TaxTMI 
TaxTMI 
2016 (5) TMI 500
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....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 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 ....
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.... the officers concerned and to submit their respective reports detailing the information required in 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 ava....
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....at 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? (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 ....
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....n 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 Methqualone 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 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. Injections 58.203 kg (99.6%) Heroine 1658.099 kg 739.687 kg 918.412 kg....
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....on 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, how-ever 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) By relevant authorities Total Quantity Destroyed (in 10 years) Difference Contraband 548.746 kgs. 000 kgs 548.7476 kgs (100%) 12. Haryana Item Total Quantity ....
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.... 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. 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 ....
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.... 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%) Diazepam 9.085 kg + 2706 vials 4.51 (kg or vial not sure) Poppy Cap/Straws 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 years) Total Quantity Destroyed (in 10 years) Difference 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....
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....petent 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 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 availa....
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.... ..... Acc. To Report of Comm. Of Customs @ Pg. 67 : Stored in Central Godown in safes and vaults with double locking system under command of a Gazetted Officer. After Seizure the concerned drug is weighed. Subsequently 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 by U.P. Govt. 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 goods are subject to periodical inspection. Page 9 of the Response NDPS is seized by investigating 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....
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....e police station. At page 4 of the Response. Seized drugs are 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. Pages 2 and 3 of the Response. Seized drugs are sealed and produced before the Court and then stored in Maalkhana after entry in registers. Pg. No. 3 of submission by Bihar Govt. Police officials 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. nos. 16 and 17 of submission by Punjab Govt. Weekly and fortnightly 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. Seized contraband is safely kept in Maalkhana under lock. No details mentioned. Tamil Nadu Directorate of Revenue Intelligence NCB Zonal Officer, Jo....
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....nt 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 shortage of space. NCB Zonal Office, Chandigarh has reported insufficiency of space and has started the process for construction of a specified storage facility....
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....re 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 10-5-2007 and the other dated 16-1-2015 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 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 ....
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.... 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 (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 th....
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.... 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 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 52A in particular, does not brook any delay in the matter of making of an appl....
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....th 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 overall 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, 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 th....
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....nism has been effectively implemented by the Central Government 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 malkhana 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 Government or its agencies ....
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....e 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 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 th....
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....tification 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 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 ....
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.... 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, 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 furt....
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....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 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....