Advocates:
V. J. FRANCISB. KRISHNA PRASAD

Key Points: - NDPS Act and rules framed thereunder prescribe detailed procedures and guidelines for search and seizure (!) (!) . - Section 50 of the NDPS Act requires search and seizure to be conducted in the presence of a Gazetted Officer or Magistrate (!) (!) . - Evidence obtained in violation of search and seizure procedures may be excluded if it renders the trial unfair (!) (!) . - Courts consider whether serious prejudice was caused to the accused due to procedural illegality (!) (!) . - Seizure of the article is of vital importance as mere possession is punishable under the Act (!) (!) . - Delay in preparing seizure memo and depositing seized drugs may be permissible if justified with reasonable grounds (!) (!) . - The court observed no allegation or suggestion of tampering or meddling with the contraband article (!) (!) . - The accused was found to be in possession of the opium and the conviction was upheld (!) (!) . - The appeal was dismissed accordingly (!) .

What is the procedure required for search and seizure under the NDPS Act?

What are the consequences of non-compliance with search and seizure procedures under the NDPS Act?

Was the evidence admissible despite the seizure not being conducted at the spot?

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CASE NO.:

Appeal (crl.) 31 of 2000

PETITIONER:

KHET SINGH

Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT: 20/03/2002

BENCH:

R.P. Sethi & K.G. Balakrishnan

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 & 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.

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’.

The appellant contended before the trial court that there was violation of

Section 50 of the NDPS 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.

The learned Counsel, Mr. Doongar Singh who appeared on behalf of the

appellant raised a contention that though the search and seizure was effected

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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 an