IMPORTANT POINT
Even if there is any sort of procedural illegality in conducting the search and seizure, evidence collected thereby will not become inadmissible and court would consider all circumstances and find out whether any serious prejudice was caused to accused.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 17, 18, 21 and 50-Recovery of opium from possession of appellant who was travelling in a lorry-Inspector Customs Department with Superintendent Customs while on patrolling and checking duty had apprehended appellant-Search and checking being conducted of vehicles and during the course of general search that appellant was found travelling with opium, Section 50 of the Act was not applicable. (Para 3)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 7, 18 and 21-Recovery of opium from possession of appellant who was found travelling in lorry-Conviction challenged on plea that seizure and samples from contraband were not done on spot but were prepared in office of Customs Department and it caused prejudice to appellant-Standing Instructions issued by Narcotic Control Bureau providing that when a contraband article was seized during investigation or search, a seizure mahazar should be prepared at spot in accordance with law-Inordinate delay in preparing seizure memo may give an opportunity to tamper with contraband-But by any sort of procedural illegality in conducting the search and seizure, evidence collected will not become inadmissible-No allegations or suggestion that contraband seized was in any way meddled with by the officers-Conviction could not be interfered with. (Paras 10, 11, 16, and 17)

Judgement Key Points

The Supreme Court held that even if there is a procedural illegality in conducting the search and seizure, the evidence collected, including samples, will not become inadmissible solely on that ground. The Court emphasized that the admissibility of such evidence depends on whether any serious prejudice was caused to the accused and whether there was any tampering or interference with the contraband during the process. The Court also noted that the procedure for drawing samples should ideally be conducted on the spot in the presence of witnesses and the accused, but if the samples are taken later, the reasons for the delay should be recorded, and the integrity of the samples must be maintained. Overall, the Court recognized that procedural lapses do not automatically render evidence inadmissible, provided that the integrity of the evidence is preserved and no prejudice is caused to the accused.

JUDGMENT

K.G. Balakrishnan, J.-This appeal is directed against the judgment of the High Court of Rajasthan challenging the conviction and sentence of the appellant under Sections 17, 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). Appellant had been sentenced to undergo 10 years rigorous imprisonment and a fine of Rs. 1 lakh and in default of payment of fine further to undergo two years and six months rigorous imprisonment.

2. Appellant Khet Singh was tried along with one Kanhaiya Lal for the aforesaid offences and Kanhaiya Lal was acquitted by the Sessions Court. The case of the prosecution is that on 6.5.1989, PW6 Shri Narain Das Lakhara, Inspector, Customs Department, Jaisalmer, along with the Superintendent of Customs and two other constables was proceeding on patrolling and checking duty towards Ramgarh. Near Brahamsar crossing, they started checking several motor vehicles as it was suspected that there might be drug trafficking. In truck No. RJC 1472, the appellant was found sitting with a cloth basket in his hand. During the search, a polythene bag was found in the basket which contained some black substance suspected to be opium. Appellant Khet Singh and Kanhaiya Lal along with the cloth basket were brought to the Office of the Customs. In the office of the Customs, the opium was seized, samples were taken from it and were sealed. Appellant and Kanhaiya Lal were questioned. The appellant stated that he had purchased the seized opium from Kanhaiya Lal. The samples were sent for chemical examination and the report from the Forensic Science Laboratory revealed that the sample was opium .

3. The appellant contended before the trial court that there was violation of Section 50 of the NDPC Act as the search and seizure was not made in the presence of a Gazetted Officer or a Magistrate and that the appellant was not told in advance that he had a right to demand that the search to be effected shall be in the presence of a Magistrate or a Gazetted Officer. This plea was rejected on the ground that search and checking was being conducted of the vehicles and it was during the course of this general search that the appellant was found travelling with the opium and hence Section 50 of the NDPS Act is not applicable and that the same would apply in the case of a search on the person of the appellant. The same plea was raised before the High Court and was rightly rejected.

4. The learned Counsel, Mr. Doongar Singh who appeared on behalf of the appellant raised a contention that though the search and seizure was effected near Brahamsar crossing, no mahazar was prepared and no samples were taken from the contraband article; the seizure memo was prepared in the Office of the Customs Department and the samples were also taken at the Office of the Customs Department, and that this has caused serious prejudice to the appellant. According to the appellant s Counsel, the seizure memo should have been prepared at the place where the contraband article was seized from the accused. He further pointed out that the recovery was effected but the contraband article was not sealed at the spot and the truck along with the driver and the appellant were brought to the office of Customs Department at Jaisalmer and that there were about 10 other persons in the truck and all of them were allowed to go. The learned counsel further contended that had the search mahazar been prepared at the spot, it could have been satisfactorily proved that it was from the appellant s possession that the bag was taken and it is doubtful whether the bag belonged to the appellant or to any other passengers.

5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effecte

Click Here to Read the rest of this document

2002 Supreme(SC) 382

IMPORTANT POINTEven if there is any sort of procedural illegality in conducting the search and seizure, evidence collected thereby will not become inadmissible and court would consider all circumstances and find out whether any serious prejudice was caused to accused.

Cases Referred (5)

IMPORTANT POINT
Even if there is any sort of procedural illegality in conducting the search and seizure, evidence collected thereby will not become inadmissible and court would consider all circumstances and find out whether any serious prejudice was caused to accused.