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TMI Blog2016 (5) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 maalkhana 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 . - Criminal Appeal No. 652 of 2012 - - - Dated:- 28-1-2016 - T.S. Thakur, CJI and Kurian Joseph, J. Shri Ranjit Kumar, SG, Ajit Kumar Sinha, AC, A.K. Panda, Sr. Advocate, Ms. Binu Tamta, Ms. Sushma Manchand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years including opium, poppy husk, charas, etc., apart from modern narcotic substances. The report suggested that 39 lakhs sedatives and narcotic tablets, 1.10 lakhs capsules, over 21,000 drug syrups and 1828 sedative injections apart from 8 kgs. of smack and 84 kgs. of ganja were awaiting disposal in Bathinda Police stores alone. The position was, according to Mr. Sinha, no better in other States especially those situate along the international borders. It was argued by the Amicus Curiae that without proper data from the authorities concerned, it was not possible to take stock of the magnitude of the problem no matter challenges posed by rampant drug abuse had acquired alarming proportions affecting the youth, some of whom are driven to commission of crimes on account of deleterious effects of drug abuse. 3. It was in the above backdrop that by an order dated 3rd July, 2012 passed in Criminal Appeal No. 652 of 2012 this Court directed collection of information from the police heads of each one of the States through the Chief Secretaries concerned in regard to seizure, storage, disposal and destruction of the seized contraband and judicial supervision over the same. Specific qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... check stock register maintained at the site of storage and if so, by whom? Is there any periodical check of such register? If so, by whom? Is any record regarding such periodic inspection maintained and in what form? (v) What is the condition of the storage facilities at present? Is there any shortage of space or any other infrastructure lacking? What steps have been taken or are being taken to remove the deficiencies, if any? (vi) Have any circulars/notifications/directions/guidelines been issued to competent officers for care and caution to be exercised during storage? If so, a copy of the same be produced. 12.3 Disposal/Destruction (i) What narcotic drugs and psychotropic substances (natural and synthetic) have been destroyed in the last 10 years and in what quantity? Provide yearwise and districtwise details of the destruction made by the relevant authority. If no destruction has taken place, the reason therefor. (ii) Who is authorised to apply for permission of the court to destroy the seized contraband? Has there been any failure or dereliction in making such applications? Whether any person having technical knowledge of narcotic drugs and psy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 psychotropic substance qua each State for the last 10 years may be summarised as under : Details of seizure and disposal of drugs (State wise) 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%) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. 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%) 6. Chandigarh Item Total Quantity Seized (in 10 years) Total Quantity Destroyed (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item Total Quantity Seized (in 10 years) By relevant authorities Total Quantity Destroyed (in 10 years) Difference Contraband 174185.687 kg 2859.448 Kg 171326.239 (98.3%) 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09%) 14. Jharkhand Item Total Quantity Seized (in 10 years) Total Quantity Destroyed (in 10 years) Difference Ganja 1793.381 kg 0 (area of culti-vation 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%) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Item Total Quantity Seized (in 10 years) in kgs Total Quantity Destroyed (in 10 years) in kgs Difference in kgs Contraband By Police - 804376.528 By Police 61384.805 By Police -742991.723 kgs (92%) BY NCB 348 kg Destroyed more than seized 20. Ministry of Home Affairs NCB Item Total Quantity Seized (in 10 years) Total Quantity Destroyed (in 10 years) Difference Contraband By relevant authorities 5344.12 Kgs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 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%) Corex/Phensi-dylere 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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%) Intoxi-cating 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 (95.12%) Opium 28.899 kg 1.859 kg 27.04 kg (93.567%) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of prevention of pilferage mentioned at @ Pg. No. 52 of Guwahati Govt. submission Complete process of classification and weighing of drugs along with measures of prevention of pilferage mentioned at @ Pg. No. 74 of Imphal Govt. submission Utmost care in weighing and measurements by officer-in-charge. @ page 101 of submissions by Mizoram Govt. Malkhana officer in-charge carefully keeps the contrabands in the malkhana after main-taining register. @ Pg. No. 3 of sub-mission by Tripura Govt. Meghalaya Govt. Uttar Pradesh Govt. Maharashtra Govt., Goa and Daman Diu. Himachal Pradesh Govt. Chhattisgarh 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 syste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 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 Mal-khana 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 spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson is authorised. In some cases Officer-incharge of the Police Station has been authorised while in others the I.O. is also empowered to apply for permission to destroy the contraband. In answer to the question whether any action has been taken against anyone who should have 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 52A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddresses 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 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 godown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he enforcement agencies may obtain orders for pre-trial disposal of drugs and other articles (including conveyance, if any) by having recourse to the provisions of sub-section (2) of Section 52A of the Act. It is evident from a plain reading of Para 3.2 (supra) that storage of all drugs in safes and vaults has been made mandatory and that agencies of the Central and the State Governments have been permitted to designate their godowns for storage purposes. It is also clear that keeping in view the importance of protecting the seized drugs against theft, substitution or pilferage the Central Government has prescribed that such godowns shall be placed under the overall supervision and charge of a Gazetted Officer of the respective enforcement agencies who shall exercise utmost care, circumspection and personal supervision over the storage facilities. The provision contained in paras 3.5, 3.6, 3.7 and 3.8 also are aimed at ensuring that the godown or storage facility is satisfactory and those in-charge of the same are made accountable for its upkeep and effective management. Subsequent Notification including Notification dated 16th January, 2015 have in no way diluted the above req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the agencies as big catch worth crores of rupees in the international market. What has defied our understanding is the neglect on the part of the Central Government and its agencies and the State Governments in realizing the importance of the storage facilities and in providing for the same to prevent hazardous and at times lethal substances with great potential to do harm to those who use the same from being replaced, pilfered, stolen or siphoned out on account of very poor supervision, control or invigilation over such storage facilities. The learned amicus has in that view very rightly argued that there is a complete failure on the part of the Central Government and its agencies as also the State Governments in taking adequate steps for providing proper storage facilities with proper system of supervision and control over the drugs that are stored in the same. It was contended by Mr. Sinha, and in our opinion rightly so, that the cumulative effect of the reports submitted by the States and the Central agencies is that only 16% of the contrabands seized between 2002 to 2012 have been actually disposed of. What happened to the remaining 84% of such seizures is anybody s guess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of but also identifies the officers who shall initiate action for disposal and the procedure to be followed for such disposal. Para 4 of the Notification inter alia, provides that officer-in-charge of the Police Station shall within 30 days from the date of receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52A(2) in terms of Annexure 2 to the said Notification. 18. Sub-para (2) of Para (4) provides that after the Magistrate allows the application under sub-section (3) of Section 52A, the officer mentioned in sub-para (1) of Para (4) shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of seized items to the Chairman of the Drugs Disposal Committee for a decision by the Committee on the question of disposal. The officer shall also send a copy of the details along with the items seized to the officer-in-charge of the godown. Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut also in relation to the procedure that the DDC would follow while directing disposal. In both the notifications are prescribed the limits upto which the disposal could be directed. In case of excess quantity the disposal under the Standing Order No. 1/89 had to be done in the presence of the head of the Department whereas according to notification of 2015 in the event of excess quantity or value the disposal has to be by a high level Drug Disposal Committee to be constituted by the head of the Department. Again while Standing Order No. 1/89 specifically required the approval of the Court for disposal, Notification dated 16th January, 2015 does not stipulate such approval as a specific condition. Be that as it may, to the extent the subsequent notification prescribes a different procedure, we treat the earlier Notification/Standing Order No. 1/89 to have been superseded. In order to avoid any confusion arising out of the continued presence of two notifications on the same subject we make it clear that disposal of Narcotic Drugs and Psychotropic and Controlled Substances and Conveyances shall be carried out in the following manner till such time the Government prescribes a differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 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 offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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