516-A. Order tor custody
and disposal of property pending trial in certain cases. When any property
regarding which any offence appears to have been committed, or which appears to
have been used for the commission of any offence is produced before any Criminal
Court during any inquiry or trial, the Court may make such order as It thinks
fit for the proper custody of such property pending the conclusion of the
inquiry or trial, and, if the property is subject to speedy or natural decay,
may, after recording such evidence as it thinks necessary, order it to be sold
or otherwise disposed of.
Provided that, if the property consists of explosive substances, the Court shall
not order it to be sold or handed over to any person other than a Government
Department or office dealing with, or to an authorized dealer in, such
substances
Provided further that if the property is a dangerous drug, intoxicant,
intoxicating liquor or any other narcotic substance seized or taken into custody
under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of
1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or
any other law for the time being in force, the Court may, either on an
application or of its own motion and under its supervision and control obtain
and prepare such number of samples of the property as it may deem fit for safe
custody and production before it or any other Court and cause destruction of the
remaining portion of the property under a certificate issued by it in that
behalf:
Provided also that such samples shall be deemed to be whole of the property in
an inquiry or proceeding in relation to such offence before any authority or
Court.
The second proviso was added by Cr. Law Amendment Act VII of 1993 wherein the
disposal of dangerous drug, intoxicant, intoxicating liquor or any other
narcotic substance seized or taken into custody, all these kinds of drugs etc if
seized or taken into custody by any agency, the same may be disposed of with the
order of the court during pendency of trial. The conditions and guidelines laid
down by the apex courts are to be followed by the concerned agency/department.
The courts have power to order destruction, disposal of a dangerous drug,
intoxicant, intoxicating liquor or any other narcotic substance so seized by
taking suo motu step. It is necessary to give notice to the prosecution so also
the accused to be heard and any objections raised by either parties, the same be
considered before passing any order of disposal. It is the right of parties to
be heard, in view of the legal maxim Audi alteram partem (or audiatur et altera
pars) to impart fair justice to both the parties. It is the primary duty of
prosecution to produce the recovered property viz dangerous drug, intoxicant,
intoxicating liquor or any other narcotic substance before the court during the
trial for inspection of the accused to prove the recovery accordingly, the
second and third proviso have made an exception to this general rule. This
discretion shall be used judicially before and at the time of destruction of
property to safe guard the rights and interest of both prosecution so also
accused. If the entire property is destroyed without knowledge of the either
party, the same shall prejudice them. Thus issuance of notice to the parties,
hearing the objections thereof, passing of appropriate order, getting further
samples to be sealed properly in presence of a magistrate, preparation of memo
of sampling, sealing and thereafter, destruction in presence of magistrate and
such memo of destruction/destruction certificate/report are essential
requirements of law. It is also observed by the apex courts that the
destruction/disposal order of drugs u/s 516-A Cr.P.C must by passed by the Trial
court itself.