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2020 (5) TMI 534 - HC - Indian LawsSmuggling - contraband item kept in safe custody by income tax officers - Interpretation of statute - true import and construction of the provisions contained in sections 41 and 42 of the NDPS Act - whether the act of the Income Tax Officers of collecting and keeping the contraband in the safe custody on 7th January 2014 constitutes a seizure? HELD THAT - The phraseology of sections 41 and 42 of NDPS Act, indicates that the powers under those sections cannot be exercised by an officer who is not either empowered or authorized. A search and seizure operation by an officer not empowered or authorized would be without mandate of law. Such search and seizure cannot be banked upon to visit a person with the consequences envisaged by the provisions of the Act. Can this prescription be applied with equal vigour when the contraband is found per chance by the officers who are neither empowered nor authorized under the NDPS Act, is the real question. Here the context provides a legitimate answer. If the search and seizure operation is carried out by the officers who are neither empowered nor authorized with the purpose or under a belief that the suspect possesses the contraband substance, then the provisions of the Act would apply with full force and the prosecution would not be permitted to rely upon such search and the trial on the strength of such seizure would stand vitiated. However, when the officers stumbled upon the contraband substance in possession of a person in a totally different proceedings, like the income tax search at hand, different considerations ought to come into play lest the ground of non-compliance of the provisions contained in sections 41 and 42 of the NDPS Act, even in case of an accidental recovery of contraband substance, would cause serious prejudice to the cause of administration of criminal justice. A profitable reference in this context can be made to the judgment of the Supreme Court in the case of STATE OF HIMACHAL PRADESH VERSUS SUNIL KUMAR 2014 (3) TMI 1164 - SUPREME COURT , wherein, in the context of compliance of the provisions contained in section 50 of the Act, the Supreme Court considered the question whether the accidental or chance recovery of narcotic drugs during a personal or body search would attract the provisions of section 50 of the NDPS Act?. Placing reliance upon the earlier judgment in the case of STATE OF PUNJAB VERSUS BALBIR SINGH 1994 (3) TMI 173 - SUPREME COURT and the Constitution Bench judgment in the case of State of Punjab Vs. Baldev Singh 1999 (7) TMI 630 - SUPREME COURT , the Supreme Court held that the question posed in that case was no longer res-integra and answered the same in the negative. In the case at hand, there is material to indicate that the Income Tax search was underway from 7th January 2014 to 10th January 2014. The panchanama drawn by the Income Tax Authorities evidences the said fact. At this juncture, it would be rather hazardous to draw an inference that the said income tax search was a subterfuge. The statements of the Income Tax Officers find requisite support in the statements of the applicant recorded under section 67 of the NDPS Act - The action of the officers of the Income Tax department in apprising the said matter of finding the suspicious substance during the course of Income Tax search, in the given circumstances, cannot be said to be inconceivable and unjustifiable. The learned Special Judge was within his rights in recording a finding that there was adequate material which justified a strong suspicion of accused No.1-applicant having committed the offence punishable under section 8(c) read with section 21(b) of the NDPS Act. Thus, no interference is warranted in exercise of revisional jurisdiction - Revision dismissed.
Issues Involved:
1. Legality of the seizure of contraband material by Income Tax Officers. 2. Compliance with Sections 41 and 42 of the NDPS Act. 3. Delay in communication with the Narcotics Control Bureau (NCB). 4. Adequacy of prima facie evidence for framing charges. Issue-wise Detailed Analysis: 1. Legality of the Seizure of Contraband Material by Income Tax Officers: The applicant challenged the legality of the seizure of the contraband material by the Income Tax Officers on the grounds that they were not empowered under the NDPS Act to conduct such operations. The court examined whether the act of collecting and keeping the contraband in safe custody on 7th January 2014 constituted a "seizure." It was determined that the Income Tax Officers' actions did not amount to a legal seizure under the NDPS Act, as they were neither empowered nor authorized to carry out such operations. The court noted that the officers stumbled upon the contraband during an income tax search, which was not aimed at finding narcotic substances. Therefore, the action of the Income Tax Officers could not be considered a seizure in the legal sense. 2. Compliance with Sections 41 and 42 of the NDPS Act: The court analyzed the provisions of Sections 41 and 42 of the NDPS Act, which outline the powers of officers to conduct search and seizure operations. It was emphasized that only empowered officers could exercise these powers. The court referred to the Supreme Court's interpretation in cases such as Roy V.D. vs. State of Kerala and Union of India vs. L.D. Balam Singh, which held that any search or seizure by officers not empowered under the NDPS Act is inherently illegal and cannot form the basis of prosecution. However, the court distinguished the present case by noting that the contraband was found accidentally during an income tax search, and the officers were justified in keeping the substance in safe custody and informing the NCB. 3. Delay in Communication with the Narcotics Control Bureau (NCB): The applicant argued that the delay in communicating the discovery of the contraband to the NCB (from 7th January to 10th January 2014) affected the credibility of the prosecution's case. The court acknowledged that the delay might impact the credibility of the prosecution witnesses but stated that this issue should be addressed during the trial. The court did not find the delay sufficient to vitiate the entire prosecution at the stage of framing charges. 4. Adequacy of Prima Facie Evidence for Framing Charges: The court examined whether there was sufficient prima facie evidence to frame charges against the applicant. The Special Judge had found strong prima facie evidence against the applicant, warranting the framing of charges under Section 8(c) read with Section 21(b) of the NDPS Act. The court upheld this finding, stating that the material on record justified a strong suspicion of the applicant's involvement in the offense. Consequently, the court dismissed the revision application, affirming the decision to frame charges against the applicant. Conclusion: The court concluded that the actions of the Income Tax Officers did not constitute a legal seizure under the NDPS Act, but their conduct was justified given the accidental discovery of the contraband. The delay in communication with the NCB was noted but deemed a matter for trial. The court found adequate prima facie evidence to frame charges against the applicant and dismissed the revision application. The observations made were specific to the discharge application and should not influence the trial's outcome.
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