2014 (8) TMI 1071 - HC - Indian Laws

NDPS - It is a moot question as to whether the search and seizure conducted in terms of the provisions contained in Chapter VII of the CrPC which contains Sections 91 to 105 read with the provisions contained in Sections 165 and 166 of the CrPC can be made basis for quashing the investigation or quashing the search and seizure made? The answer is in the negative.

Summary

Issues Involved:
1. Jurisdiction of Punjab Police in conducting searches and seizures in Himachal Pradesh.
2. Legality of searches and seizures conducted without following due procedure.
3. Maintainability of the writ petition before the Himachal Pradesh High Court.
4. Applicability of precedents and legal principles regarding searches and seizures.

Issue-wise Detailed Analysis:

1. Jurisdiction of Punjab Police:
Petitioners challenged the searches and seizures conducted by Punjab Police on 15th and 16th November 2013 at their premises in Himachal Pradesh, claiming that Punjab Police lacked jurisdiction to operate outside their state. They sought relief under Article 226 of the Constitution of India, requesting the court to declare the searches and seizures illegal, null, and void ab-initio.

2. Legality of Searches and Seizures:
The petitioners argued that the searches and seizures were conducted without following the mandate of law, specifically the procedural requirements under the Criminal Procedure Code (CrPC) and the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). They contended that the Punjab Police did not involve the local police or the State Drugs Controller, thus violating legal protocols.

3. Maintainability of the Writ Petition:
The court questioned the maintainability of the writ petition, noting that the petitioners had not challenged the order of the Judicial Magistrate 1st Class, Mohali, which authorized the searches. The petitioners had also approached the Punjab and Haryana High Court with similar grievances but did not question the JMIC Mohali's order there. The court observed that the petitioners should have sought relief from the Punjab and Haryana High Court if they were aggrieved by the search order.

4. Applicability of Precedents and Legal Principles:
The court referred to several precedents to address the legality of the searches and seizures:
- M.P. Sharma vs. Satish Chandra: The Supreme Court held that searches made under warrants issued under Sections 94 and 96 of the CrPC cannot be challenged as illegal on the grounds of violation of fundamental rights.
- Radha Kishan vs. State of Uttar Pradesh: The Supreme Court ruled that even if a search is illegal, the seizure of articles is not vitiated.
- V.S. Kuttan Pillai vs. Ramakrishnan: The court upheld the issuance of general search warrants under Section 93(1)(c) of the CrPC.
- State of Haryana vs. Rajmal: The Supreme Court reiterated that an illegal search does not vitiate the seizure of articles.
- M.T. Enrica Lexie vs. Doramma: The court discussed the scope of police powers under Section 102 of the CrPC regarding the seizure of property.

The Himachal Pradesh High Court concluded that the writ petition was an afterthought aimed at hampering the investigation by the Punjab Police. The court emphasized that the petitioners should have challenged the search order before the appropriate forum. Consequently, the writ petition was dismissed as not maintainable.