Page 1

1

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

Page 2

2

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

Page 3

3

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

Page 4

4

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

Page 5

5

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

Page 6

6

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

Page 7

7

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.

Page 8

8

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

Page 9

9

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.

Page 10

10

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?

Page 11

11

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

Page 12

12

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.

Page 13

13

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

Page 14

14

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

Page 15

15

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

Page 16

16

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