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2024 (12) TMI 1232
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....inal issue on the interpretation of Section 52A of the said Act is likely to have wide repercussions, we deem it proper to delve into the same in little greater depth. 3. PREFATORY FACTS : (i) As per the case of the prosecution, on 24.02.2022 an information was received by a Junior Intelligence Officer - Shri Sunil Kumar of the Appellant-Bureau with regard to a parcel bearing AWB No. 7702909491 lying with DHL Express, Raman Road, Kirti Nagar, New Delhi, suspected to contain psychotropic substances. On the basis the said information, a team of the Appellant-Bureau along with the supervisor- Mr. Ankur Singh as an independent witness reached DHL office at about 3.40 p.m. on 24.02.2022. The suspected parcel was opened, and it was found to have contained 11 lace rolls and 3 pieces of clothes. On opening one lace roll, it was found to have contained 120 strips of Tramadol tablets and each strip had 10 tablets. The remaining lace rolls were also opened and a total of 13200 strips of Tramadol tablets were found. The spot Panchnama was prepared and the suspected contraband was seized and sealed in presence of independent witness and deposited in the Malkhana on the very day i.e.....
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....ded the Bail application, confining itself to the issue whether the application under Section 52A was made within reasonable time and the effect of delay, if any. 5. We have heard learned Solicitor General of India, Mr. Tushar Mehta and Mr. Akshay Bhandari, learned counsel appearing for the Respondent at length on the interpretation of Section 52A of the said Act. OBJECTS OF NDPS ACT : - 6. At the outset, it may be noted that prior to the enactment of NDPS Act, 1985 the statutory control over narcotic drugs was exercised in India through number of Central and State enactments like the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930. With the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level, many deficiencies in the said enactments were noticed by the Parliament, which led to enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic substances i.e. NDPS Act, 1985. The said Act was enacted in 1985 mainly to consolidate and amend the laws relating to narcotic drugs, and to make stringent provisions for the control and regulation of operations relating to narcotic d....
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.... in mind the object and purpose of the NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and Preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral substance(s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted" COMPLIANCE OF THE MANDATE UNDER SECTION 37 : 8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the a....
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....e Special Court, and curiously the High Court without considering as to whether the twin conditions mentioned in clause (b) sub-section (1) of Section 37 were fulfilled or not, concluded without any material on record that Section 37 was not attracted as there was non-compliance of Section 52A of the said Act within reasonable time. The Appellant - NCB having opposed the bail application, it was obligatory on the part of the High Court to record a satisfaction on the cumulative conditions namely, that there were reasonable grounds for believing that the Respondent - Accused was not guilty of the alleged offences and that he was not likely to commit any offence while on bail, as contemplated in Section 37(1)(b) of the said Act. The non-recording of such satisfaction which is mandatory in nature, has rendered the impugned order of High Court fallacious and untenable. However, since the High Court has released the respondent-accused on bail solely on the ground that there was non-compliance of Section 52A of the said Act within reasonable time, let us consider the scope and ambit as also the repercussions of non-compliance or belated compliance of the said provision. 12. Section 52....
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....vidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence." POSITION PRIOR TO INSERTION OF SECTION 52A : - 13. It may be noted that though the NDPS Act came into force on 14.11.1985, Section 52A was inserted by the Act 2 of 1989, which came into force with effect from 29.05.1989. For the purpose of proper interpretation of Section 52A, it would be beneficial to peep into its historical background, and the position with regard to the search, seizure, drawing of sample, etc. prevailing prior to the insertion of Section 52A. Prior to insertion of Section 52A in the Act, the Central Government in exercise of the powers under Section 4(3) of the NDPS Act vide notification dated 17.03.1986, had constituted the Narcotics Control Bureau (NCB) conferring upon it the powers and functions of Central Government for taking measures in respect of matters contained in ....
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.... the Customs Act, 1962 and/or 451 of Cr.P.C. While obtaining the order of the court under the aforesaid section it is necessary that specific order in respect of the remnant sample/ duplicate sample is also obtained. After such order has been obtained, the drug or substance along with the samples including remnants shall be disposed of in the manner prescribed. Please acknowledge the receipt of the standing order." 14. Thereafter, recognizing the importance of dispatch, transit, receipt, safe custody, storage, proper accounting and disposal destruction of the seized/confiscated drugs and the need for evolving a uniform procedure, the NCB issued the Standing Order No. 2 of 88 vide the Notification dated 11.04.1988. The NCB vide the said Standing Order formulated the procedure to be followed by all the Central and State drug law enforcement agencies for seizure, sampling, storage etc. It was mentioned in clause 3.1 thereof that "all drugs should be properly classified, carefully weighed and sampled on the spot of seizure." The clause 3.2 thereof stated that "the procedures set out in Standing Order No.1 of 88 should be scrupulously followed". The clause 5.2 directed the r....
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....ng recourse to the provisions of subsection (2) of Section 52A of the Act. The relevant part of the Standing Order No. 1/89 reads as under: - "SECTION II - GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC. 3.1. Preparation of inventory After sampling, a detailed inventory of such packages/containers shall be prepared for enclosure with the panchnama. Original wrappers shall also be preserved for evidentiary purposes. SECTION III - RECEIPT OF DRUGS IN GODOWNS AND PROCEDURE 3.2. Custody of drugs in godowns - storage procedure All drugs shall invariably be stored in safes and vaults provided with a double-locking system. Agencies of the central and state governments may specifically designate their godowns for storage purposes. The godowns should be selected keeping in view their security angle, juxtaposition to courts, etc. 3.3. Maintenance of godown and procedure for deposit of drugs Such godowns, as a matter of rule, shall be placed under the overall supervision and charge of a gazetted officer of the respective enforcement agency, who shall exercise utmost care, circumspection and personal supervision as far as po....
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..... 4.1. Magistrate to allow application Where an application is made under sub section (2) of Section 52A of the Act, the magistrate shall, as soon as may be, allow the application. 4.2. Courts to treat documents and list of samples certified by magistrate as "primary evidence." Notwithstanding anything contained in the Indian Evidence Act, 1872 (1of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act shall treat the inventory, the photographs, or narcotic drugs or psychotropic substances and any list of samples drawn under subsection (2) ibid and certified by the magistrate, as primary evidence in respect of such offence. 4.3. Grounds to be enumerated in application. While preferring an application under section 52A to any magistrate, emphasis may be laid on "expediency of disposal". The grounds that may be highlighted may pertain to: (i) Risk of pilferage, theft and substitution; (ii) Constraints of storage and hazardous nature; (iii) High potential and vulnerability of abuse; (iv) High temptations to traffickers; (v) Dimin....
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.... narcotic drugs and psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and other relevant considerations. Apart from the plain language used in the said section, its Heading also makes it clear that the said provision was inserted for the Disposal of the seized narcotic drugs and psychotropic substances. As per the well settled rule of interpretation, the Section Heading or Marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. The Section Heading constitutes an important part of the Act itself, and may be read not only as explaining the provisions of the section, but it also affords a better key to the constructions of the provisions of the section which follows than might be afforded by a mere preamble. Eastern Coalfields Limited vs. Sanjay Transport Agency and Another, (2009) 7 SCC 345. 21. The insertion of Section 52A with the Heading "Disposal of seized narcotic drugs and psychotropic substances" along with the insertion of the words "to provide for the forfeiture of property derived from or used in, i....
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....es that an application made under sub-section (2), should be allowed by the Magistrate as soon as may be, and sub-section (4) thereof states that such inventory, photographs and the list of samples so drawn, if any, under sub-section (2) and certified by the Magistrate shall be treated as the primary evidence in respect of the offence under the Act. 23. As demonstrated above, sub-section (2) of Section 52A specifies the procedure as contemplated in sub-section (1) thereof, for the disposal of the seized contraband or controlled narcotic drugs and psychotropic substances. Any deviation or delay in making the application under subsection (2) by the concerned officer to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality which would nullify or vitiate the entire case of the prosecution. The jurisprudence as developed by the courts so far, makes clear distinction between an "irregular proceeding" and an "illegal proceeding." While an irregularity can be remedied, an illegality cannot be. An irregularity may be overlooked or corrected without affecting the outcome, whereas an illeg....
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....he evidence collected by an illegal search or seizure could not be excluded or discarded. Whether the evidence collected by an illegal search or seizure is admissible or not has been considered by this Court in a series of decisions and one of the earliest decisions is the decision of the Constitution Bench in case of Pooran Mal Vs. Director of Inspection (Investigation) New Delhi and Others (supra). It was observed therein that: "24. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure." 27. Of course, the subsequent Constitution Bench in case of State of Punjab vs. Baldev Singh (1999) 6 SCC 172, while considering the question whether the procedure laid down under Section 50 of NDPS Act is mandatory or not, has explained that the judgment in Pooran Mal case cannot be understood to have laid down the law that an illicit article seized during a search of a person on a prior information, conducted in violation of the provisions of Section 50 of the Ac....
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....re is not liable to be shut out. Search and seizure is not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restrictions imposed as reasonable measures. 5. It would be seen that the organised traffic in contraband generates deleterious effect on the national economy affecting the vitals of the economic life of the community. It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial". 29. Again, in Khet Singh vs. Union of India (supra) this Court after considering number of earlier decisions held that: "16. Law on the point is very clear that even if there is any sort of procedur....
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....rt took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention." 31. From the above decisions, the position that emerges is that this Court in catena of decisions, has approved the procedure of spot searches and seizures in compliance with the Standing Orders and the Notifications issued by the NCB and the Central Government, and upheld the convictions on being satisfied about the search and seizure made by the officers as per the provisions of the Act and being satisfied about the scientific evidence of F.S.L. reports etc. Even otherwise, in view of the law laid down by the Constitution Benches in case of Pooran Mal and in case of Baldev Singh, any procedural illegality in conducting the search and seizure by itself, would not make the en....
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....s thoroughly misplaced. In the said case, the issue of pilferage of contraband was the main issue. The Court after noticing the non-compliance of the procedure laid down in the Standing Order No. 1 of 89 dated 13.06.1989, and the possibility of the pilferage of contraband goods and their return to the market place for circulation, had appointed an amicus curiae for making a realistic review of the procedure for search, disposal or destruction of the narcotics and remedial steps that need to be taken to plug the loopholes, if any. The Court, thereafter, had raised the queries with regard to the seizure, storage, disposal/destruction and also with regard to the judicial supervision in respect of the seized narcotic drugs and psychotropic substances. The prime focal in case of Mohanlal was the disposal of seized contraband goods as contemplated in Section 52A. Though it held that the process of drawing samples has to be done in presence of and under the supervision of the Magistrate, it nowhere held that non-compliance or delayed compliance of the procedure prescribed under Section 52A (2) would vitiate the trial or would entitle the accused to be released on bail. 35. None of the ....
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....pparent purpose of the enactment, a construction may be put upon it which modifies the meaning of the words, or even the structure of the sentence. It is equally settled legal position that where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance of the law. In Maxwell on Interpretation of Statutes, Tenth Edition at page 229, the following passage is found : - "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. ... Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used." 38. As observed by this Court in K.P. Varghese vs. Income Tax Officer, Ernakulam and Another ( 1981 ) 4 SCC 173, a statutory p....