Inventory conducted under Section 52A of the NDPS Act is primary evidence, and an accused cannot compel production of seized materials if they did not participate in the inventory process.

ORDER :

(Tarlada Rajasekhar Rao, J.)

The Senior Intelligence Officer, Directorate of Revenue Intelligence has filed a complaint in F.No. DRI/HZU/ VJRU/48/ENQ- 1[INT-1]/2017 against the accused to take cognizance for the offence punishable under Sections 20, 28, and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act, 1985). The said complaint was registered as S.C. No.109 of 2017. The said officer has filed Crl.M.P.No.1069 of 2017 under Section 52A of NDPS Act praying the Court to allow the application and permit to forward the original sample drawn in the presence of Magistrate of CRCL, Chennai, along with the test memos in duplicate. The said application was allowed by an order dated 22.03.2017 permitting the complainant to follow the procedure contemplated under sub-section (2) of Section 52A of the NDPS Act, 1985 and permitting the complainant to dispose of the property as per Sub-Section (1) of Section 52A of NDPS Act, 1985, and the date fixed to follow the procedure under sub-section (2) of Section 52A of the NDPS Act.

2. Be that as it may after examining of two witnesses, the 2nd respondent who is the accused has filed an application in Criminal M.P. No.2086 of 2018 before the learned Metropolitan Sessions Judge at Vijayawada, under Section 91 of Cr.P.C. with a prayer to direct the prosecution to produce M1 to M111 drums before the Court for the purpose of trial, on the ground that the accused has expressed his doubt about manner in which the inventory was conducted and when the accused wanted to physically inspect the material objectives and not only physical inspection of material objects by the accused or his counsel, but the accused has an opportunity to summon the Magistrate, if there are serious lapses in conducting the inventory.

3. The said application was objected by the prosecution stating that under Section 52 of NDPS Act, an application was filed before the IV Additional Chief Metropolitan Magistrate, Vijayawada as mandated by the Hon’ble Supreme Court in the case law in Union of India v. Mohanlal and another, 2012(7) SCC 712 and the photographs of the seized stock have been taken and they have been submitted along with the charge sheet and the inventory conducted by the Magistrate can be taken as primary evidence during the course of trial and inventory conducted cannot be looked into by the trial court. The said report was filed on receiving report from the CRCL, Chennai and a notice was given to the accused before conducting the inventory by the Magistrate, but the accused not availed the opportunity to context the said application and did not participate in the proceedings and the report received from the CRCL, Chennai clearly discloses that the material seized from the accused is ganja and at no point of time, the prosecution has suppressed any fact. Since, the accused did not challenge the proceedings under Section 52A of the NDPS Act, now, he cannot seek direction to cause production of the drums before the Court. Therefore, prayed to dismiss the application filed by the 2nd respondent/accused.

4. Learned Sessions Judge has allowed the said application filed under Section 91 Cr.P.C. by an order dated 09.11.2018 and directed to cause production of the material objectives M1 to M111 drums before the Court for the purpose of trial on the ground that to have a transparent and fair trial.

5. Aggrieved by the order in Crl.M.P. 2086 of 2018 in Sessions Case 109 oof2017, the present Criminal petition is filed to quash the said order on the grounds that the said order is contrary to the very purport of Section 52A of the NDPS Act, 1985 and as per the judgment of the Hon’ble Apex Court in Mohinder Singh v. State of Punjab in Criminal Appeal No.2182 of 2010, wherein it was held that for proving the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence wo