UNION OF INDIA Vs MOHANLAL
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: Crl.A. No.-000652-000652 / 2012
Diary number: 27001 / 2010
Advocates: SHREEKANT N. TERDAL Vs
SANJAY SHARAWAT
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.652 OF 2012
Union of India …Appellant
Versus
Mohanlal & Anr. …Respondents
O R D E R
T.S. THAKUR, J.
1. This appeal has been filed by the Union of India against
the judgment and order of the High Court of Madhya
Pradesh at Indore in Criminal Appeal No.193 of 2008
whereby the High Court has acquitted the respondents of
the charges framed against them under Section 8/18(b)
read with Section 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, primarily for the reason that no
evidence regarding the destruction of the 3.36 Kgs. of
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opium allegedly seized from the respondents had been
provided by the prosecution. In the absence of any evidence
to show that the seized contraband was destroyed as per
the prevalent procedure, the contraband should have been,
according to the High Court, produced before the Trial
Court. The failure of the prosecution to do so, therefore,
implies a failure to prove the seizure of the contraband from
the possession of the respondents.
2. When this appeal came up for hearing before us on
11th April, 2012, Mr. Anoop G. Chaudhary, learned senior
counsel, appearing for the appellant, argued that the High
Court was in error in holding that the procedure prescribed
for destruction of the contraband had not been followed and
the destruction of the seized quantity had not been proved.
In support of his submission he placed reliance upon
Standing Order No.1/89 and Circular dated 22nd February,
2011 issued by the Ministry of Finance, Department of
Revenue, Government of India, impressing upon the Chief
Secretaries of the States and the Union Territories as also
Heads of Police of the States to comply with the instructions
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and the procedure prescribed by the Standing Order. We
had, upon consideration of the submission made by Mr.
Choudhary, passed an order on 11th April, 2012 in which we
said:
“We have been taken through the contents of the Standing Order also which prescribes the procedure for search, disposal and destruction of the seized contraband. We are not, however, very sure whether the said procedure is being followed as it ought to be. The pilferage of the contraband and its return to the market place for circulation is, in our opinion, a major hazard against which the system must guard at all cost if necessary by making suitable changes wherever the same are called for. Before any exercise to that end is undertaken it is necessary to examine whether the procedure is being followed in letter and spirit. For that purpose in view we request Mr. Ajit Kumar Sinha, learned senior counsel to assist this Court as Amicus Curiae and identify if possible, by reference to the standing order and the available material, the weak links in the chain of the procedure of search, disposal or destruction of the narcotics and the remedial steps, if any, needed to plug the holes. To that extent we are inclined to enlarge the scope of this appeal for we are of the view that the hazardous nature of the substance seized in large quantities all over the country must not be let loose on the society because of human failure or failure of the system that is purported to have been put in place.”
3. Pursuant to the above we have heard Mr. Ajit Kumar
Sinha, learned senior counsel, who argued that the
procedure prescribed for destruction of the contraband
seized in different States has not been followed resulting in
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a very peculiar situation arising on account of such failure
and accumulation of the seized drugs and narcotics in large
quantities thereby increasing manifold the chances of
pilferage for re-circulation in the market from the stores
where such drugs are kept. In support of that submission
Mr. Sinha placed reliance upon a press report published in
the timesofindia.indiatimes.com dated 12th July, 2011,
under the heading “Bathinda’s police stores bursting at
seams with seized narcotics“. From a reading of the said
report it appears that the inventory of the drugs seized by
the police over the past many decades include drug seized
as far as back as in the early eighties. Large quantities of
seized drugs are said to have lost their original colour and
texture, making even the task of preparing the inventories
difficult.
4. It was further stated that, not only traditional drugs
like, opium, poppy husk, charas etc. but other drugs and
modern narcotic substances are also awaiting disposal which
includes 39 lakh sedatives and narcotic tablets, 1.10 lakh
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capsules, over 21,000 drug syrups and 1828 sedative
injections apart from 8 kgs. of smack and 84 kgs. of ganja.
5. The position is, according to Mr. Sinha, no better in
some other States like Gujarat, Rajasthan and Bihar whose
boundaries touch international borders. He submitted that
in the absence of proper data from the concerned
authorities it will not be possible to take stock of the
magnitude of the problem no matter challenges posed by
rampant drug abuse have attained formidable proportions
affecting especially the youth and driving them towards
crime and anti-social activities. Our attention was drawn by
Mr. Sinha, to the judgment of this Court in Sunderbhai
Ambalal Desai v. State of Gujarat (2002) 10 SCC 283
where this Court has emphasized the need for a proper and
prompt exercise of the power to destroy the seized
contrabands and recommended supervision by the registry
of the High Court concerned to see that the rules in this
regard are implemented properly. He also drew our
attention to an order dated 3rd December, 2010 passed by
the High Court of Judicature at Patna in which the High
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Court had recommended overhaul of the existing system so
far as the procedure of seizure, sampling and sending of the
seized articles to the FSL is concerned. The Court in that
case noticed that 57% of the samples sent for testing were
pending examination for four years causing delay in the trial
of NDPS cases which was unfortunate to say the least. The
Court also noticed steps to be taken in checking the
despatch of reports from the FSL and recommended a
revamp of the system. A similar order was passed by the
Punjab and Haryana High Court in CWP No.1868 of 2011
where the High Court was informed by the State of Punjab
and Haryana that incinerators for the destruction of such
contrabands and drugs shall be provided by March 2012.
6. Mr. Sinha supplemented his submissions by filing
written submissions relying upon Article 47 of the
Constitution of India and Section 52A of the NDPS Act, 1985
besides Section 451 of the Cr.P.C. to argue that destruction
of seized narcotic drugs is not only a statutory duty but a
constitutional mandate. He also relied upon United Nations
Convention against Illicit Traffic and Narcotic Drugs and
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Psychotropic Substances and urged that India being a
signatory to the Convention had no doubt promptly added
Section 52A to the NDPS Act but much more was required
to be done to reduce the vulnerability of such contrabands
to substitution or theft while in storage in poorly secured
and ramshackle storage facilities. Referring to SAARC
Convention for Narcotic Drugs and Psychotropic Substances,
1990, it was urged by Mr. Sinha that while most of the
countries were committed to elimination of drug abuse from
their society, the ground reality is that there was no will to
take follow up action by the concerned authorities. He,
therefore, prayed for issue of appropriate directions to the
States to furnish information relating to the nature and the
extent of the problem faced by them so that this Court
could, upon consideration of the matter, direct systemic
changes having regard to the procedure followed and the
experience of other countries in the world faced with similar
problems.
7. We find considerable merit in the submissions made by
Mr. Sinha. The problem is both wide-spread and formidable.
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There is hardly any State in the country today which is not
affected by the production, transportation, marketing and
abuse of drugs in large quantities. There is in that scenario
no gainsaying that the complacency of the Government or
the officers dealing with the problem and its magnitude is
wholly misplaced. While fight against production, sale and
transportation of the NDPS is an ongoing process, it is
equally important to ensure that the quantities that are
seized by the police and other agencies do not go back in
circulation on account of neglect or apathy on the part of
those handling the process of seizure, storage and
destruction of such contrabands. There cannot be anything
worse than the society suffering on account of the greed or
negligence of those who are entrusted with the duty of
protecting it against the menace that is capable of eating
into its vitals. Studies show that a large section of the
youth are already victims of drug abuse and are suffering its
pernicious effects. Immediate steps are, therefore,
necessary to prevent the situation from going out of hand.
We, therefore, consider it necessary to direct collection of
the information from the police heads of each one of the
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States through the Chief Secretary concerned on the
following aspects:
Seizure
1. What narcotic drugs and psychotropic substances (natural
and synthetic) have been seized in the last 10 years and
in what quantity? Provide year-wise and district-wise
details of the seizure made by the relevant authority.
2. 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?
3. 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.
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Storage
1. 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?
2. 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?
3. 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?
4. 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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5. 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?
6. 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.
Disposal/ Destruction
1. What narcotic drugs and psychotropic substances (natural
and synthetic) have been destroyed in the last 10 years
and in what quantity? Provide year-wise and district-wise
details of the destruction made by the relevant authority.
If no destruction has taken place, the reason therefor.
2. 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
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synthetic) is associated with the actual process of
destruction of the contraband?
3. 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?
4. What are the steps taken at the time of destruction to
determine the nature and quantity of the substance being
destroyed?
5. 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?
6. 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.
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7. If a facility is not available, where is the contraband sent
for destruction purposes? Under whose supervision and
what is the entire procedure thereof?
8. 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?
Judicial Supervision
1. 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?
2. 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
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subject being taken for timely inspection and destruction
of the drugs?
3. 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?
4. What level officers including the judicial officers are
associated with the process of destruction?
5. At what stages are the magistrates/ judicial officers/ any
other officer of the Court associated with
seizure/storage/destruction of drugs?
6. 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?
7. What is the average time for completion of trial of NDPS
matters?
8. The Chief Secretaries of the States shall ensure that a
questionnaire on the above lines is served upon the Director
General of Police of the State for a report and on receipt of
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the report forward the same to the Registrar General of the
State High Court.
9. The Registrar General of the High Court in each State
shall be the Nodal Officer and shall ensure collection of the
reports from the Chief Secretary of the State concerned,
scrutinise the same, get clarifications and further
information wherever necessary and submit the report to
this Court containing a summary of the information so
collected, as early as possible but not later than three
months from the date of a copy of this order being received
by him.
10. The Registrar Generals shall independently secure from
the concerned District and Sessions Judges, in their
respective States, answer to the queries specified under the
head “Judicial Supervision” within the same period.
11. Chiefs of Central Government agencies viz. Narcotics
Control Bureau, Central Bureau of Narcotics, Directorate
General of Revenue Intelligence and Commissionerates of
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Customs & Central Excise including the Indian Coast Guard
shall issue similar questionnaire to the concerned officers
and submit a report detailing the information required in
terms of this order within three months from today.
12. Post the matter after the reports in terms of the above are
received from all concerned.
……………………….……..……J. (T.S. THAKUR)
………………………….…..……J. (GYAN SUDHA MISRA)
New Delhi July 3, 2012