The legislative scheme of pre-trial destructionor lawful disposal of narcotic drugsand psychotropic substances in India

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Author: R. K. TEWARI
Pages: 11 to 13
Creation Date: 1992/01/01

The legislative scheme of pre-trial destructionor lawful disposal of narcotic drugsand psychotropic substances in India

R. K. TEWARI Director, Ministry of Finance, Department of Revenue, New Delhi

ABSTRACT

The present article provides, a description of the practice of pre-trial destruction of seized narcotic drugs and psychotropic substances in India as provided for in the Code of Criminal Procedure, 1973, and the Customs Act, 1962, and in the context of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. It includes explanations-of why, as well as how, the pre-trial destruction of such substances should be carried out.

Because of the huge profits that may be derived from their sale, seized narcotic drugs and psychotropic substances are vulnerable to theft. In addition, there is often a shortage of space for storing them. The disposal of property, including seized substances, pending trial is dealt with in one of the earliest legal enactments in India, the Code of Criminal Procedure, 1973. The Code provides that a court may, pending the conclusion of an inquiry or trial and after recording such evidence as it thinks necessary, order the disposal of property if such property is subject to speedy and natural decay or if it is otherwise expedient to do so. In fiscal laws, such as the Customs Act, 1962, provision has been made for the disposal of seized perishable or hazardous goods after samples have been retained for evidentiary purposes.

The lawful disposal or destruction of seized substances is also dealt with in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, article 14, paragraph 5, of which reads as follows:

"The Parties [to the present Convention] may also take necessary measures for early destruction or lawful disposal of the narcotic drugs, psychotropic substances and substances in Table I and Table II which have been seized or confiscated and for the admissibility as evidence of duly certified necessary quantities of such substances" [1] .

In December 1988, the following section was incorporated into the Narcotic Drugs and Psychotropic Substances Act, 1985, of India to allow for the implementation of article 14 of the 1988 Convention:

"SECTION 52A. DISPOSAL OF SEIZED NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

"(1) The Central Goverment 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, ... 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 subsection (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 of such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any magistrate for the purpose of:

"(a) 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 I 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) Where an application is made under subsection (2), the magistrate shall, as soon as may be, allow the application.

"(4) Notwithstanding anything contained in the Indian Evidence Act, 1872,... or the Code of Criminal Procedure, 1973,... every court trying an offence under this Act shall treat the inventory, the photographs of narcotic drugs or psychotropic substances ... as primary evidence in respect of such offence."

The purpose of the new section is to lay down a procedure to safeguard against any possible recycling of the seized substances on the illicit market and to ensure that the seized substances are lawfully disposed of. Opium, morphine, codeine and thebaine have to be sent to the government opium and alkaloid factories at Ghazipur and Nimach for further processing and are disposed of in accordance with section 52A of the Narcotic Drugs and Psychotropic Substances Act. Other substances, such as heroin, cannabis resin, cocaine and Mandrax (methaqualone), are destroyed by incineration. Destruction by incineration or any other means determined by the Government constitutes disposal under the new section.

Any inventory and photographs of seized narcotic drugs and psychotropic substances and any list of samples certified by the magistrate under section 52A, subsection (2), of the Narcotic Drugs and Psychotropic Substances Act are considered primary evidence under section 62 of the Indian Evidence Act.

The Government of India has specified that the following narcotic drugs and psychotropic substances should be subject to pre-trial disposal, under section 52A, subsection (1), of the Narcotic Drugs and Psychotropic Substances Act:

  1. Narcotic drugs: opium, morphine, heroin, cannabis, cannabis resin, codeine, thebaine, cocaine, poppy straw and any other manufactured drug defined under ... section 2 of the Narcotic Drugs and Psychotropic Substances Act;

  2. Psychotropic substances: methaqualone, tetrahydrocannabinol, am- phetamine and any other psychotropic substance defined under ... section 2 of the Narcotic Drugs and Psychotropic Substances Act.

The Government of India has issued a Statutory Order prescribing the manner in which the pre-trial disposal of seized substances should be undertaken. It covers various procedural aspects, including the following:

  1. Specification of the seized substances;

  2. Procedures to be followed relating to sampling and classification;

  3. Quantity of the samples to be drawn;

  4. Storage of samples;

  5. Dispatch of samples for testing and preparation of inventory;

  6. Follow-up activities such as the maintenance of registers, inspection by officers, and the filing of periodical reports.

The Statutory Order also provides police and other officers involved in the pre-trial disposal of seized substances with elaborate guidelines on such subjects as documents to accompany the application to the magistrate, grounds to be enumerated in the application, the mode of disposal of seized substances on which court orders have been obtained, and the application of the Customs Act, 1962.

Seized substances were openly disposed of for the first time in India in 1989. The action was carried out by the Delhi Police on the banks of the Yamuna River. The Delhi Customs Department then followed suit. Soon afterwards, Bombay Customs destroyed over 7 tonnes of seized substances. Apart from preventing seized substances from being stolen, such action increases public confidence in drug law enforcement.

Reference

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United Nations publication, Sales No. E.91.XI.6.