JUDGMENT
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.652 OF 2012
Union of India …Appellant
Versus Mohanlal & Anr. …Respondents
JUDGMENT
T.S. THAKUR, CJI.
1. When this appeal came up for hearing before us on 11th April, 2012, it was contended by learned counsel for the appellant-Union of India that Standing Order No.1 of 1989 dated 13th June, 1989 which prescribes the procedure to be followed for seizure, sampling, safe keeping and disposal of the seized Drugs, Narcotics and Psychotropic substances is being followed throughout the country. It was also contended that Ministry of Finance, Department of Revenue, Government of India, has in terms of a Circular dated 23rd February, 2011 impressed upon the Chief Secretaries and the concerned police heads of the State Governments to
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ensure that instructions given and the procedure prescribed in the Standing Order aforementioned was strictly adhered to. These submissions notwithstanding, doubts about the procedure being actually followed persisted. Pilferage of the contraband goods and their return to the market place for circulation being a major hazard, this Court appointed Mr. Ajit Kumar Sinha, Senior Advocate, as Amicus Curiae, with a view to making a realistic review of the procedure for search, disposal or destruction of the narcotics and the remedial steps that need to be taken to plug the loopholes, if any.
2. On 3rd July, 2012 this Court after hearing the Amicus Curiae prima facie came to the conclusion that the procedure prescribed for the destruction of the contraband seized in different States was not being followed resulting in a very piquant situation in which accumulation of huge quantities of the seized drugs and narcotics has increased manifold the chances of their pilferage for re-circulation in the market. This Court also noted a report published in the timesofindia.indiatimes.com under the heading “Bathinda’s
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police stores bursting at seams with seized narcotics” from which it appeared that large quantities of seized drugs had accumulated over the years including opium, poppy husk, charas etc. apart from modern narcotic substances. The report suggested that 39 lakhs sedatives and narcotic tablets, 1.10 lakhs capsules, over 21,000 drug syrups and 1828 sedative injections apart from 8 kgs. of smack and 84 kgs. of ganja were awaiting disposal in Bathinda Police stores alone. The position was, according to Mr. Sinha, no better in other States especially those situate along the international borders. It was argued by the Amicus Curiae that without proper data from the authorities concerned, it was not possible to take stock of the magnitude of the problem no matter challenges posed by rampant drug abuse had acquired alarming proportions affecting the youth, some of whom are driven to commission of crimes on account of deleterious effects of drug abuse.
3. It was in the above backdrop that by an order dated 3rd July, 2012 passed in Criminal Appeal No.652 of 2012 this Court directed collection of information from the police
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heads of each one of the States through the Chief Secretaries concerned in regard to seizure, storage, disposal and destruction of the seized contraband and judicial supervision over the same. Specific queries were formulated in the order passed by us with a direction to the Chief Secretaries of the States concerned to serve the same upon the Directors General of Police for a report to be forwarded through the Registrars General of the High Courts of the States concerned who were appointed Nodal Officers for that purpose. Registrars General were also asked to independently secure from the District and Sessions Judges concerned in their respective States, answers to the queries specified under the head “Judicial Supervision”. Chiefs of Central Government Agencies viz. Narcotics Control Bureau, Central Bureau of Narcotics, Directorate General of Revenue Intelligence and Commissionerates of Customs & Central Excise including the Indian Coast Guard were directed to issue similar queries to the officers concerned and to submit their respective reports detailing the information required in
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terms of the orders passed by this Court. The queries raised by this Court were in the following words:
“12.1. Seizure (i) What narcotic drugs and psychotropic substances (natural and synthetic) have been seized in the last 10 years and in what quantity? Provide yearwise and districtwise details of the seizure made by the relevant authority. (ii) What are the steps, if any, taken by the seizing authorities to prevent damage, loss and pilferage of the narcotic drugs and psychotropic substances (natural and synthetic) during seizure/transit? (iii) What are the circulars/notifications/directions/guidelines, if any, issued to competent officers to follow any specific procedure in regard to seizure of contrabands, their storage and destruction? Copies of the same be attached to the report.
12.2. Storage (i) Is there any specified/notified store for storage of the seized contraband in a State, if so, is the storage space available in each district or taluka? (ii) If a store/storage space is not available in each district or taluka, where is the contraband sent for storage purposes? Under what conditions is withdrawal of the contraband permissible and whether a court order is obtained for such withdrawal? (iii) What are the steps taken at the time of storage to determine the nature and quantity of the substance being stored and what are the measures taken to prevent substitution and pilferage from the stores? (iv) Is there any check stock register maintained at the site of storage and if so, by whom? Is there any periodical check of such register? If so, by whom? Is any record regarding such periodic inspection maintained and in what form?
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(v) What is the condition of the storage facilities at present? Is there any shortage of space or any other infrastructure lacking? What steps have been taken or are being taken to remove the deficiencies, if any? (vi) Have any circulars/notifications/directions/guidelines been issued to competent officers for care and caution to be exercised during storage? If so, a copy of the same be produced.
12.3. Disposal/Destruction (i) What narcotic drugs and psychotropic substances (natural and synthetic) have been destroyed in the last 10 years and in what quantity? Provide yearwise and districtwise details of the destruction made by the relevant authority. If no destruction has taken place, the reason therefor. (ii) Who is authorised to apply for permission of the court to destroy the seized contraband? Has there been any failure or dereliction in making such applications? Whether any person having technical knowledge of narcotic drugs and psychotropic substances (natural and synthetic) is associated with the actual process of destruction of the contraband? (iii) Was any action taken against the person who should have applied for permission to destroy the drugs or should have destroyed and did not do so? (iv) What are the steps taken at the time of destruction to determine the nature and quantity of the substance being destroyed? (v) What are the steps taken by competent authorities to prevent damage, loss, pilferage and tampering/substitution of the narcotic drugs and psychotropic substances (natural and synthetic) during transit from point of storage to point of destruction? (vi) Is there any specified facility for destruction of contraband in the State? If so, a list of such facilities along with location and details of maintenance, conditions and supervisory bodies be provided. (vii) If a facility is not available, where is the contraband sent for destruction purposes? Under whose supervision and what is the entire procedure thereof?
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(viii) Is any record, electronic or otherwise prepared at the site of destruction of the contraband and by whom? Is there any periodical check of such record? What are the ranks/designation of the supervising officers charged with keeping a check on the same?
12.4. Judicial supervision (i) Is any inspection done by the District and Sessions Judge of the store where the seized drugs are kept? If drugs are lying in the store, has the Sessions Judge taken steps to have them destroyed? (ii) Is any report of the inspection conducted, submitted to the Administrative Judge of the High Court or the Registry of the High Court? If so, has any action on the subject being taken for timely inspection and destruction of the drugs? (iii) Are there any pending applications for destruction of drugs in the district concerned, if so, what is the reason for the delay in the disposal of such application? (iv) What level officers including the judicial officers are associated with the process of destruction? (v) At what stages are the Magistrates/judicial officers/any other officer of the court associated with seizure/storage/destruction of drugs? (vi) Are there any rules framed by the Court regarding its supervisory role in enforcement of the NDPS Act as regards seizure/storage/destruction of drugs? (vii) What is the average time for completion of trial of NDPS matters?”
4. In compliance with the above directions, reports have been submitted by all the States except the States of Arunachal Pradesh, Jammu and Kashmir, Dadar & Nagar Haveli, Lakshadweep, Nagaland and Pondicherry. From a perusal of the reports so received the position that emerges in regard to disposal/destruction of narcotic drugs and
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psychotropic substance qua each State for the last 10 years may be summarised as under:
DETAILS OF SEIZURE AND DISPOSAL OF DRUGS
(STATEWISE)
1)
ANDHRA PRADESH
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Ganja 2,20,977.191 Kg 3910.70 Kg 217066.491 kg (98.23%) Opium 22.925 kg 0 22.925 Kg (100%) Charas 6.5 kg 0 6.5 kg (100%) Cocaine 851.096 kg 0 851.096 kg (100%)
Others
85.125 kg + 103
Capsules + 81
Injections 26 Amp
2.
ASSAM
(The Information pertains only to the period of 2010-2012)
Item
Total
Quantity
Seized
(In
10
years)
Total
Quantity
Destroyed
(in
10
years)
Difference Ganja 203.54 Kg 136 Kg 67.54 (33.18%) Heroin .614 kg 0 .214 Kg (34.853%) Opium 30 gms 0 30 gms (100%) Others 755662 41472 Nos. 714190 Nos. (94.5%)
3.
BIHAR
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Item
Total Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Ganja 45 Kg 0 45 kg Heroin 3.74 kg 0 3.74 kg Charas 48.853 kg 0 48.853 kg
Poppy
Straws
100 kgs 0 100 kgs
Methqualo
ne
1676 kgs 0 1676 kgs Note:- No destruction of narcotic drugs and psychotropic substances have taken place at Patna zonal unit.
4.
CHHATTISGARH
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Ganja
1,03,622.140 kg
Kg
3281.570 kg
1,00,340.57
(96.77%)
Cannabis
Plants
52478 (Nos) 380 (Nos) 52098 (Nos) (92.7%)
Brown
Sugar
3.120 kg 0 3.129 kg (100%) Opium 1.460 kg 0 1.460 kg (100%)
Opium
Poppy Plant
1558 pieces 0 1558 pieces (100%)
Green
Opium Plant
3600 kg 0 3600 kg (100%)
5.
CUSTOMS AND CENTRAL EXCISE
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Opium 367.007 kg 658.525 kg Destroyed more than seized Morphine 58.393 kg 190 kg + 88930 Pcs 58.203 kg 9
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Injections (99.6%) Heroine 1658.099 kg 739.687 kg 918.412 kg (55.3%) Ganja 484124.056 kg 8,43,008.559 kg Destroyed more than seized Hashish 77350.076 kg 12298.578 kg Destroyed more than seized Cocaine 640.569 kg 0 640.569 kg (100%)
6.
CHANDIGARH
Item
Total
Quantity
Seized
(In
10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Contraband
By relevant
authorities
3205.623 Kgs
900.179 Kgs
2305.444 Kgs
(71%)
Morphine 58.393 kg 190kg + 88930 Pcs Injections
58.203 kg (99.6%) Heroine 1658.099 kg 739.687 kg 918.412 kg (55.3%) Ganja 484124.056 kg 8,43,008.559 kg Destroyed more than seized Hashish 77350.076 kg 12298.578 kg Destroyed more than seized Cocaine 640.569 kg 0 640.569 kg (100%)
7. DELHI Delhi has provided two responses. One response has been provided by the NCB, Delhi and the other by the police heads of each of the district. The response by NCB, Delhi is as follows :-
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Contraba
nd
8891.8373 680.376 kg 8211.4613 kg (92.34%) The Response by the police heads are as follows:-
Item
Total
Quantity
Seized (In 10
years)
By
relevant
Total
Quantity
Destroyed (in 10
years)
Difference
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authorities
Contraban
d
(Hashish,
Cocaine,
Ganja,
Heroin
etc.)
52944.577 kg 32443.456 kg 20500.601 (38.72%)
Contraban
ds
(Chemical
Substance
s in
Tablets,
Injections
)
1020669 0 1020669 (100%)
8.
DAMAN AND DIU
The UT Daman and Diu has informed the Total quantity by way of a detailed chart:
Item
Total
Quantity
Seized (In 10
years)
By
relevant
authorities
Total
Quantity
Destroyed (in 10
years)
Difference
Contraba
nd
25.827 kgs 000 kgs 25.827 Kgs (100%)
9. DIRECTORATE OF REVENUE INTELLIGENCE
Item
Total
Quantity
Seized (In 10
years)
By
relevant
authorities
Total
Quantity
Destroyed (in 10
years)
Difference
Contraba
nd
174185.687 kg 2859.448 Kg 171326.239 (98.3%)
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10. GUJARAT The Response of the state is divided into two parts. One has been provided by the office of the Ministry of Home Affairs. As per the said response the total amount of contraband seized in 10 years are 28340.047 Kg. No division of the type has been provided. The total destruction in the last 10 years however is only 132.375 Kg The total amount of Contraband still in custody of the authorities is 28207.672 Kgs, i.e. 99.53% of the seized amount. The response of the NCB Zonal Unit is as follows:
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Charas 1421.14 kg 15.056 kgs 1406.084 kg (98.9%) Opium 17.505 kg 0 17.505 kg (100%)
Brown
Sugar
2.03 kg 0 2.03 kg (100%) Heroin 3.066 kg 0 (981 gms of Heroin was destroyed in 2000, however all the seizures have been made post 2003)
3.066 kg
(100%)
Others
3766.126 kg +
299 ltrs. + 1022
Tablets
525 kgs 3241.126 kgs (86.05%) + 229 ltrs (100%) + 1022 Tablets (100%) 11. GOA The UT Chandigarh has informed the Total quantity by way of a detailed chart:
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
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By
relevant
authorities
Contraba
nd
548.746 kgs. 000 kgs 548.7476 kgs (100%)
12.
HARYANA
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Ganja 2604.077 kg 521.133 kg 2082.944 kg
(79%) Charas 7252.513 kg 533.46 kg 6719.053 kg (92.64%) Opium 1086.387 kg 1972.860 Destroyed more than seized Smack 8200.00 kg 4169.919 kg 4030.081 kg (49.14%) Heroine 1.046 kg 1.300 kg Destroyed more than seized Brown Sugar
2.001 kg 1.003 kg 998 kg (49.87%) Cocaine .325 kg 0 .325 kg (100%)
13. HIMACHAL PRADESH The State of Himachal Pradesh has informed the Total quantity by way of a detailed chart:
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Contraba
nd
17026.714 1856.913 15169.801 (89.09%)
14.
JHARKHAND
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
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Ganja 1793.381 kg 0 (area of cultivation has been destroyed) 1793.381 kg (100%) Opium 360.59 kg 0 360.59 kg (100%) Brown Sugar
1.576 kg 0 1.576 kg (100%) Heroine 546 kg 0 546 kg (100%)
15.
KERALA
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Ganja 7588.543 Kg 2740.926 kg 4847.617 kg (63.88%) Heroine .536 kg 0 .536 kg (100%) Hashish 12.368 kg 0 12.368 (100%) Charas .063 kg 0 .063 kg (100%) Brown Sugar
8.432 kg 12.058 kg Destroyed more than seized Opium 23.697 kg 0 23.697 kg (100%)
16.
KARNATAKA
The state of Karnataka divided its response in two parts. One is seizure by Police and the Other is seizure by NCB
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Contraba
nd
By NCB
366.838 Kgs
By relevant
authorities
27291.633 Kgs
000 kgs 12140.592
366.838 Kgs
(100%)
15151.041
(55%)
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17.
MAHARASHTRA
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Ganja 1,14,082 kg 8750 kg 1,14,074 kg (92.33%) Heroin 654 kg 228 kg 426 kg (65.13%) Charas 2364.90 kg 471.735 1893.165 (80.05%) Opium 613.044 kg 47.135 kg 565.909 kg (92.31%) Cocaine 11.049 kg 0 kg 11.049 kg
(100%)
18.
MANIPUR
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Heroin 37.534 kg. 12.498 kg 25.036 kg (66.072%) Ganja 45343.25 kg 41963.389 kg (Kindly refer to the Note)
3379.861 kg
(7.45%)
Opium 233.985 kg 0 233.985 kg (100%) Hashish 3.05 kg 0 3.05 kg (100%) Note: The Total amount of Ganja seized post 2005 was 25913.225 kgs and the same is still lying with the authorities since the last pretrial disposal in 2005. 19. MADHYA PRADESH Madhya Pradesh has divided its response in two parts. One is seizure by Police and the other is seizure by NCB.
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Item
Total
Quantity
Seized (In 10
years)
In Kgs
Total
Quantity
Destroyed (in 10
years)
In Kgs
Difference
In Kgs
Contraba
nd
By Police-
804376.528
BY NCB
348 kg
By Police
61384.805
By Police
-742991.723
Kgs (92%)
Destroyed
more than
seized
20.
Ministry of Home Affairs NCB
Item
Total
Quantity
Seized
(In
10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Contraban
d
By relevant
authorities
5344.12 Kgs. 4476.482 kgs 867.638 (16%)
21.
ORISSA
Orissa has divided its response in two parts. One is seizure by Police and the Other is seizure by Excise Officials.
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Contraba
nd
By Police
88241.741 Kgs
By Excise
34520.854 Kgs
(100%)
0.000
0.000
By Police-
88241.741 Kgs
(100%)
By Excise
34520.854 Kgs
(100%)
22.
PUNJAB
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
JUDGMENT
Poppy
Husk
8,93,948.452 kg 4,00,678.069 kg 4,93,270.383 kg (55.17%) Opium 4936.031 kg 965.818 kg 3970.213 kg (80.43%) Smack 20045.293 kg 104.631 kg 19940.662 (99.47%)
23.
RAJASTHAN
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Brown
Sugar
146.996 kg 23.381 kg 123.615 kg (84.094%) Heroine 173.216 kg 3.25 kg 169.966 kg (98.12%) Smack 275.246 kg 82.423 kg 192.823 kg (70.05%) Opium 6687.081 kg 2006.745 kg 4680.335 kg (69.99%) Charas 935.602 kg 1192.309 Destroyed more than seized Ganja 176289.677 kg 2578.712 kg 174250.965 kg (98.84%)
Poppy
Straw
99684.05 kgs 1,34,652.55 kg Destroyed more than seized. 24. SIKKIM
Item
Total Quantity
Seized (In 10
years)
By
relevant
authorities
Total
Quantity
Destroyed (in 10
years)
Difference N-10 Capsure 9156 ** 9156 (100%)
Spasmo
Proxyvon
Capsule
277367 ** 277367 (100%)
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Corex/
Phensidylere
codex
3033 ** 3033 (100%) Others ** 203.92 gms.
** The State Government of Sikkim has replied that the destruction is done as per the orders of the Trial Court on the conclusion of Trial. However, no details related to disposal has been provided.
25.
TAMIL NADU
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference
Ganja
(Dry +
Green)
656778 kg 19366.98 kg 637411.02 jg (97.051%) Charas 13 kg 1 kg 12 kg (92.30%) Heroin 66.42 kg 66.425 kg 0 Cocaine 1 kg 15.4 kg Destroyed more than seized Brown Sugar
0.015 kg 0 0.015 kg (100%) Opium 30.4 kg 1.738 kg 29.262 kg (96.25%) Hash Oil 10 kg 1 kg 9 kg (90%) Tidigesic inj. 13627 vials 4095 vials 9532 vials (69.94%) Norphine 112 amps 0 112 amps (100%) Bosikka 9 0 9 (100%) Diazepa m
9.085 kg + 2706
vials
4.51 (kg or vial not
sure)
Poppy
Cap/Stra
ws
246.75 kg 125.05 kg 121.7 kg (49.32%)
Avil
350 tabs + 55
vials
0
350 tabs + 55
vials
26.
TRIPURA
Item
Total
Quantity
Seized (In 10
Total
Quantity
Destroyed (in 10
Difference
JUDGMENT
years)
years)
Ganja 9178.8 2642.5 kg 6536.3 kg (71.21%)
Ganja
Dust
436 kg 87 kgs 349 kgs (80.04%)
27. UTTAR PRADESH There is huge discrepancy between the Quantity seized and the Quantity destroyed.
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Opium 1278.016 kg 198.025 kg 1079.99 kg (84.5%) Smack 455.543 kg 244.443 kg 211.1 kg (46.3%) Heroin 503.664 kg 13.759 kg 489.905 kg (97.2%) Ganja 92525.859 11,820.191 kg 80705.668 kg (87.22%) Charas 9099.432 kg 2234.481 kg 6864.951 kg (75.44%) Intoxicati ng Powder (Cocaine)
3658.065 kg 1035.275 kg 2622.79 Kg (71.69%)
Brown
Sugar
51.455 kg 1.1 kg 51.355 kg (99.8%) Posta Drug 16224.591 kg 5081.988 kg 11,142.603 kg (68.67%)
28.
UTTARAKHAND
Item
Total
Quantity
Seized (In 10
years)
Total
Quantity
Destroyed (in 10
years)
Difference Charas 1252.091 kg 330.459 kg 921.632 kg (73.60%) Doda 6783.765 kg 330.459 kg 6453.306 19
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(95.12%) Opium 28.899 kg 1.859 kg 27.04 kg (93.567%) Heroine 154.454 kg 0 154.454 kg (100%) Intoxicati ng Tablets
22413 Nos 4668 Nos. 17745 Nos (79.17%) Ganja 1121.740 kg 508.300 kg 613.44 kg (54.686%) Smack 8.761 kg + 1022 packets
0.432 kg + 530 Packets
8.329 kg (95.06%) + 492 Packets (48.140%) Injection 1924 Nos 5 Nos. 1919 Nos (99.74%) Brown Sugar .389 kg 0 .389 kg (100%)
29.
WEST BENGAL
Item
Total
Quantity
Seized (In 10
years)
By
relevant
authorities
Total
Quantity
Destroyed (in 10
years)
Difference
Contraba
nd
88520.3317 kg 0 88520.3317 kg (100%) Note:- West Bengal has stated that it does not have any immediate records available of destruction.
5. In regard to the storage of NDPS substances, the State Governments and the Central Agencies have furnished information which the learned Amicus Curiae has tabulated as under:
Annexure D
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Delhi Govt. Gujarat Govt. Guwahati Govt. Yes, specified store for storage of the seized contraband in Delhi Zonal Unit. No specific store. NBC Guwahati Zonal Unit is running from a rented house and one secured room is earmarked as storage place. Imphal Govt. Mizoram Govt. Tripura Govt. Stored in godown of NCB -1 after sealing.
No specific store
No specified store.
Meghalaya Govt. Uttar Pradesh Govt. Maharashtra Govt., Goa and Daman Diu Excise Malkhana is generally used to store contrabands. All district Excise office have their own Malkhana rooms.
UP has no specific place for
storage of the narcotic
drugs.
No
specific
store
in
Maharashtra for storage.
In Goa: Malakhana at Police
Station.
Daman & Diu and Dadar &
Nagar Haveli: Kept in
Malkhana Police Station.
Then sent to storage of
competent
Court
after
chargesheet is filed.
Himachal Pradesh
Govt.
Chhattisgarh Govt.
Andhra Pradesh
Govt. No specified area. No separate storage. No specified area. Rajasthan Govt. Sikkim Govt. Uttarakhand Govt. No specific store. No storage. No specific store. Jharkhand Govt. Kerala Govt. Karnataka Govt. No specific store. No specific storage. No notified store.
Madhya Pradesh
Govt.
Orissa Govt.
Bihar Govt.
Yes, NCB Zonal Unit Indore
ahs well-secured specific
maalkhana (Submissions by
NCB Indore Zonal unit)
No specific Store for storage
after seizure by Police
Station. (Submissions by
Police Heads)
No specific store. Patna Zonal Unit of NCB has specified room.
Withdrawal only under order
of the Court.
Punjab Govt. Haryana Govt. Chandigarh Govt. No specified store. Malkhana in all police stations for storage of contraband Narcotics Drugs and Psychotropic Substances.
A Room called Malkhana is
specifically designated to
keep
the
seized
contrabands.
Tamil Nadu
Customs and Central
Excise
Directorate of Revenue Intelligence No Specific storage space. No specific storage is available
No specific store of its own.
NCB, Jodhpur Zone NCB, Chandigarh West Bengal 21
JUDGMENT
Zone
Yes, But no sub-zone
available.
A separate room has been
specified for storage of
seized contraband.
The seized goods are stored
in Police Station Malkhana
under the charge of a
designated Police Officer
and supervision of officer in
charge of Police Station.
6. Similarly, in answer to the query as to the steps taken at the time of storage to determine the nature and the
quantity of the substance being stored and measures to
prevent substitution and/or pilferage from the stores, the
State Governments have sent their replies which too have
been summarised by the Amicus Curiae in the following
words:
ANNEXURE-F iii. What are the steps taken at the time of storage to determine the nature and quantity of the substance being store and measures to prevent substitution and pilferage from stores?
Delhi
Govt.
Gujarat Govt.
Guwahati
Govt.
Imphal Govt.
Mizoram Govt.
Tripura Govt.
Proper
entry
in
malkhana
register
and
malkhana
incharge
and
properly
locked and
guarded
@Pg 10 of
Delhi Govt.
submission
Writer head
of
Police
station
maintains
muddamal
register
which
has
complete
details. All
subsequent
withdrawal
and
redisposition
are
also
reflected in
the
Complete
process of
classification
and
weighing of
drugs along
with
measures of
prevention
of pilferage
mentioned
at
@ Pg.No.52
of Guwahati
Govt.
Complete
process of
classification
and
weighing of
drugs along
with
measures of
prevention
of pilferage
mentioned
at
@ Pg. No. 74
of
Imphal
Govt.
Utmost care in
weighing and
measurements
by
officer-in-char
ge.
@page 101 of
submissions by
Mizoram Govt.
Malkhana
officer
incharge
carefully
keeps the
contrabands
in the
malkhana
after
maintaining
register.
@Pg.No.3 of
submission
by Tripura
JUDGMENT
muddamal
register
@Pg.2
of
Gujarat
Govt.
submission
submission
submission
Govt.
Meghalaya
Govt.
Uttar
Pradesh
Govt.
Maharashtr
a Govt., Goa
and Daman
Diu.
Himachal Pradesh Govt.
Chhattisgar
h Govt.
Andhra
Pradesh
Govt.
General
duty
of
detecting
officer to
weigh, seal
the
contraband
with
signatures
of civilian
witnesses
with proper
entry
in
register
and lock it.
@pg.7
Annex-A-2
of
Meghalaya
Govt.
Submission
/
---------
Acc.
To
Report of
Comm. Of
Customs @
Pg.67:
Stored in
Central
Godown in
safes and
vaults with
double
locking
system
under
After Seizure
the
concerned
drug
is
weighed.
Subsequentl
y a sample is
taken out of
the bag and
both
are
weighed
separately.
Both
the
sample and
main stock
are wrapped
in a piece of
cloth and are
sealed.
The sample
is sent for
forensic
testing and
the
main
packed
is
sealed and
kept in the
malkhana.
@ Pg.6 of
submissions
Contraband
is packed and
kept
safe
with
Muddemal
Clerk
in
separate
cupboard.
@ Pg.6.
Goa:
Contraband
packed and
sealed at the
spot
of
seizure.
Entry
in
Mudamma,
register
to
show chain of
movements
and
its
custody. @
pg. 8.
Daman
&
Diu
and
Dadar
&
Nagar
Haveli:
there
are
very remote
chances
of
substitution/
pilferage as
the
stored
NDPS
is
seized
by
investigatin
g
officer.
After
samples are
taken, the
same
is
seized
by
I.O. affixing
his own seal
and
later
resealed by
SHO before
consigning
it to the
safe
custody in
police
malkhana of
the Police
Station.
@ Pg.No.3
of HP Govt.
submission.
Details of all
steps
to
determine
the
nature
and quantity
of
the
substance
being store
and measures
to
prevent
substitution
and pilferage
from stores
elaborated @
Pg.No. 3 of
submissions
by
Chhattisgarh
Govt.
During
the
storage
the
details
are
entered
in
storage room
register.
Store room is
duly
sealed
and
armed
guards/station
watch
are
posted.
@ pg.no. 2 of
A.P.
Govt.
submission
JUDGMENT
command
of
a
Gazetted
Officer.
by U.P. Govt.
goods
are
subject
to
periodical
inspection.
Page 9 of the
Response
Rajasthan
Govt.
Sikkim Govt.
Uttarakhand
Govt.
Jharkhand
Govt.
Kerala Govt.
Karnataka
Govt.
No specific
answer.
However
packing
resources for
storage are
used
according to
quantity and
nature of the
contraband.
@ Pg.No. 2
of
submission
by Rajasthan
Govt.
NDPS
is
packed and
sealed
under
stamp of
IO
and
nature and
quantity
recorded in
presence of
individual
witnesses.
Page 11 of
the
Response.
NDPS sample
is sent to
forensic
laboratory.
For
preventing
substitution,
details
entered into
station diary
of
the
concerned
police
station.
Complete
safety
measures
mentioned in
Annex-3 with
the
govt.
submission.
Page 5 of the
Response
Material
objects is
sealed and
packed
properly.
Page 9 of
the
Response
During
recovery
a
pinch of the
substance
is
tested with the
help of field
drug test kit for
an indicative
test.
After
positive
indicative
result,
the
officer makes
detailed
inventory. The
seized goods
are stored in
the
departmental
godown or the
judicial godown
and only a
representative
sample is sent
to
the
laboratory for
chemical
analysis.
@ pg. 10 of
submission by
Karnataka
Govt.
Madhya
Pradesh
Govt.
Orissa Govt.
Bihar Govt.
Punjab
Govt.
Haryana Govt.
Chandigarh
Govt.
By
NCB
Indore Zonal
Seized
drugs
are
Seized
drugs
are
Police
officials
Weekly and
fortnightly
Seized
contraband is
JUDGMENT
Office.
Seized
contraband
wrapped in
transparent
polythene
and then in
white cloth
before
sealing and
signing
it.
Quality and
amount
of
seized drug
is
also
mentioned in
the packet.
@ Pg. 5 of
submissions
by M.P. Govt.
By
police
heads
of
districts:
A
seizure
memo
is
again
prepared u/s
55 of NDPS
Act at the
time
of
storage
in
the
police
station
malkhana
and sealed
by
Station
House
Officer.
Necessary
entries are
made in the
Rojnamcha
and seized
property
register
maintained in
the
police
station.
sealed
in
such
a
manner as
to minimize
the chances
of pilferage.
After
producing
the seized
goods with
permission
of court the
drugs
are
deposited in
maalkhana
in
sealed
condition
with proper
entry and
under the
custody of
Maalkhana
Officer.
Page 2 and
3 of the
Response.
sealed and
produced
before the
Court and
then stored
in
Maalkhana
after entry
in registers.
Pg. No. 3 of
submission
by
Bihar
Govt.
deployed at
all
NDPS
Maalkhana
stores. Case
property
register No.
19
is
maintained.
Procedure as
per
and
Punjab Police
rules 1934.
Inspection
by gazette
officers.
@ pg.no. 16
and 17 of
submission
by
Punjab
Govt.
reports
obtained
from
all
concerned
regarding
seized/
storage of
NDPS.
Stock
Register is
maintained
by
field
units
and
periodical
checking is
done.
@ pg. 121
of
submission
of Haryana
Govt.
safely kept in
Malkhana
under lock.
No
more
details
mentioned.
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At page 4 of
the
Response.
Tamil Nadu
Directorate of
Revenue
Intelligence
NCB Zonal
Officer,
Jodhpur
NCB Zonal
Office,
Chandigarh
Customs
and Central
Excise
No
such
instance has
arisen.
The
sealed
contained
containing the
seized goods is
handed over to
Custodian under
proper
documentation.
The inventory,
seizure memo
as well as the
paper seals on
the
sealed
container
are
duly signed by
the
panch
witnesses,
accused
and
seizing officer.
The custodian
are responsible
for appropriate
action
to
prevent
substitution and
pilferage.
As
per
Government
of
India
Notification,
circular 1/89
page 3 of the
Response.
The
seized
goods
are
stored lot wise
and
stored
under proper
lock and key
under
the
supervision of
ITBP Guard.
No one other
than the store
in charge is
authorized to
enter
the
store.
Page 6 of the
Response.
The
seized
contraband is
deposited in
the godown/
malkhana on
the basis of
the
particulars
mentioned in
the
seizure
memo/
panchnama.
Proper
and
secured
packing and
sealing of the
contraband
ensures
its
safety.
Page 11 of
the Response.
West Bengal
The
seized
goods
are
packed
labeled and
sealed by the
Officer
and
are
handed
over to the
officer
in
charge with
copy
of
seizure
list.
Details
are
also
incorporated
in
the
Malkhana
JUDGMENT
Register
having
counter
signed
of
dealing officer.
7. The reports submitted by the State Governments and the Central Agencies further claim that stock registers maintained at the storage sites are periodically checked by the staff mentioned in the reports. Another question that was asked from the State Governments and the Central Agency relates to the condition of the storage facilities, shortage of storage facilities, if any, and whether any steps have been taken or are being taken to remove the deficiencies. Answers to those queries suggest that no proper storage facilities are available in most of the States. For instance, in Gujarat no special storage facility is available for keeping the contraband, which is, therefore, stored in general muddamal room. In Assam the NBC Guwahati Zonal Unit is said to be running from a rented house and one secured room is earmarked for storage with triple locking system under the supervision of the Superintendent. In Imphal, the store room is overflowing with contraband. Since there is shortage of space, pre-trial disposal process
JUDGMENT
has been initiated to decrease congestion in godowns. Although Mizoram Government claims that there is no lack of storage facility, no information as to any specific storage facility being earmarked for the purpose has been provided. In Tripura the enforcement branch is said to be maintaining the malkhana used for storage of contrabands. In Himachal Pradesh there is no storage facility except an old building used for the purpose, while in Chhattisgarh the storage facility is satisfactory but not sufficient for bulk storage. Similarly, Rajasthan has scarcity of storage facility. Jharkhand has no separate storage facility at all whereas Kerala has satisfactory storage facilities only in some of the districts. In Orissa and Bihar the storage facilities are totally insufficient and unsatisfactory. States of Haryana, Madhya Pradesh, Goa, Daman Diu and Dadar & Nagar Haveli and Andhra Pradesh claim to have no problems with storage facility while Tamil Nadu does not have any separate storage.
8. Directorate of Revenue Intelligence has not provided any information while NCB Zonal Office, Jodhpur has no
JUDGMENT
shortage of space. NCB Zonal Office, Chandigarh has reported insufficiency of space and has started the process for construction of a specified storage facility. Customs and Central Excise Authority has reported that their godown is full and no more space is available.
9. In answer to the question as to who is authorised to apply to the Court to destroy the seized contraband and whether there has been any failure or dereliction in making such applications and whether any person having technical knowledge of narcotic drugs and psychotropic substance (natural and synthetic) is associated with the process of destruction of the contraband, the reply submitted by the State Governments suggest that different persons in different States have been authorised to make such applications to the Courts concerned except in Tripura where no particular person is authorised. In some cases Officer-incharge of the Police Station has been authorised while in others the I.O. is also empowered to apply for permission to destroy the contraband. In answer to the question whether any action has been taken against anyone who should have
JUDGMENT
applied for permission to destroy the narcotics but had not done so, State Governments have all answered in the negative implying thereby that either no dereliction of duty has occurred on the part of any officer competent to apply for destruction or no action has been taken for any such dereliction.
10. Similarly, regarding the steps taken at the time of destruction to determine the nature and quantity of the substance being destroyed, the reports submitted by the State Governments give varying answers. There is no uniformity in the procedure adopted by those associated or in charge of the process of destruction. The reports suggest as if adequate steps are taken to prevent damage, loss, pilferage and tampering/substitution of the narcotic drugs and psychotropic substances from the point of search to the point of destruction but there is no uniformity or standard procedure prescribed or followed in that regard. Having said that we must mention that we are in these proceedings concerned with the following three issues only for the present:
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Seizure and sampling of the Narcotic drugs and Psychotropic substances
their storage and
their destruction
Seizure and sampling:
11. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government have in exercise of that power issued Standing Order No. 1/89 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10.05.2007 and the other dated 16.01.2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of the Standing Order 1/89 states that samples must be taken from the seized contrabands on the spot at the time of recovery itself. It reads:
“2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples
JUDGMENT
from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.” Most of the States, however, claim that no samples are drawn at the time of seizure. Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the States or the Central agencies in the matter of drawing of samples. This is, therefore, an area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples.
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12. Section 52A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads:
“Section 52A : Disposal of seized narcotic drugs and psychotropic substances.
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and 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
JUDGMENT
(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.
(3) When an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]”
13. It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner
JUDGMENT
the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States
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claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.
14. Mr. Sinha, learned Amicus, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior
JUDGMENT
officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High
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Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions.
STORAGE:
15. The Narcotic Drugs and Psychotropic Substances Act, 1985 does not make any special provision regulating storage of the contraband substances. All that Section 55 of the Act envisages is that the officer in charge of a Police Station shall take charge of and keep in safe custody the seized article pending orders of the Magistrate concerned. There is no provision nor was any such provision pointed out to us by learned counsel for the parties prescribing the nature of the storage facility to be used for storage of the contraband substances. Even so the importance of adequate storage facilities for safe deposit and storage of the contraband
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material has been recognised by the Government inasmuch as Standing Order No.1/89 has made specific provisions in regard to the same. Section III of the said Order deals with “Receipt of Drugs in Godowns and Procedure” which inter alia provides that all drugs shall invariably be stored in “safes and vaults” provided with double locking system and that the agencies of the Central and the State Governments may specifically designate their godowns for storage purposes and such godowns should be selected keeping in view their security angle, juxtaposition to courts etc. We may usefully extract paras 3.2 to 3.9 comprising Section III supra at this stage for ready reference:
“3.2. All drugs invariably be stored in safes and vaults provided with double-locking system. Agencies of the Central and State Governments, may specifically, designate their godowns for storage purposes. The godowns should be selected keeping in view their security angle, juxtaposition to courts etc.
3.3 Such godowns, as a matter of rule, shall be placed under the over-all supervision and charge of a Gazetted Officer of the respective enforcement agency, who shall exercise utmost care, circumspection and personal supervision as far as possible. Each seizing officer shall deposit the drugs fully packed and sealed in the godown within 48 hours of such seizure, with a forwarding memo indicating NDPS Crime No. as per Crime and Prosecution (C & P Register) under the new law, name of the accused, reference of test memo,
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description of the drugs, total no. of packages/containers etc.
3.4 The seizing officer, after obtaining an acknowledgement for such deposit in the format (Annexure-I), shall hand acknowledged over such to the Investigation Officer of the case along with the case dossiers for further proceedings.
3.5 The officer-in-charge of the godown, before accepting the deposit of drugs, shall ensure that the same are properly packed and sealed. He shall also arrange the packages/containers (case-wise and lot-wise) for quick retrieval etc.
3.6 The godown-in-charge is required to maintain a register wherein entries of receipt should be made as per format at Annexure-II.
3.7 It shall be incumbent upon the Inspecting Officers of the various Departments mentioned at Annexure II to make frequent visits to the godowns for ensuring adequate security and safety and for taking measures for timely disposal of drugs. The Inspecting Officers should record their remarks/observations against Col. 15 of the Format at Annexure-II.
3.8 The Heads of the respective enforcement agencies (both Central and State Governments) may prescribe such periodical reports and returns, as they may deem fit, to monitor the safe receipt, deposit, storage, accounting and disposal of seized drugs.
3.9 Since the early disposal of drugs assumes utmost consideration and importance, the enforcement agencies may obtain orders for pre-trial disposal of drugs and other articles (including conveyance, if any) by having recourse to the provisions of sub-section (2) of Section 52A of the Act.” It is evident from a plain reading of para 3.2 (supra) that storage of all drugs in safes and vaults has been made
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mandatory and that agencies of the Central and the State Governments have been permitted to designate their godowns for storage purposes. It is also clear that keeping in view the importance of protecting the seized drugs against theft, substitution or pilferage the Central Government has prescribed that such godowns shall be placed under the overall supervision and charge of a gazetted officer of the respective enforcement agencies who shall exercise utmost care, circumspection and personal supervision over the storage facilities. The provision contained in paras 3.5, 3.6, 3.7 and 3.8 also are aimed at ensuring that the godown or storage facility is satisfactory and those in-charge of the same are made accountable for its upkeep and effective management. Subsequent Notification including Notification dated 16th January, 2015 have in no way diluted the above requirement. The result is that there is a statutory framework which governs the storage of drugs and matters relating and incidental thereto. The question is whether the said statutory mechanism has been effectively implemented by the Central Government
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agencies and by the State Governments. Our answer regretfully is in the negative. It is evident from the responses received from the State and the Central Government agencies that no notified storage facility-godown has been established for storage of the seized drugs. Even the Narcotics Control Bureau has admitted to using mallkhana of the Courts for storage of the seized drugs in certain cases and in certain circumstances. The Customs and Central Excise Department and DRI have also stated that they have no designated storage facility for storage of contraband. The position in the States is no different. Due to non-availability of any designated godown-facility with adequate vaults and double lock system, the seized contraband is stored in police maalkhana which is a common storage facility for all kinds of goods and weapons seized in connection with all kinds of offences including those specified by the IPC. This is a totally unhappy and unacceptable situation to say the least. It is indeed unfortunate that even after a lapse of 26 years since Standing Order No. 1/89 was issued, the Central
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Government or its agencies and the State Governments have paid little or no attention to the need for providing adequate storage facilities of the kind stipulated in Standing Order No. 1/89 with the necessary supervisory and other controls prescribed in Section III of the said order. The result is that while Standing Order No. 1/89 very early in point of time recognized the need for providing adequate and effective storage facilities by the States and the Central Government agencies, the failure on the part of the Central Government and the State Governments to provide for such storage has defeated, if not completely negated the very purpose underlying the said notification and the provisions made therein. There is as on date hardly any credible protection against theft, replacement, pilferage and destruction of the seized drugs on account of the wholly unsatisfactory and unscientific method of storage of drugs and psychotropic substances which at times hit the headlines in newspapers on account of what is often described by the agencies as “big catch” worth crores of rupees in the international market. What has defied our
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understanding is the neglect on the part of the Central Government and its agencies and the State Governments in realizing the importance of the storage facilities and in providing for the same to prevent hazardous and at times lethal substances with great potential to do harm to those who use the same from being replaced, pilfered, stolen or siphoned out on account of very poor supervision, control or invigilation over such storage facilities. The learned amicus has in that view very rightly argued that there is a complete failure on the part of the Central Government and its agencies as also the State Governments in taking adequate steps for providing proper storage facilities with proper system of supervision and control over the drugs that are stored in the same. It was contended by Mr. Sinha, and in our opinion rightly so, that the cumulative effect of the reports submitted by the States and the Central agencies is that only 16% of the contrabands seized between 2002 to 2012 have been actually disposed of. What happened to the remaining 84% of such seizures is anybody’s guess and if it is still lying in the police maalkhana, why has nobody ever
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bothered to apply for their disposal according to the procedure established by law is hard to fathom. The fact that the States and the Central Government agencies have accepted that no specific register is maintained by the State Police and that general maalkhana register alone is being maintained for the seized drugs shows the neglect of all concerned towards this important aspect and the cavalier manner in which the issue regarding storage of ceased drugs is approached by them. Absence of periodical inspection of the storage facility and the absence of any record suggesting that any inspection has been carried out by any of the officers shows a complete failure bordering criminal negligence by officers who are supposed to be taking action in this regard but have failed to do so.
16. The menace of drugs in this country, as observed earlier has alarming dimensions and proportions. Studies based on conferences and seminars have very often shown that the menace is deep rooted not only because drug lords have the money power and transnational links but also because the enforcement agencies like the Police and at
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times politicians in power help them in carrying on what is known to be a money spinning and flourishing trade. We only hope that the failure of the Central Government agencies and the State Governments in providing what is the bare minimum in terms of infrastructure required to arrest the growing menace and prevent pilferage and re-circulation of drugs back into the market is not on account of any unholy connect between the drug traffickers and the enforcement agencies. We would comfort ourselves by presuming them to be relatable only to apathy and indifference and hope that the system does not get corrupted by continued neglect lest all hopes are lost in the fight against drug menace which are eating into the vitals of our society. It is in that spirit that we deem it necessary to issue appropriate directions to the Central Government agencies and to the States to set up adequate storage facilities with effective supervisory and regulatory controls as prescribed in Notification No. 1/89.
Disposal of Drugs
:
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17. Section 52A as amended provides for disposal of the seized contraband in the manner stipulated by the Government under Clause 1 of that Section. Notification dated 16th January, 2015 has, in supersession of the earlier notification dated 10th May, 2007 not only stipulates that all drugs and psychotropic substances have to be disposed off but also identifies the officers who shall initiate action for disposal and the procedure to be followed for such disposal. Para 4 of the Notification inter alia, provides that officer-in-charge of the Police Station shall within 30 days from the date of receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52A(2) in terms of Annexure 2 to the said Notification.
18. Sub-para (2) of Para (4) provides that after the Magistrate allows the application under sub-section (3) of Section 52A, the officer mentioned in sub para (1) of Para
(4) shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of seized items to
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the Chairman of the Drugs Disposal committee for a decision by the Committee on the question of disposal. The officer shall also send a copy of the details along with the items seized to the officer in-charge of the godown. Para (5) of the notification provides for constitution of the Drugs Disposal Committee while para (6) specifies the functions which the Committee shall perform. In para (7) the notification provides for procedure to be followed with regard to disposal of the seized items, while para (8) stipulates the quantity or the value upto which the Drugs Disposal Committee can order disposal of the seized items. In terms of proviso to para (8) if the consignments are larger in quantity or of higher value than those indicated in the table, the Drugs Disposal Committee is required to send its recommendations to the head of the department who shall then order their disposal by a high level Drugs Disposal Committee specially constituted for that purpose. Para (9) prescribes the mode of disposal of the drugs, while para (10) requires the Committee to intimate to the head of the Department the programme of destruction and vest the
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head of the Department with the power to conduct a surprise check or depute an officer to conduct such checks on destruction operation. Para (11) deals with certificate of destruction while paras (12) and (13) deal with details of sale to be entered into the godown register and communication to be sent to Narcotic Control Bureau.
19. There are two other aspects that need to be noted at this stage. The first is that notification dated 16th January, 2015 does not in terms supersede Standing Order No. 1/89 insofar as the said Standing Order also prescribes the procedure to be followed for disposal of Narcotic Drugs and Psychotropic and controlled Substances and Conveyances. Specific overriding of the earlier Standing Order would have avoided a certain amount of confusion which is evident on account of simultaneous presence of Standing Order No. 1/89 and notification dated 16th January, 2015. For instance in para (1) of Standing Order No. 1/89 only certain narcotic drugs and psychotropic substances enumerated therein could be disposed of while notification dated 16th January, 2015 provides for disposal of all Narcotic Drugs and
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Psychotropic and controlled Substances and Conveyances. Again in terms of Standing Order No. 1/89 the procedure for making of application was marginally different from the one stipulated in Notification dated 16th January, 2015 not only insofar as the procedure related to the officers who could make the application is concerned but also in relation to the procedure that the DDC would follow while directing disposal. In both the notifications are prescribed the limits upto which the disposal could be directed. In case of excess quantity the disposal under the Standing Order No. 1/89 had to be done in the presence of the head of the Department whereas according to notification of 2015 in the event of excess quantity or value the disposal has to be by a high level Drug Disposal Committee to be constituted by the head of the Department. Again while Standing Order No. 1/89 specifically required the approval of the Court for disposal, notification dated 16th January, 2015 does not stipulate such approval as a specific condition. Be that as it may, to the extent the subsequent notification prescribes a different procedure, we treat the earlier notification/Standing Order
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No. 1/89 to have been superseded. In order to avoid any confusion arising out of the continued presence of two notifications on the same subject we make it clear that disposal of Narcotic Drugs and Psychotropic and controlled Substances and Conveyances shall be carried out in the following manner till such time the Government prescribes a different procedure for the same:
(1) Cases where the trial is concluded and proceedings in appeal/revision have all concluded finally: In cases that stood finally concluded at the trial, appeal, revision and further appeals, if any, before 29th May, 1989 the continued storage of drugs and Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is of no consequence not only because of the considerable lapse of time since the conclusion of the proceedings but also because the process of certification and disposal after verification and testing may be an idle formality. We say so because even if upon verification and further testing of the seized contraband in such already concluded cases it is found that the same is either replaced, stolen or pilferaged,
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it will be difficult if not impossible to fix the responsibility for such theft, replacement or pilferage at this distant point in time. That apart, the storage facility available with the States, in whatever satisfactory or unsatisfactory conditions the same exist, are reported to be over-flowing with seized contraband goods. It would, therefore, be just and proper to direct that the Drugs Disposal Committees of the States and the Central agencies shall take stock of all such seized contrabands and take steps for their disposal without any further verification, testing or sampling whatsoever. The concerned heads of the Department shall personally supervise the process of destruction of drugs so identified for disposal. To the extent the seized Drugs and Narcotic Substances continue to choke the storage facilities and tempt the unscrupulous to indulge in pilferage and theft for sale or circulation in the market, the disposal of the stocks will reduce the hazards that go with their continued storage and availability in the market.
(2) Drugs that are seized after May, 1989 and where the trial and appeal and revision have also been finally disposed of:
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In this category of cases while the seizure may have taken place after the introduction of Section 52A in the Statute book the non-disposal of the drugs over a long period of time would also make it difficult to identify individuals who are responsible for pilferage, theft, replacement or such other mischief in connection with such seized contraband. The requirement of para 5.5 of standing order No. 1/89 for such drugs to be disposed of after getting the same tested will also be an exercise in futility and impractical at this distant point in time. Since the trials stand concluded and so also the proceedings in appeal, Revision etc. insistence upon sending the sample from such drugs for testing before the same are disposed of will be a fruitless exercise which can be dispensed with having regard to the totality of the circumstances and the conditions prevalent in the maalkhanas and the so called godowns and storage facilities. The DDCs shall accordingly take stock of all such Narcotic Drugs and Psychotropic and controlled Substances and Conveyances in relation to which the trial of the accused persons has finally concluded and the proceedings have
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attained finality at all levels in the judicial hierarchy. The DDCs shall then take steps to have such stock also destroyed under the direct supervision of the head of the Department concerned.
(3) cases in which the proceedings are still pending before the Courts at the level of trial court, appellate court or before the Supreme Court: In such cases the heads of the Department concerned shall ensure that appropriate applications are moved by the officers competent to do so under Notification dated 16th January, 2015 before the Drugs Disposal Committees concerned and steps for disposal of such Narcotic Drugs and Psychotropic and controlled Substances and Conveyances taken without any further loss of time.
20.
To sum up we direct as under:
(1) No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under
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Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub-Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading ‘seizure and sampling’. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order.
(2) The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized Narcotic Drugs and Psychotropic and controlled Substances and Conveyances duly equipped with vaults and double locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as
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stipulated in Standing Order No. 1/89 to ensure proper security against theft, pilferage or replacement of the seized drugs.
(3) The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts.
(4) Disposal of the seized drugs currently lying in the police maalkhans and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading ’disposal of drugs’.
21. Keeping in view the importance of the subject we request the Chief Justices of the High Courts concerned to appoint a Committee of Judges on the administrative side to supervise and monitor progress made by the respective States in regard to the compliance with the above directions and wherever necessary, to issue appropriate directions for a
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speedy action on the administrative and even on the judicial side in public interest wherever considered necessary.
22. List the appeal for final hearing now on an early date.
……………………….…….…CJI.
(T.S. THAKUR)
………………………….…..……J. (KURIAN JOSEPH) New Delhi January 28, 2016