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

The Orissa High Court has held that mischief rule cannot be invoked to read the word 'Magistrate' as 'Special Court' under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.Section 52A pertains to disposal of seized narcotic drugs and psychotropic substances. Sub-section 2 thereof provides that where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the police station, such officer make an application, to any Magistrate for the purpose of: (a) certifying the correctness of the inventory so prepared; or(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.While the Court was hearing a petition against tardiness in the process for disposal of such substances, it was suggested to the Bench 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 State government submitted that the word 'Magistrate' should be read as 'Special Court' in order to avoid any anomalies.Discarding this argument, the Bench of Chief Justice Dr. S. Muralidhar and Justice A.K. Mohapatra observed,"The above contention of the Petitioner-State in fact is based the 'Mischief Rule' in the law relating to interpretation of statutes...The legislative intent being clear and the decisions of the Supreme Court having consistently interpreted Section 52 A (2) to (4) in the manner indicated hereinabove, there is no scope for invoking 'mischief rule' to read the word 'Magistrate' in the above provision as 'Special Court'."Factual Background: 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...

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

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

Jyoti Prakash Dutta

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