NAFE SINGH & ORS VS NARCOTICS CONTROL BUREAU 2022, 2456 Del

FACTS OF THE CASE

The petitioner under section 482 of IPC tried to seek impugned order by Ld. Special Judge (NDPS), Patiala House New Delhi, but the special judge rejected the submissions of the petitioner from discharge and proceeded with the charge against them under section 22/23, 28,29 of Narcotics Drugs and Psychotropic Substance Act 1985.

The Narcotic Central Bureau (NCB) received information on 05.05.2008, that a group of people smuggling illicit drugs listed in schedule I of the NDPS Act, under section 41(2), the search authorization were issued and 4:20 PM NCB (respondent) started their searching and at 4:30 two person Rajesh Sharma and Nafe Singh at Indraprastha post office, New Delhi intercepted. In the search, NCB found 100 envelopes from petitioners (around 10,260 tablets of Alprazolam, Diazepam, and Phenobarbitone (Phenobarbital)).

Under section 67 of the NDPS Act, the voluntary statement of all accused was recorded on 06.05.2008, later petitioners were sent to judicial custody after being produced before the learned Special Judge (NDPS).

No adulteration and misbranding were found after the sample of the tablets was sent to the Central Forensic Science Laboratory, Hyderabad (CFSL).

The writ petition was filed by the petitioner side on 06.05.2009. the division bench of this court accepted the petition and set aside the order of detention and others also allowed and said that drugs listed in Schedule of the NDPS Act are neither prohibited nor punishable under NDPS Act only psychotropic substances listed in Schedule I of NDPS Act are, So the writ petition was allowed. But on 10.05.2011 charges around him were framed.

ISSUES

1. The applicability of Section 36A of the NDPS Act of 1985?
2. The recorded statement of the petitioner would be permissible to the court or not?
3. Jurisdiction of the Special Court in this case?

ARGUMENTS

Arguments from Petitioner’s side:

On the behalf of petitioner side Shri K.T.S Tulsi and Shri Hariharan, learned Senior Counsel, and Shri Amit Anand Tiwari, appeared-

1. Section 36A(1)(d) of the NDPS Act does not permit two ways to start legal proceedings it states that proceedings either be based on a police report following the procedure for cases that need an arrest warrant or based on a complaint made by a government official authorized to do so under in the terms of procedure describe in chapter XIX of the CrPC.
2. Section 36A(1)(c) of the NDPS Act granted the power to a special court to exercise the magistrate’s power.
3. Fundamental rights mentioned in the constitution for a fair trial have been violated as the petitioner is being tried under chapter XVIII of the CrPC, which is not a proper procedure prescribed under law.
4. Later, added that under section 67 of the NDPS Act, the petitioner’s statement was recorded and cannot be used as confessional statements, and also legally admissible material to frame charges was missing.

Counsel appeared on behalf of NCB/Respondent and argue that the petition presented is meritless and should be deserved to be dismissed. Added that the impugned order has been passed according to law and the court should not scrutinize the evidence available against the accused as subjected to trial.

He said that courts focus should be on whether there is a strong suspicion that the accused committed an offense, rather than requiring proof of the allegation at this stage.

He said the NDPS Act is a special statute and special statutes override the general provision of law. According to section 36A of the NDPS Act, offenses mentioned here are to be tried by a special court and the procedure code CrPC applies to the trial of an offense under the NDPS Act (Section 225 to 237).

He mentioned a precedent Sanjeev vs Deshpande 16(2014) 13 SCC, in this matter the supreme court of India held that earlier in the decision matter of the State of Uttarakhand vs Rajesh Kumar Gupta wrongly concluded that under Rule 63 of the NDPS Act, only those narcotics and substances are applicable which are mentioned in Schedule I and not psychotropics substances which are mentioned in Schedule II of NDPS Act, so it was later decided that not mentioning the substances would not absolve the petitioner and not mentioning the drug’s name does not create any differences.

JUDGEMENT

The purpose of this act is to have a speedy trial of all the offenses mentioned in the act, which is why special courts are allowed to take cognizance and the court of session is empowered to trial the case during the transitional period. The court added that Section 36A(1)(d) is inconsistent with Section 2(d) and Section 190 of the CrPC now therefore, any complaint should be registered to a special court under Section 36 A(1)(d) and not to a magistrate under said section, the complaint referred in section 36A(1)(d) can only be made by an approved officer and is not a private complained referred to a section 190 of the CrPC.

It was held that a court of session under section 193 of CrPC cannot take cognizance of the original jurisdiction but a special court may take cognizance of an offence under NDPS Act under section 36A(1).

It was also held that the petitioner relied upon the matter of case Sunil Mehta (Supra) is distinguished on the facts and the same would not apply to the instant case.

On the question of the applicability of Chapter XIX, it was held that the trial of NDPS Act is concerned, the NDPS Act clearly states that it has to be conducted by the court of session/special judges, and the applicability of Chapter XIX excluded the mandates of the law.

It was held that Respondent No. 1 was caught while taking a bag from Respondent No. 2 at the main gate of the Post office, in New Delhi. Respondent No. 2 is the employee of Respondent No. 3. By the search warrant information, the role of Respondent No. 3 (Amit Kohli) was also established. Respondent no. 3 and Respondent no. 4 (Diwakar Gupta) by the search warrant at the office of Leela Ram Market Masjid Moth gathered sufficient material against each of them.

It was finally held that not only the statements under section 67 of the NDPS Act held against the petitioner but also other material available to them is sufficient to make a prima facia case to put an accused on a trial. It has been 14 years and the trial has not yet commenced this court directed the special court to conclude the entire trial within a period of eight months from the date of receipt of the copy of this order.

Petitioner was ordered to cooperate with the trial and the respondent may take any appropriate steps according to the law.

REFERENCES

https://www.latestlaws.com/judgements/delhi-hc/2022/october/2022-latest-caselaw-2456-del

This Article is written by Nikhil Yadav of Dr. B.R. Ambedkar National Law University, Intern at Legal Vidhiya.

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