The informer stressed that huge quantity of illegal medicines containing NDPS and unlabelled Buprenorphine can be recovered on search of primes. The said information was recorded in CBN-1 and intimated to Asstt. Narcotics Commissioner, Central Bureau of Narcotics, Gwalior. Accordingly, Sh.Praveen Dhull, Inspector was directed by the said D.S.Singh, Superintendent (Prev.) to constitute a preventive party and take necessary action immediately. The team of CBN officers was constituted and reached at Sanjay Gandhi Transport Nagar by a Government vehicle No.HR 26 BN 2410 around 14:00 hrs. on 14.01.2020. c. On reaching at Sanjay 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 witnesses entered the shop, Sh. Praveen Dhull asked the petitioner to produce the document of the shop, accordingly, the petitioner produced Drug License in FORM-20B, DL-BAD-125546, Form 21-B DL-BAD-125547, GST registration No.GSTIN07BUJPK- 5342, 1z[8], some purchase bills and other documents. d. In the presence of the petitioner, two independent witnesses, the search of M/s. Moksh Meditech was conducted as per law. During search, NDPS medicines were recovered from the shop, the detailed list of recovered NDPS medicines were prepared. Further, during search, a carton was found by the side of the chair on which petitioner was seating and on opening the same, several small boxes were found placed therein. These small boxes were found to contain the unlabelled ampoules, it was seen that the recovered ampoules contain water like transparent liquid, these 10-15 ampoules were found kept in small plastic zipper polythene, such 2-3 polythenes were kept inside each small box, there were 27 small boxed kept inside the room. Bupine injection was written in the box with declaration as Buprenorphine, manufactured by Ms. Radiant Parenterals Ltd. on counting, all 27 boxes contained a total of 704 unlabelled injections of 2 ml each. Thereafter, the petitioner was arrested by the Control Bureau of Narcotics on 15.01.2020, for the alleged offences under sections 8/21/22/28/29/30 of NDPS Act. e. 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. Accordingly, an order dated 09.07.2020 came to be passed against the petitioner who not even done anything wrong and has been made scapegoat in the original proceedings as the case property has been planted upon the petitioner. f. Being aggrieved, the petitioner filed a revision petition against the impugned order dated 09.07.2020, however, learned ASJ/Spl. Judge, NDPS, Patiala House Courts, was pleased to dismiss the same vide order dated 02.09.2020.
3. Hence the present petition has been filed.
4. Mr.Rajiv Mohan, learned counsel appearing on behalf of petitioner has submitted that as per Section 52 A (2) of NDPS Act, 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.
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 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. It is reiterated that Insp. Manoj Narwal is neither the officer in charge of a police station/SHO nor he is empowered under Section 53 of NDPS Act for disposal of drugs under Section 52A of NDPS Act. Further, Insp. Manoj Narwal is not the officer who prepared the alleged list of the recovered items, list of recovered documents, panchnama, or draws the sample, or seized the alleged drugs.
7. It is submitted that as per the Notification No. G.S.R. 339(E) dated 10.05.2007 of Ministry of Finance (Department of Revenue) 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. The directions contained in the Notification issued by the Ministry of Finance were not complied with. As per clause 3 and 4 of the Notification No. G.S.R. 339 (E) dated 10.05.2007 issued by the Ministry of Finance, which is to the following effect: “3. Officers who can dispose of drugs: Any officer incharge of a police station or any officer empowered under section 53 of the Act can dispose of drugs under Section 52A of the Act.
4. Manner of Disposal: (1) Where any Narcotic drug or psychotropic substances has been seized and forwarded to the officer in-charge of the nearest police station or to the officer empowered under section 53 of the Act, or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs or psychotropic substance as per Annexure 1 to this notification and apply to any Magistrate under sub-section 2 of 52(A) as per the Annexure 2 to this notification. (2) After the Magistrate allows the application under subsection 3 of Section 52 A, the officer mentioned in clause (1) above shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit the details of the—drug consignment to the Chairman of the Drug Disposal Committee for a decision by the Committee on the disposal. The office shall send a copy of the details along with the drug consignment to the officer-in charge of the godown.”
8. 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 subsection (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:
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 15.03.1988 of Narcotic Control Bureau (for short "NCB"), Delhi and Standing Order No. 1/89 dated 13.07.1989 of Government of India, Ministry of Finance (Department of Revenue). Further, Insp Manoj Narwal who did not prepared the inventory of the Seized drugs is neither an officer incharge of Police Station / SHO nor he is empowered under Section 53 of the NDPS Act nor he is the officer who prepared the alleged list of the recovered items, list of recovered documents, panchnama, or draws the sample, or seized the alleged drugs can dispose of drugs or move an application before the Magistrate for the disposal of drugs as defined under sub-section (2) of Section 52 A of NDPS Act.
11. Therefore, in these circumstances the procedure adopted by the CBN officials for drawing of samples neither conforms the procedure prescribed neither under Section 52A of NDPS Act nor under the Standing Orders. Further, Insp. Manoj Nawral who filed the application for disposal of drugs under sub-section (2) of Section 52 A NDPS Act is not an officer in-charge / SHO or an officer empowered under Section 53 of the Act nor he is the officer who prepared the alleged list of the recovered items, list of recovered documents, panchnama, or draws the sample, or seized the alleged drugs can dispose of drugs has also not confirms the procedure prescribed neither under sub-section 2 of Section 52A of NDPS Act nor under the Notification dated 10.05.2007 and 16.01.2015 of Ministry of Finance (Department of Revenue), Government of India.
12. On the other hand, Mr.Satish Aggarwal, learned Senior Standing counsel appearing on behalf of respondent has submitted that the officers of CBN have not violated the provisions of law and if there is violation of any statutory guidelines, as alleged, the effect thereof will be seen at the appropriate stage during the trial. The application was rightly submitted as per provisions of Section 52A of NDPS Act. for certification of inventory and drawl of representative samples to constitute primary evidence for the purpose of trial. Further submitted that investigating officer cannot conduct investigation in a tainted and biased manner. It is true that investigation must be fair, transparent and judicious. In the present case, the investigation was conducted in a fair, transparent and judicious manner. Shri Manoj Narwal was empowered under the Act to move 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 of the panchnama with reference to the articles/goods produced before it. Therefore, the present petition is not maintainable and is liable to be dismissed.
14. I have heard learned counsel for the parties and perused the material available on record.
15. Case of the respondent is that a specific information was received jointly by Sh.D.S. Singh Superintendent (Prev.) and Sh.Praveen Dhull, Inspector, on 14.01.2020 at 10:00 hrs. that M/s Moksh Meditech, Basement Floor, CW-252, Sanjay Gandhi Transport Nagar, New Delhi is about to deliver unlabelled Buprenorphine Injections and different type of Narcotics and Psychotropic Substance who used to sell these medicines. The said substancfe can be recovered on search of primes. The said information was recorded in CBN-1 and intimated to Asstt. Narcotics Commissioner, Central Bureau of Narcotics, Gwalior. Thereafter, Sh.Praveen Dhull, Inspector was directed by the said D.S.Singh, Superintendent (Prev.) to constitute a preventive party and search the petitioner and premises as well. However, nothing incriminating recovered from the petitioner but recovered the substance covered under NDPS Act. Thus, Insp.Praveen Dhull prepared a list of the recovered items, list of recovered documents, panchnama, drawing of the sample, sealing, seizure who thereafter forwarded all these alleged recovered documents to D.S. Singh, Superintendent (Prev.).
16. Thereafter, 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. The said application was allowed vide order dated 15.01.2020.
17. The grievance of the petitioner is that abovenamed Insp. Manoj Narwal who did not prepare the inventory of seized Narcotics Drugs only moved an application 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.
18. As per 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. Insp Manoj Narwal is neither an officer incharge 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.
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 No. 1/89 had to be done in the presence of the head of the Department whereas according to notification of 2015 in the event of excess quantity or value the disposal has to be by a high level Drug Disposal Committee to be constituted by the head of the Department. Again while Standing Order NO. 1/89 specifically required the approval of the Court for disposal, notification dated 16th January, 2015 does not stipulate such approval as a specific condition. Be that as it may, to the extent the subsequent notification prescribes a different procedure, accordingly, held that earlier notification/ Standing Order No. 1/89 to have been superseded. In order to avoid any confusion arising out of the continued presence of two notifications on the same subject we make it clear that disposal of Narcotic Drugs and Psychotropic and controlled Substances and Conveyances shall be carried out till such time the Government prescribes a different procedure for the same.
21. Further held that the cases in which the proceedings are still pending before the Courts at the level of trial court, appellate court or before the Hon’ble 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 16th January, 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.
22. Accordingly, directed 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.
23. 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 incharge of the police station nor empowered under section 53A of NDPS Act who can dispose of the drugs or nor move an application before the Magistrate for disposal of drugs as defined under sub-section 2 of section 52A of NDPS Act. Moreover, the said application was moved contrary to the notification dated 10.05.2007 and 16.01.2015 of Ministry of Finance (Department of Revenue), Government of India.
24. In view of above facts, provisions of Act and notification, I am of the considered opinion that orders passed by learned Magistrate and learned ASJ/Special Judge, NDPS, New Delhi are bad in law, thus, deserves to be set aside.
25. Accordingly, order dated 09.07.2020 passed by learned Magistrate and order dated 02.09.2020 passed by learned ASJ are hereby set aside.
26. The petition is accordingly, allowed and disposed of.
27. Pending application also stands disposed of.
28. The judgment be uploaded on the website forthwith.
JUDGE DECEMBER 11, 2020 ab