Mischief Rule Can't Be Invoked To Read 'Magistrate' As 'Special Court' U/S 52A NDPS Act: Orissa High Court

A petition was by the State of Odisha through the Superintendent of Police, Special Task Force, CID CB seeking directions to the Registrar General of the High Court for taking appropriate measures towards seizure, sampling, safe keeping and disposal of seized drugs, narcotics and psychotropic substances in terms of the judgment of the Supreme Court in Union of India v. Mohanlal, (2016) 3 SCC 379. In particular, it was pointed out that despite the insertion of Section 52-A in the NDPS Act by the NDPS (Amendment) Act, 2014, not enough has been done for actual disposal of the seized drugs in the State of Odisha and that there is a huge inventory of such seized drugs in the Malkhanas of various police stations as well as in the Courts.

Reference was also made to the Notification issued by the Department of Revenue, Ministry of Finance, Government of India, regarding disposal of narcotic drugs, psychotropic substances, controlled substances and conveyances immediately after their seizure. Clauses 4 and 9 of the said Notification set out the manner and mode of disposal of the drugs. These two have been interpreted by the Supreme Court in its judgment in Mohanlal (supra). The Apex Court had formulated guidelines in this regard.

The purpose of the instant petition was to persuade the Court to exercise its power of superintendence over the Special Courts to achieve the purpose of the statute and ensure that the disposal of the drugs in terms of the guidelines issued in Mohanlal (supra) takes place within a definite time frame.

Major Issue for Consideration:

The Court found the following issue pertinent to be decided before issuing any direction:

Whether the term 'Magistrate' appearing in Section 52-A, NDPS Act should be construed to mean 'Special Court'?

Contentions of the Petitioner:

The State submitted that confusion has been created by Section 52-A requiring certification by the 'Magistrate' whereas the power to take cognizance of the offences is with the Special Courts in view of Section 36-A(1)(d) of the NDPS Act. The power to order remand has also been vested with the Special Court under Section 36-A(1)(c) of the Act. It was accordingly submitted that the word 'Magistrate' should be read as 'Special Court' in order to avoid any anomalies in the implementation of the guidelines in Mohanlal (supra).

Contentions of the Respondent:

The opposite party argued that the language of Section 52-A(2) envisages the Magistrate to whom an application is made, to allow the application as soon as possible, since under Section 52-A(3) of the NDPS Act, no discretion in that regard is left with the Magistrate. According to the respondent, the constitution of Special Courts under Section 36 and certification of the correctness of the inventory under Section 52-A(2) "are altogether two different aspects".

Decision of the Court:

The Court held that legislative intent is clear and in the light of interpretation of Section 52-A(2) to (4) by the Supreme Court in State of Punjab v. Makhan Chand, (2004) 3 SCC 453; Noor Aga v. State of Punjab, (2008) 16 SCC 417; Union of India v. Jarooparam, (2018) 4 SCC 334, there is no scope for invoking 'mischief rule' to read the word 'Magistrate' in the above provision as 'Special Court'. It further cited Bangaru Laxman v. State, (2012) 1 SCC 500, where it was held that the expression 'Magistrate' would include a 'Special Judge' only for the purpose of 'grant of pardon' under Section 306, Cr.P.C. Again, the observation in State of Tamil Nadu v. V. Krishnaswami Naidu, (1979) 4 SCC 5, that the Magistrate defined under Section 3(32) of the General Clauses Act includes a Special Judge for the purposes of 'remand' under Section 167, Cr.P.C. is also for that limited purpose.

Sections 36-A to 36-C which specify the powers of the Special Judge do not expressly state that such Special Judge can exercise the powers of the Magistrate for the purposes of Section 52-A(2) to (4) of the Act. Therefore, it was held that it is not possible for the Court to direct that the powers exercisable by the Magistrate under Section 52-A could be exercised by the Special Judge under Section 36.

Further, the Court noted that there have been decisions of the Single Judges of the Court on the subject of release of vehicles seized after being found carrying narcotic drugs. In Jitendra Kumar Digal v. State of Odisha (judgment dated 22nd October 2020 in Criminal Revision No. 281 of 2020), it was held that when the accused is the owner of the seized vehicle carrying the narcotic goods, the vehicle should not be released in his favour. At this stage, the Court clarified that the directions issued in the present judgment would prevail over such judgments.

Before parting with the judgment, in order to speed up the process under Section 52-A(2) to (4), the Court issued multiple directions. Further, it required copies of the order to be delivered to each of the District Judges in whose jurisdiction the applications are pending, to the corresponding High Level Drug Disposal Committee and to the Director, State Forensic Science Laboratory forthwith for compliance.

Case Title: State of Odisha v. Registrar General, Orissa High Court, Cuttack

Case No.: Writ Petition (Civil) No. 32580 of 2021

Date of Judgment: 31^st January 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice A.K. Mohapatra

Citation: 2022 LiveLaw (Ori) 9