2002 (3) TMI 48 - SC - Customs

Conviction and sentence of the appellant under Sections 17, 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 challenged Held that - Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence. In the present case, though the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the Office of the Customs Department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed

Summary

Issues Involved:
1. Violation of Section 50 of the NDPS Act.
2. Preparation of seizure memo and samples.
3. Admissibility of evidence obtained through alleged illegal search and seizure.
4. Compliance with Narcotics Control Bureau instructions.

Issue-wise Detailed Analysis:

1. Violation of Section 50 of the NDPS Act:
The appellant contended that the search and seizure were not conducted in the presence of a Gazetted Officer or a Magistrate, violating Section 50 of the NDPS Act. This plea was rejected on the grounds that the search was a general vehicle search and not specifically targeted at the appellant, thus Section 50 was deemed inapplicable.

2. Preparation of Seizure Memo and Samples:
The appellant argued that no mahazar was prepared at the spot of seizure, and samples were not taken immediately, which caused prejudice. The Court acknowledged the importance of proper search and seizure procedures under the NDPS Act but noted that in certain circumstances, such as lack of facilities or witnesses, the mahazar could be prepared later. The Court emphasized that any delay should be justified to avoid tampering allegations.

3. Admissibility of Evidence Obtained Through Alleged Illegal Search and Seizure:
The appellant's counsel argued that the evidence collected was inadmissible due to procedural violations. The Court referred to previous judgments, including the Constitution Bench decision in Pooran Mal v. The Director of Inspection, which held that evidence obtained by illegal search or seizure is not automatically inadmissible. The Court also cited State of Punjab v. Baldev Singh, emphasizing that evidence obtained in violation of Section 50 must be excluded if it renders the trial unfair.

4. Compliance with Narcotics Control Bureau Instructions:
The appellant highlighted non-compliance with Standing Instructions issued by the Narcotics Control Bureau, particularly regarding the immediate preparation of the seizure memo and timely deposit of seized drugs. The Court noted that while these instructions do not have the force of law, they guide fair procedures. The Court found no serious prejudice to the appellant as the contraband was not tampered with and the appellant was present during the preparation of the seizure memo at the Customs Office.

Conclusion:
The Court concluded that despite procedural lapses, no serious prejudice was caused to the appellant. The appellant was found in possession of opium, and the evidence was deemed admissible. The conviction and sentence of 10 years' rigorous imprisonment and a fine of Rs. 1 lakh, with an additional two years and six months' imprisonment in default of payment, were upheld. The appeal was dismissed.