TaxTMI 
TaxTMI 
2017 (6) TMI 923
X X X X Extracts X X X X
X X X X Extracts X X X X
....Officer NCB received an information about some parcels lying at the RLO, SRT Nagar, PO Building, New Delhi which were suspected of containing narcotic drugs. In pursuance of the said information a team was constituted which reached the abovementioned address and recovered nine parcels/packets and a recovery memo was prepared. Thereafter, the recovered parcels were tested with the field testing kit which gave positive results of cocaine, heroin and hashish respectively. The quantity of seized substances were measured, i.e. 45gm Cocaine, 555gm Heroin and 320gm Hashish, seizure report was prepared and the samples were forwarded to CRCL for examination and a report with positive result for cocaine, heroin and hashish was received from the CRCL. 3. The petitioner department/investigation officer made several efforts to trace the persons who committed the offence in connection with the seized narcotic substances but same cannot be found and on finding no possibility of any information to be received in the near future the petitioner moved an application under Section 63(2) of NDPS Act in the Court of Special Judge, NDPS/N. Delhi for confiscation and disposal of the case property along....
X X X X Extracts X X X X
X X X X Extracts X X X X
....overnment would not contravene Section 52A sub- clause (4) of NDPS Act where the goods seized required for the purposes of the evidence. 9. The learned standing counsel further submits that Sections 52 and 52A of NDPS Act does not spell out the term 'confiscation'. In Sections 52 and 52A of NDPS Act, the word 'confiscation' is not used because the trial is yet to come and it is the duty of the trial Court "to confiscate or not to confiscate" as per the legal provisions. Whereas, Section 63(2) of NDPS Act the word 'confiscation' is mentioned because the article seized is without the person and whose identity cannot be ascertained at the relevant point of time. Therefore, in the present case Section 63(2) of NDPS Act would be applicable to attract Section 482 Cr.P.C. as the petitioner has filed the same before this Court. 10. The learned standing counsel for the petitioner has submitted that the Hon'ble Supreme Court in the case Union of India vs. Mohanlal and Anothers; 2012 7 SCC 719 has not dealt with the provision of Section 63 (2) of NDPS Act. The law disclosed in the aforesaid judgment of the Apex Court is not applicable in the present case. It is fur....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... notification dated 16.01.2015 which has given the details of how it could be destroyed. The purpose of Section 52A of the NDPS Act is that if the accused is later on identified and if the accusation qua against him comes, the sample kept could be put to him and trial could begin; unless the samples are kept the accused could not be put on trial for want of evidence. 14. The learned Amicus Curiae has referred to a judgment of the Hon'ble Supreme Court in case Union of India vs. Mohanlal and Another; 2012 7 SCC 719 wherein an accused was acquitted as neither the evidence under Section 52A of NDPS Act nor the articles were kept and, therefore, no seizure in the subsequent trial could be proved. It is pointed out that if procedure under Section 52A of NDPS Act would have been followed then this acquittal could not have been taken place. Subsequently, the Hon'ble Supreme Court in such a situation has given the guidelines in the case Union of India vs. Mohanlal and Anr; 2016 3 SCC 379 wherein another judgment in the case Union of India vs. Mohanlal and Anr; 2012 7 SCC 712 was referred. The guideline has already been given in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2A of NDPS Act and; ii. under Section 63(2) of NDPS Act. 20. The whole question hinges around whether the case property in the instant petition is to be confiscated/disposed/destroyed under Section 52A of NDPS Act or under Section 63(2) of NDPS Act? 21. In the instant petition the nine seized parcels/packets were booked by the following accused persons:- i. From- Sharma Kumar, 1497 Main Bazar, Paharganj, New Delhi-110055 to Antonio Remirez Riera, C/Perez Galdos No. 36 Escalerad Aticob 07006 Palma De Mallorca Baleares, Spain. ii. From- N/A to Mr. Anderson Moutrase, Zip Gola-216227-741- 130-946, South Africa. iii. From- Neha Gupta, House No-19, Main Chowk, Outer Line, Kingsway Camp, New Delhi-110009 to Mr. Anderson Moutrase, Zip Gola-216227-741-130-946, South Africa. iv. From- Mark Lopez, WZ-13A, Main Bazar, Paharganjh, New Delhi-110055 to Rahul Lopez Cancho Caddle De Italia 33 4G 28943, Fuenlebrade Madrid Espoana, Tel-634107960. v. From- F. Last P.O. Betal Batin India to J Fransten Sandbygardsvej, 232, Sal 2450, Bronshoj Denmark. vi. From- Rev. J.I Kumar, H No. 62, Tagore Park, New Delhi to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s/packet the onus lies on the respondent/NCB to prove under Section 108 of the Indian Evidence Act, 1972 that no such person exists. 24. In such a situation the seized property becomes the case property which is required to be kept in safe custody by the respondent/NCB and could be disposed off under the guidelines laid down in the judgment of the Apex Court in the case of Union of India vs. Mohanlal and Anr; 2016 3 SCC 379 under Section 52A of NDPS Act only. 25. The mere application for confiscation and disposal of the case property under Section 63(2) of NDPS Act itself is not sufficient enough to dispose off the case property along with the seized articles and packing material in existence of the aforesaid named persons who had booked the nine seized parcels/packets containing narcotic drug, psychotropic substance or controlled substance. 26. An application under Section 63(2) of NDPS Act for confiscation and disposal of the case property deals specifically only to unclaimed seized articles where no claimant could be found either on the spot or after the investigations. 27. In such situation the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arlier IO of this case Jai Bhagwan, as per record had not recorded the statement of any employee of the courier company so as to ascertain from where had the parcel been booked with the courier company. At this stage Ld. SPP for NCB states that the only prayer being made from this Court is that the NCB be allotted to dispose of the contraband seized in the present case, in view of the notification GSR 399 (E) dated 10/5/2007, which deals with the procedure to be adopted by the Drug Disposal Committee for disposal of Narcotics Drugs and Psychotropic Substances and that the NCB is not pressing that this Court must accept as correct, the investigation carried out by the Agency. Keeping in view the said prayed made by the Ld.SPP and also taking into account the judgment passed by the Hon'ble Supreme Court recently in a case titled as Union of India vs. Mohan Lal and Anr. 2012 (SCC) 1712, wherein the Hon'ble Supreme Court has directed that the trial courts must ensure the destruction of seized drugs under the NDPS Act expeditiously, the prayer made by the Ld. SPP today stands allowed. Permission thereby is granted to NCB for the disposal of the seized drugs in the present....