There are two 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 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 up to 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notification/Standing Order No. 1/89 to have been superseded.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 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, 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:
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 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.
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 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 maalkhanas 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’.
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.
(Union of India Versus Mohanlal & Anr. Crl Appeal .652 of 2012 SC January 28, 2016)
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