Union of India Vs Mohanlal

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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

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 7

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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

0

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 8

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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

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

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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

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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 20

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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

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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

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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

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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

Police officials

Weekly and fortnightly

Seized contraband is

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Page 25

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

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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 27

Page 28

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

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Page 29

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-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

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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

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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

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(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 34

Page 35

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

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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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Page 45

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 53

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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

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