Bombay High Court Issues Directions For Proper Implementation Of Statutory Procedure For Issuing Certificate U/S 52A(3) NDPS Act
The Bombay High Court allowed a batch of four Bail Applications filed by the accused persons in connection with the offences punishable under the NDPS Act.
The Bombay High Court has issued certain directions so that the statutory procedure for issuing the certificate under Section 52A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is followed by the prosecuting agencies.
The Court was deciding a batch of four Bail Applications filed by the accused persons in connection with the offences punishable under Sections 8(c), 21(c), 22(c), and 29 of the NDPS Act read with Sections 465, 468, 471, and 473 of the Indian Penal Code, 1860 (IPC).
A Single Bench of Justice Milind N. Jadhav said, “… I deem it appropriate to issue the above directions so that the statutory procedure for issuing the certificate under Section 52A (3) is followed as per Form 5 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 by all prosecuting agencies under the NDPS Act which will eliminate any ambiguity of procedure as transgression such as the one observed in the present case.”
The Bench observed that if the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 prescribe issuance of certificate under Section 52A in Form 5, it has to be so and not in any other format devised by the prosecution and if Statutory Rules are not followed, it amounts to clear transgression of the provisions of Section 52A.
Advocates Ayaz Khan and Samarth Shrikant Karmarkar appeared for the Applicants/accused persons while APPs Hitendra J. Dedhia and Sukanta Karmakar appeared for the Respondent/State.
Brief Facts
In 2023, in a chance recovery, Accused No. 1 was apprehended by the prosecution with an alleged contraband of 100 bottles of Codeine Phosphate & Chlorpheniramine Malete Syrup 100 ml, DASLIN – CD+’ containing Codeine Phosphate which was admittedly a commercial quantity. On inquiry, he disclosed the name of Accused No. 2 as supplier. Prosecution raided house of Accused No. 2 and recovered 42 boxes containing 4200 bottles of the same contraband and 900 tablets of ‘Nitrazepam Tablets – IP Nitravet’ containing Nitrazepam from his possession. Accused No. 2 disclosed the name of Accused No. 3 as supplier of Nitrazepam Tablets and Accused Nos. 4 and 5 as suppliers of Codeine Phosphate syrup bottles.
Common panchnama qua Accused Nos. 1 and 2 was completed and thereafter an FIR was lodged. Accused Nos. 1 and 2 were arrested by following the due process of law. Panchama qua Accused No. 3 was completed and then he was arrested. Accused No. 3 was, however, enlarged on bail via an Order of the Sessions Court. The prosecution also conducted search of residence of Accused No. 5 and recovered rubber stamps of medical practitioners and certain invoices. Accused persons disputed this position since search of premises of both the accused was allegedly carried out without any authorization or search warrant.
Reasoning
The High Court in view of the above facts, directed, “I direct the Registry of this Court to send a copy of this Judgement to all Commissioners of Police / Superintendent of Police in each district of the state for implementing the provisions of the NDPS Act and Rules strictly through the investigating agencies authorized under the NDPS Act. The said Commissioner of Police / Superintendent of Police of each district / region are directed to provide a copy of the entire guidelines to all Police Stations under their Jurisdiction / Prosecuting agencies under the NDPS Act for following the same.”
The Court further emphasised that when the Magistrate issues the certificate under Section 52A(3) of NDPS Act, the said certificate is required to be appended to and it has to be in continuity with the Application for certification of correctness of the inventory, photographs, and samples of seized Narcotics Drugs and Psychotropic drugs and conveyances.
“In the present case, it is seen that the said certificate is not appended to and not in continuity with the Application for certification but it is appended to the Inventory Panchanama itself. It is seen that the Application for certification is completely missing. It is not in the prescribed Form 5 under Rules 8 and 18(1). The certificate which is appended to the inventory panchnama in all 4 cases before me is not is accordance with Form 5 readwith Rule 8 and Rule 18(1) of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 and also Section 52A(3) of the NDPS Act”, it added.
The Court said that Form 5 precisely prescribes that the Application and the certificate are to be appended together and in continuity with each other and they both are inextricably linked if they are read together. It also noted that in this case, the Application is missing and the Magistrate’s certificate is merely printed below and not as per Form 5.
“… directions are given for uniformity in procedure to be adopted by the Prosecution Agencies. … We as a system also need to invest our resources on educating our statutory officers so as to enable them to discharge their wide powers with legal prudence and in accordance with the statute / Rules as prescribed. This pursuit is what has motivated me to take up this exercise and go to the root of the issue raised by Mr. Khan to eliminate procedural hazards which enure to the benefit of accused persons indulging in drug trade”, it remarked.
The Court concluded that to a certain extent it may help us all in achieving a drug free society if the laws and Rules are strictly implemented and followed leaving no room for doubt or vitiation of procedure.
Accordingly, the High Court allowed the Applications and granted bail to the accused persons on furnishing a bond of Rs. 50,000/- each with one or two sureties in the like amount.
Cause Title- Chandrabhan Janardhan Yadav v. State of Maharashtra (Neutral Citation: 2025:BHC-AS:10527)
Appearance:
Applicants: Advocates Ayaz Khan, Samarth Shrikant Karmarkar, Dilip Mishra, Zehra Charania, Mallika Sharma, Jayant M. Puranik, and Arsuma Suhel.
Respondent: APPs Hitendra J. Dedhia and Sukanta Karmakar.
