Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 910 (AP)

Union of India v. Yella Bhaskar Rao

2022-09-15

K.SREENIVASA REDDY

body2022
JUDGMENT 1. The Criminal Petition is filed under Sec. 482 of the Code of Criminal Procedure, 1973, to quash the order dtd. 30/11/2020 passed in Crl.P.M.P.No.418 of 2019 in S.C.No.187 of 2018 on the file of the Principal Junior Civil Judge cum Judicial Magistrate of First Class Rajamahendravaram. 2. A charge sheet has been filed against the respondents for the offences punishable under Ss. 8(c) read with Ss. 20 (b)(ii)(c), 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act"). 3. Thereafter since the offences are triable by the Court of Session, the case was made over to the Court of Session Rajamahendravaram and the same is numbered as S.C.No.187 of 2018 in Cr.No.NCB F. No.48/1/3/2018/HYD/SUB-ZONE, Pending the same an application has been filed by the complainant in Crl.M.P.No.418 of 2019 in S.C.No.187 of 2018 on the file of the Principal Junior Civil Judge cum Judicial Magistrate of First Class, Rajamahendravaram to allow the application under Sub-Sec. (3) of Sec. 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 so that the seized narcotic drugs can thereafter be disposed off as per Sub-Sec. (1) of Sec. 52A of the said Act retaining the Certificate, Photographs and Samples as primary evidence as per Sub-Sec. (4) of Sec. 52A (4). By an order dtd. 30/11/2020, the Principal Junior Civil Judge cum Judicial Magistrate of First Class, Rajamahendravaram dismissed the said Crl.M.P. on the ground that the NCB officials have not filed the petition within the stipulated time and filed it after an abnormal delay of 1 1/2 years of seizing the property. In view of the same, the learned Principal Junior Civil Judge cum Judicial Magistrate of First Class observed that it creates a doubt about the seized property and it appears that the present petition is filed to cover up their lacunae. In view of the observations made by the learned Magistrate the present Criminal Petition has been filed by the Union of India through Intelligence Officer, Narcotic Drugs and to quash the said order. 4. Sec. 52 (A) of the NDPS Act reads as follows: [52A. Disposal of seized narcotic drugs and psychotropic substances. In view of the observations made by the learned Magistrate the present Criminal Petition has been filed by the Union of India through Intelligence Officer, Narcotic Drugs and to quash the said order. 4. Sec. 52 (A) of the NDPS Act reads as follows: [52A. Disposal of seized narcotic drugs and psychotropic substances. - (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, 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 drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Sec. 53, the officer referred to in sub-sec. (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 4[narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-sec. (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of 5[such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-sec. (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-sec. (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence 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 innventory, the photographs of 1[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-sec. (2) and certified by the Magistrate, as primary evidence in respect of such offence. 5. The above provision contemplates that upon seizure of the contraband, the same has to be forwarded either to the officer in charge of the nearest police station or to the officer empowered under Sec. 53 of the Act, who shall prepare an inventory as stipulated, under the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-Sec. 3 of Sec. 52 (A) requires that the Magistrate shall as soon as may be allow the application to dispose of the substance. In present case on hand, it is submitted by the counsel for the petitioner that initially the prosecution had first filed petition under Sec. 52A of the Act before the Special Court and only on its directions to approach the proper Court specified under the Act, they had approached the Court below, which fact was not noticed by the Court below, and the learned Magistrate has dismissed the same on the ground that the said application has been filed with an abnormal delay of 1 1/2 year. 6. A reading of provision under Sec. 52-A goes to show that there is absolutely no specified period to submit application before the Magistrate. It only shows that when an application has been filed by the officer concerned, the Magistrate is bound to dispose of the said application as soon as may be, as contemplated under Sub-Sec. 3 of Sec. 52 (A). Instead of disposing the same the Magistrate went to the extent of making certain observations which are contrary to the provisions in the statute. 7. Instead of disposing the same the Magistrate went to the extent of making certain observations which are contrary to the provisions in the statute. 7. This Court also perused the Circular No.2 of 2022 in Roc.No.578/SO/2016 dtd. 18/1/2022 issued by the High Court of Andhra Pradesh at Amaravati. In said Circular, all the Unit Heads, and the Jurisdictional Magistrates working under the control of the Unit Heads are directed to strictly adhere to the provisions of Sec. 52A of "the Act" in view of the directions of the Hon'ble Supreme Court in the judgment dtd. 28/1/2016 in Crl.A.No.652 of 2012 in Union of India Vs. Mohan Lal and another. 8. In view of the said observations given by the Hon'ble Apex Court, the learned Magistrate ought to have acted upon, in accordance with the order passed by the Apex Court and the Circular issued by this Court. 9. In view of the aforesaid facts and circumstances of the case, this Court has no hesitation in coming to the conclusion that the application filed by the concerned officer before the Principal Junior Civil Judge Cum Judicial Magistrate of First Class, Rajamahendravaram has to be allowed and appropriate orders have to be passed in accordance with law. Hence, the impugned order passed by the Principal Junior Civil Judge cum Judicial Magistrate of First Class, Rajamahendravaram dtd. 30/11/2020 in Crl.M.P.No.418 of 2019 is set aside. Accordingly, the Criminal Petition is allowed. 10. The learned Magistrate is further directed to dispose of the application within a period of two (02) weeks from the date of receipt of a copy of this order. Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.