concurring specially.
Although I concede that the improper use of drugs that should have been destroyed does not rise to the level of outrageous conduct as described in the case law, the forfeiture statute clearly required destruction of the cocaine used against Giraldo and Brutus long before it was used against them in a reverse sting. And, I cannot condone use of such drugs under the circumstances. If the legislature intended to allow the practice, it should revise the statute to make it clear. See Gober v. State, 249 Ga. App. 168 (547 SE2d 656) (2001) (Pope, P. J., concurring specially). Also, I write separately to address two other matters.
First, Dean v. Gober, 272 Ga. 20 (524 SE2d 722) (2000), did not, as claimed by the majority, hold that so long as the police keep ownership records for confiscated non-Schedule I controlled substances, they are authorized to use them in reverse stings. Rather, it held that those substances can be used if they have a known owner, but controlled substances whose owners are unknown are summarily forfeited and must be destroyed. Certainly it follows that the failure to keep ownership records would preclude showing the identity of an owner, but keeping ownership records was not the determinative fact. What if the records they keep show no owner? Thus, in this case, the simple fact that the Georgia Bureau of Investigation has records is not sufficient. There still must be proof of a known owner in order to exempt non-Schedule I drugs from forfeiture and destruction.
The only evidence in this case to support the conclusion that the stockpile of cocaine that was being held for use in reverse stings had a known owner is very weak. The GBI deputy director testified only that his records would show who the owner was, but he did not know the names of the owners himself or present his records as evidence. On this basis alone, the trial court concluded there was a “known owner” sufficient to satisfy the statute.
*183Although on appeal the slight evidence presented might be sufficient to uphold that factual finding, because the drugs at issue in this case were admittedly illegally manufactured and possessed, there can be no owner of the controlled substances, and therefore, they should have been destroyed.
OCGA § 16-13-49 (a) (7) provides that a person is an owner if they have “an interest in [the] property.” OCGA § 16-13-49 (d) (1) provides that all controlled substances “that have been manufactured, distributed, dispensed, possessed, or acquired in violation of” the Georgia Controlled Substances Act “are declared to be contraband and no person shall have a property right in them.” And the GBI deputy director testified that the contraband acquired in both the 1982 and 1985 cases is “for lack of a better term, boat cocaine; in other words, cocaine that’s been manufactured and prepared down in Colombia and smuggled into the U. S.” Therefore, because the two stashes of cocaine in the GBI laboratory are illegal “boat cocaine,” no person has a property right in them; they can have no owner.
It is true that in Dean v. Gober, the Supreme Court recognized that non-Schedule I controlled substances can have a known owner. 272 Ga. at 24 (4). Indeed, OCGA § 16-13-35 (c) (4) authorizes certain persons to, among other things, manufacture controlled substances provided they are properly registered. And deputy director Terry Mills admitted that it is possible to purchase pharmaceutical-grade cocaine. Thus, properly registered persons would be examples of known owners of a controlled substance. But, construed together, OCGA § 16-13-49 (d) and (e) mean that there can be a known owner only if the substance has not been manufactured, distributed, dispensed, possessed, or acquired in violation of the Georgia Controlled Substances Act.17 In this case, the substance was illegal cocaine, and therefore, there can be no known owner.
Also, OCGA § 16-13-35 (c) (4) allows officers and employees of the state while acting in the course of their official duties to possess controlled substances. But, read together with subsections (d), (u) (1), and (y) of OCGA § 16-13-49, this statute means that the officers must destroy all controlled substances that have been manufactured, distributed, dispensed, possessed, or acquired in violation of the Georgia Controlled Substances Act that are no longer needed for evidentiary purposes in the matter in which they were acquired, although they may possess any drugs that do not fall into these categories.
Dean v. Gober did not address this specific point. It held only that the police may use confiscated drugs where there is a known *184owner. But it did not consider or construe OCGA § 16-13-49 (d) and its clear pronouncement that no person can own illegally manufactured drugs. Nor did it consider who can be an owner of Schedule II controlled substances. Although the majority attacks this writer’s construction of OCGA § 16-13-49 (d) and (e), it does not offer any explanation of the meaning of those Code subsections. The majority’s conclusions are not based on reading the statute as a whole.
Decided March 30, 2001 Reconsideration denied April 12, 2001 William G. Quinn III, for appellant (case no. A00A2037). Stephen T. Maples, Bernard Knight, Karlyn Shall, for appellant (case no. A00A2038). J. Tom Morgan, District Attorney, Kristin M. Childers, Gregory K. Schwarz, Assistant District Attorneys, for appellee.In short, because the cocaine stored by the GBI is illegally manufactured cocaine, it cannot have a known owner. Under Dean v. Gober, because the owner of the cocaine stockpile was unknown, those drugs had been summarily forfeited pursuant to OCGA § 16-13-49 (y) and “their destruction was mandated by OCGA § 16-13-49 (u) (1).” Dean v. Gober, 272 Ga. at 22 (1). It was a violation of the amended forfeiture statute for the GBI to keep it because it was no longer needed for evidentiary purposes in connection with the 1982 and 1985 incidents. Accordingly, the cocaine should have been destroyed long before some of it was used in a reverse sting against Giraldo and Brutus.
OCGA § 16-13-49 (e) essentially provides that where the confiscated property belongs to a legitimate and innocent owner, that property is not subject to forfeiture.