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,JUDGMENTsampling, 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 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 JUDGMENT 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 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 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 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 JUDGMENT 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? (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 ofthe 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? (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?”JUDGMENT
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 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 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%) (100%) Others 85.125 kg + 103 0 Capsules + 81 Injections 26 Amp 2. ASSAM (The Information pertains only to the period of 2010-2012) 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 Ganja 45 Kg 0 45 kg Heroin 3.74 kg 0 3.74 kg Charas 48.853 kg 0 48.853 kg Poppy 100 kgs 0 100 kgs Straws Methqualo 1676 kgs 0 1676 kgs ne Note:- No destruction of narcotic drugs and psychotropic substances have taken place at Patna zonal unit. 4. CHHATTISGARH Ganja 1,03,622.140 kg 3281.570 kg 1,00,340.57 Kg (96.77%) Cannabis 52478 (Nos) 380 (Nos) 52098 (Nos) Plants (92.7%) Sugar Opium 1.460 kg 0 1.460 kg (100%) JUDGMENT Opium 1558 pieces 0 1558 pieces Poppy Plant (100%) Green 3600 kg 0 3600 kg (100%) Opium Plant
5.CUSTOMS AND CENTRAL EXCISE Opium 367.007 kg 658.525 kg Destroyed more Morphine 58.393 kg 190 kg + 88930 Pcs 58.203 kg Injections (99.6%) (55.3%) Ganja 484124.056 kg 8,43,008.559 kg Destroyed more Hashish 77350.076 kg 12298.578 kg Destroyed more (100%)
6.CHANDIGARH Contraband By relevant 900.179 Kgs 2305.444 Kgs authorities (71%) 3205.623 Kgs Morphine 58.393 kg 190kg + 88930 Pcs 58.203 kg Injections (99.6%) (55.3%) Ganja 484124.056 kg 8,43,008.559 kg Destroyed more Hashish 77350.076 kg 12298.578 kg Destroyed more (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 :-Contraba 8891.8373 680.376 kg 8211.4613 kg The Response by the police heads are as follows:-Contraban 52944.577 kg 32443.456 kg 20500.601 d (38.72%) (Hashish, Cocaine, Ganja, Heroin etc.) Contraban 1020669 0 1020669 ds (100%) (Chemical Substance s in Tablets, Injections )
8.DAMAN AND DIU The UT Daman and Diu has informed the Total quantity by way of a detailed chart: Contraba 25.827 kgs 000 kgs 25.827 Kgs nd (100%)
9.DIRECTORATE OF REVENUE INTELLIGENCE Contraba 174185.687 kg 2859.448 Kg 171326.239
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: Charas 1421.14 kg 15.056 kgs 1406.084 kg (98.9%) (100%) Sugar Heroin 3.066 kg 0 (981 gms of Heroin 3.066 kg was destroyed in (100%) 2000, however all the JUDGMENT seizures have been made post 2003) Others 3766.126 kg + 525 kgs 3241.126 kgs 299 ltrs. + 1022 (86.05%) + 229 Tablets ltrs (100%) + 1022 Tablets (100%)
11.GOA The UT Chandigarh has informed the Total quantity by way of a detailed chart: Contraba 548.746 kgs. 000 kgs 548.7476 kgs nd (100%)
12.HARYANA (79%) (92.64%) Opium 1086.387 kg 1972.860 Destroyed more (49.14%) Heroine 1.046 kg 1.300 kg Destroyed more Brown 2.001 kg 1.003 kg 998 kg 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: JUDGMENT Contraba 17026.714 1856.913 15169.801
14.JHARKHAND Ganja 1793.381 kg 0 (area of cultivation 1793.381 kg has been destroyed) (100%) (100%) Brown 1.576 kg 0 1.576 kg Sugar (100%) Heroine 546 kg 0 546 kg (100%)
15.KERALA 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 8.432 kg 12.058 kg Destroyed more Sugar than seized (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 years) years) JUDGMENT Contraba By NCB nd 000 kgs 366.838 Kgs 366.838 Kgs (100%) 12140.592 15151.041 By relevant (55%) 27291.633 Kgs
17.MAHARASHTRA 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%) (92.31%) Cocaine 11.049 kg 0 kg 11.049 kg (100%)
18.MANIPUR Heroin 37.534 kg. 12.498 kg 25.036 kg (66.072%) (Kindly refer to (7.45%) the Note) Opium 233.985JUDGMENTkg 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. Seized (In 10 Destroyed (in 10 In Kgs In Kgs In Kgs Contraba By Police- By Police By Police nd 804376.528 61384.805 -742991.723 Kgs (92%) BY NCB Destroyed 348 kg more than seized
20.Ministry of Home Affairs NCB Contraban By relevant d authorities 4476.482 kgs 5344.12 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. years) years) JUDGMENT Contraba By Police 0.000 By Policend 88241.741 Kgs 88241.741 Kgs (100%) 0.000 By Excise By Excise 34520.854 Kgs 34520.854 Kgs (100%) (100%)
22.PUNJAB Poppy 8,93,948.452 kg 4,00,678.069 kg 4,93,270.383 kg Husk (55.17%) (80.43%) Smack 20045.293 kg 104.631 kg 19940.662 (99.47%)
23.RAJASTHAN Brown 146.996 kg 23.381 kg 123.615 kg (98.12%) (70.05%) (69.99%) Charas 935.602 kg 1192.309 Destroyed more (98.84%) Poppy 99684.05JUDGMENTkgs 1,34,652.55 kg Destroyed more Straw than seized.
24.SIKKIM N-10 Capsure 9156 ** 9156 (100%) Spasmo 277367 ** 277367 Proxyvon (100%) Capsule Corex/ 3033 ** 3033 (100%) Phensidylere codex 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 Ganja 656778 kg 19366.98 kg 637411.02 jg (Dry + (97.051%) Green) 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 Sugar (96.25%) Hash Oil 10 kg 1 kg 9 kg (90%) Tidigesic 13627 vials 4095 vials 9532 vials inj. (69.94%) Norphine 112 amps 0 112 amps JUDGMENT (100%) Bosikka 9 0 9 (100%) Diazepa 9.085 kg + 2706 4.51 (kg or vial not m vials sure) Poppy 246.75 kg 125.05 kg 121.7 kg Cap/Stra (49.32%) ws Avil 350 tabs + 55 0 350 tabs + 55 vials vials
26.TRIPURA Ganja 9178.8 2642.5 kg 6536.3 kg (71.21%) Ganja 436 kg 87 kgs 349 kgs Dust (80.04%)
27.UTTAR PRADESH There is huge discrepancy between the Quantity seized and the Quantity destroyed. (84.5%) (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%) (75.44%) Intoxicati 3658.065 kg 1035.275 kg 2622.79 Kg ng (71.69%) Powder (Cocaine) JUDGMENT Brown 51.455 kg 1.1 kg 51.355 kg Posta 16224.591 kg 5081.988 kg 11,142.603 kg Drug (68.67%)
28.UTTARAKHAND (73.60%) Doda 6783.765 kg 330.459 kg 6453.306 (95.12%) (93.567%) Heroine 154.454 kg 0 154.454 kg (100%) Intoxicati 22413 Nos 4668 Nos. 17745 Nos ng (79.17%) Tablets (54.686%) Smack 8.761 kg + 1022 0.432 kg + 530 8.329 kg packets (95.06%) + 492 Packets Packets (48.140%) Injection 1924 Nos 5 Nos. 1919 Nos (99.74%) Brown .389 kg 0 .389 kg (100%) Sugar
29.WEST BENGAL
Contraba 88520.3317 kg 0 88520.3317 kg
nd (100%)
Note:- West Bengal has stated that it does not have anyimmediate records JUDGMENTavailable 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
Delhi Govt. Gujarat Govt. Guwahati Govt. Yes, specified store for No specific store. NBC Guwahati Zonal Unit is storage of the seized running from a rented house contraband in Delhi Zonal and one secured room is Unit. earmarked as storage place.
Imphal Govt. Mizoram Govt. Tripura Govt. Stored in godown of No specific store No specified store. NCB -1 after sealing.
Meghalaya Govt. Uttar Pradesh Govt. Maharashtra Govt.,
Goa and Daman Diu Excise Malkhana is UP has no specific place for No specific store in generally used to store storage of the narcotic Maharashtra for storage. contrabands. drugs. All district Excise office In Goa: Malakhana at Police have their own Malkhana Station. rooms.
Daman & Diu and Dadar &
Nagar Haveli: Kept in
Malkhana Police Station.
Then sent to storage of
competent Court after
chargesheet is filed.
Himachal Pradesh Chhattisgarh Govt. Andhra Pradesh
Govt. 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 Orissa Govt. Bihar Govt.
Govt. Yes, NCB Zonal Unit Indore No specific store. Patna Zonal Unit of NCB has ahs well-secured specific specified room. maalkhana (Submissions by NCB Indore Zonal unit) Withdrawal only under order No specific Store for storage of the Court. JUDGMENT after seizure by Police Station. (Submissions by Police Heads)
Punjab Govt. Haryana Govt. Chandigarh Govt. No specified store. Malkhana in all police A Room called Malkhana is
stations for storage of specifically designated to
contraband Narcotics Drugs keep the seized
and Psychotropic contrabands.
Substances.
Tamil Nadu Customs and Central Directorate of
Excise Revenue
Intelligence No Specific storage space. No specific storage is No specific store of its own.
available
NCB, Jodhpur Zone NCB, Chandigarh West Bengal
Zone Yes, But no sub-zone A separate room has been The seized goods are stored available. specified for storage of in Police Station Malkhana
seized contraband. 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 Gujarat Guwahati Imphal Mizoram Tripura Govt. Govt.JUDGMENTGovt. Govt. Govt. Govt.
Proper Writer head Complete Complete Utmost care in Malkhana
entry in of Police process of process of weighing and officer
malkhana station classification classification measurements incharge
register maintains and and by carefully
and muddamal weighing of weighing of officer-in-char keeps the
malkhana register drugs along drugs along ge. contrabands
incharge which has with with in the
and complete measures of measures of @page 101 of malkhana
properly details. All prevention prevention submissions by after
locked and subsequent of pilferage of pilferage Mizoram Govt. maintaining
guarded withdrawal mentioned mentioned register.
and at at
@Pg 10 of redisposition @Pg.No.3 of
Delhi Govt. are also @ Pg.No.52 @ Pg. No. 74 submission
submission reflected in of Guwahati of Imphal by Tripura
the Govt. Govt.
muddamal submission submission Govt.
register
@Pg.2 of
Gujarat
Govt.
submission
Meghalaya Uttar Maharashtr Himachal Chhattisgar Andhra
Govt. Pradesh a Govt., Goa Pradesh h Govt. Pradesh
Govt. and Daman Govt. Govt.
Diu.
General After Seizure Contraband NDPS is Details of all During the duty of the is packed and seized by steps to storage the detecting concerned kept safe investigatin determine details are officer to drug is with g officer. the nature entered in weigh, seal weighed. Muddemal After and quantity storage room the Clerk in samples are of the register. contraband separate taken, the substance Store room is with cupboard. same is being store duly sealed
Subsequentlsignatures seized by and measures and armed of civilian y a sample is @ Pg.6. I.O. affixing to prevent guards/station
taken out ofwitnesses his own seal substitution watch are
the bag andwith proper and later and pilferage posted.
both areentry in resealed by from stores
weighed Goa:register SHO before elaborated @
separately. Contrabandand lock it. consigning Pg.No. 3 of
packed and @ pg.no. 2 of it to the submissions sealed at the A.P. Govt.@pg.7 safe by spot of submissionAnnex-A-2 custody in Chhattisgarh Both the seizure.of sample and Entry in police Govt.Meghalaya main stock Mudamma, malkhana ofGovt. are wrapped register to the PoliceSubmission in a piece of show chain of Station./ cloth and are movements JUDGMENT
sealed. and its---------
custody. @ @ Pg.No.3 Acc. To pg. 8. of HP Govt. Report of The sample submission. Comm. Of is sent for Customs @
forensic Daman &Pg.67:
testing and Diu and
the main Dadar &Stored in
packed is NagarCentral
sealed and Haveli:Godown in
kept in the there aresafes and
malkhana. very remotevaults with double chances of locking substitution/ system @ Pg.6 of pilferage as under submissions the stored
command by U.P. Govt. goods are of a subject to Gazetted periodical Officer. inspection.
Page 9 of the
Response
Rajasthan Sikkim Uttarakhand Jharkhand Kerala Karnataka
Govt. Govt. Govt. Govt. Govt. Govt.
No specific NDPS is NDPS sample Material During answer. packed and is sent to objects is recovery a However sealed forensic sealed and pinch of the packing under laboratory. packed substance is resources for stamp of For properly. tested with the storage are IO and preventing help of field used nature and substitution, drug test kit for according to quantity details an indicative
Page 9 ofquantity and recorded in entered into test. After
thenature of the presence of station diary positive
Responsecontraband. individual of the indicative
witnesses. concerned result, the
police officer makes
Page 11 of station. detailed @ Pg.No. 2 the Complete inventory. The of Response. safety seized goods submission measures are stored in by Rajasthan mentioned in the Govt. Annex-3 with departmental
the govt. godown or the
submission. judicial godown
and only a
representative
sample is sent
Page 5 of the to the
Response laboratory for JUDGMENT chemical
analysis.
@ pg. 10 of
submission by
Karnataka
Govt.
Madhya Orissa Bihar Govt. Punjab Haryana Chandigarh
Pradesh Govt. Govt. Govt. Govt.
Govt.
By NCB Seized Seized Police Weekly and Seized Indore Zonal drugs are drugs are officials fortnightly contraband is
Office. sealed in sealed and deployed at reports safely kept in
such a produced all NDPS obtained Malkhana Seized manner as before the Maalkhana from all under lock. contraband to minimize Court and stores. Case concerned wrapped in the chances then stored property regarding transparent of pilferage. in register No. seized/ polythene Maalkhana 19 is storage of No more and then in after entry maintained. NDPS. details white cloth in registers. Procedure as Stock mentioned. before After per and Register is sealing and producing Punjab Police maintained signing it. the seized rules 1934. by field Quality and goods with Pg. No. 3 of Inspection units and amount of permission submission by gazette periodical seized drug of court the by Bihar officers. checking is is also drugs are Govt. done. mentioned in deposited in @ pg.no. 16 the packet. maalkhana and 17 of
in sealed submission @ Pg. 5 of condition by Punjab @ pg. 121 submissions with proper Govt. of by M.P. Govt. entry and submission
under the of Haryana
custody of Govt.
Maalkhana By police Officer. heads of districts:
A seizure Page 2 and memo is 3 of the again Response. prepared u/s 55 of NDPS Act at the time of storage in the police station JUDGMENTmalkhana and sealed by Station House Officer.
Necessary entries are made in the Rojnamcha and seized property register maintained in the police station.
At page 4 of the Response.
Tamil Nadu Directorate of NCB Zonal NCB Zonal Customs
Revenue Officer, Office, and Central
Intelligence Chandigarh Excise
Jodhpur
No such The sealed As per The seized The seized instance has contained Government goods are contraband is arisen. containing the of India stored lot wise deposited in
seized goods is Notification, and stored the godown/
handed over to circular 1/89 under proper malkhana on
Custodian under page 3 of the lock and key the basis of
proper Response. under the the
documentation. supervision of particulars
The inventory, ITBP Guard. mentioned in
seizure memo No one other the seizure
as well as the than the store memo/
paper seals on in charge is panchnama.
the sealed authorized to Proper and
container are enter the secured
duly signed by store. packing and
the panch sealing of the
witnesses, contraband
accused and ensures its
Page 6 of the seizing officer. safety.
Response. The custodian
are responsible Page 11 of
for appropriate the Response.
action to
prevent
substitution and
pilferage.
West Bengal JUDGMENT 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
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
JUDGMENTfor 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
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
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 JUDGMENT applications to the Courts concerned except in Tripura where
no particular person is authorised. In some cases Officer-in-
charge 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
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 JUDGMENT 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:
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 16.01.2015JUDGMENTdeal 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
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.
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
(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
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
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 JUDGMENT 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
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
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 JUDGMENT
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
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 JUDGMENT
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,
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. JUDGMENT
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
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
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
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
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
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
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 :
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
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
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 JUDGMENT 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
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
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,
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:
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
JUDGMENTcan 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
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
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 JUDGMENT
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
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’.
JUDGMENT21. 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
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.
(KURIAN JOSEPH) New Delhi January 28, 2016