UNION OF INDIA Vs. MOHANLAL & ANR

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Date of judgment:
03/07/2012
Hon'ble Judges:
T. S. Thakur, GYAN SUDHA MISRA

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 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 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 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 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 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 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. 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 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.

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?

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 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.

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 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 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 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
ENDSHERE