The power vested in the 'Magistrate' under Section 52-A (2) to (4) of the NDPS Act cannot be interpreted to be exercised by the Special Court constituted under Section 36 of the NDPS Act.

JUDGMENT

Dr. S. Muralidhar, CJ. - Introduction 1. This petition by the State of Orissa through the Superintendent of Police, Special Task Force, CID CB seeks directions to the Registrar General of this Court for taking appropriate measures towards seizure, sampling, safe keeping and disposal of seized drugs, narcotics andpsychotropic substances in terms of the judgment of the Supreme Court in Union of India v. Mohanlal (2016) 3 SCC 379, which was delivered on 28th January, 2016. In particular, it is pointed out that despite the insertion of Section 52-A in the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) by the NDPS (Amendment) Act, 2014(Act 16 of 2014), not enough has been done for actual disposal of the seized drugs in the State of Orissa 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 is also made to the Notification dated 16th January, 2015 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 Court has formulated guidelines in this regard.

2. It is stated that pursuant to the directions issued by the Supreme Court, the Home Department of the Government of Orissa formed Drugs Disposal Committees (DDCs) for every district by a Notification dated 29th December, 2016, which was later modified by a Notification dated 23rd May, 2017.

3. The grievance is that despite the concerned Investigating Officers (IOs) filing applications under Section 52-A of the NDPS Act before the Special Courts, orders are not being passed thereon except in a lonecase being the Balasore Special Case No.221 of 2020 before the learned Special Judge, Balasore. Annexure-3 to the petition gives a list of pending applications in the various districts, which are yet to be disposed of. As an illustration, the Petitioner has enclosed as Annexure-4 series to the petition, a copy of an application filed under Section 52-A (2) of the NDPS Act before the Sessions Judge-cum- Special Judge, Khurda at Bhubaneswar, which has been pending since 16th November, 2020. It is pointed out that subsequent certification by learned Magistrate is yet to be made in the case.

4. The Petitioner has highlighted a few difficulties faced in the implementation of Section 52-A of the NDPS Act and the guidelines issued by the Supreme Court in Mohanlal (supra). Some of these issues read as under:

'i. When certification of the drugs, required to be disposed of, is to be made by any Magistrate, no specified list of Magistrates, to carry out the work has been prepared till now;

ii. In absence of any specified/notified Magistrates, the respective IOs are placing the inventories before the jurisdictional Special Courts, for certification under section 52A(2), finding no other alternatives;

iii. The jurisdictional Special Courts have not been directed specifically to empower any of the Magistrates to carry out the job of certification as required under section 52A(2);

iv. As the samples of drugs, drawn under sub-section-2 of section 52A and certified by the Magistrates, is to be treated as a primary evidence, by the learned Court, trying an offence under the Act, as stated in section 52A(4), the very process of certification might be considered as quite delicate and hence the learned Special Courts might be under a state of confusion in absence of any specified directions;'

5. The purpose of the present petition is to persuade this Court to exercise the 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