A

KHET SINGH

v.

UNION OF INDIA

MARCH 20, :2002

B [R.P. SETHI AND K.G. BALAKRISHNAN, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985: Section 50.

~

Contraband article-Search and seizure of-Held: Search and seizure

c of contraband article are to be effected in accordance with the NDPS Act and

the Rules and guidelines framed thereunder-If there

is any violations of these

' ~

guidelines, courts would take a serious view and the benefit would be extended

to the accused.

D

Contraband article-Search and seizure of-Seizure Mahazar-

Preparation of-Held: Seizure mahazar should be prepared at the spot itself

from where the contraband article

is recovered-However, if the seizure

mahazar cannot be prepared at the spot itself, it can be prepared at a later

stage provided there are justifiable and reasonable grounds to

do so.

'Jo.

E

Evidence Act, 1872:

Section 5-Relevancy

of facts-Illegal evidence-Admissibility of-Held:

Such evidence will not become inadmissible-But court should consider all

the circumstances

to see if any serious prejudice is caused to the accused. If

such evidence is in complete defiance of law and there is a possibility of

F

tampering with such evidence, it is not liable to be admissible.

The appellant was convicted and sentenced under Sections 17, 18, and

21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The High

Court upheld the conviction and sentence. Hence this appeal.

G

According to the prosecution, the appellant was found sitting in a truck

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with a cloth basket in his hand. A polythene bag was found in the basket which

contained some black substance. The appellant was brought to the Office of

,I.

the Customs where the said black substance was seized, samples were taken

from it and were sealed. ~n chemical examination it was revealed that the

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samples were opium.

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598

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KHET SINGH v. U.O.l. 599

On behalf of the appellant it was contended that the police officer did A

not prepare the seizure mahazar at the spot and thereby violated provisions

of the NDPS Act; that there was delay in depositing the seized drug in the

godown; and, therefore, the evidence obtained by such illegal seizure was

inadmissible.

Dismissing the appeal, the

Court

HELD: l. 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

Narcotic Drugs

and Psychotropic

Substances Act, 1985. The NDPS Act and

the Rules framed thereunder have laid down a detailed procedure and

guideline as to the manner in which search and seizure are to be effected. If

there is any violation of these guidelines, Court would take a serious view

and

the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and the minimum punishment prescribed

under the Statute is incarceration for a long period. As the possession of any

narcotic drugs or psychotropic substance by itself is made punishable under

the Act, the seizure of the article from

the appellant is of vital importance. [602-D]

2. It is true that when a contraband article is seized durihg investigation

or search, a seizure mahazar should be prepared at the spot in accordance

with law. There may, however, be circumstances

in which it would not have

been possible for the officer to prepare

the mahazar at the spot, as it may be

a chance recovery and the officer may not have the facility to prepare a seizure

mahazar

at the spot itself. If the seizure is effected at the place where there

are no witnesses and there is no facility for weighing the contraband article

or other requisite facilities are lacking, the officer can prepare the seizure

mahazar

at a later stage as and when the facilities are available, provided

there

are justifiable and reasonable grounds to do so. In that event, where

the seizure mahazar

is prepared at a later stage, the officer should indicates

his reasons

as to why he had not prepared the mahazar at the spot of recovery.

If there is inordinate delay in preparing the seizure mahazar, that may give

an opportunity to tamper with the contraband article allegedly seized from

the accused. There may also

be allegations that the article seized was by itself

substituted and some other items were planted to falsely implicate the accused.

To avoid these suspicious circumstances and to have a fair procedure in

respect of search and seizure, it is always desirable to prepare the seizure

mahazar

at the spot itself from where the contraband articles were taken into

B

c

D

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G

H

600 SUPREME. COURT REPORTS (2002] 2 S.C.R.

A custody. [604-B-E]

3. 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

B 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. [606-D-E)

C Pooran Mal v. Director of Inspection (Investigation), [1974] 1

SCC 345,

followed.

State of Punjab v. Baldev Singh, [1999] 6

SCC 172; State of H.P. v. Prithi

Chand, [1996] 2 SCC 37; Radha Kishan v. State of UP., Am (1963) SC 822

and State of Maharashtra v. Natwarlal Damodardas Soni, [1980) 4 SCC 669,

D relied on.

4. Though the seizure mahazar was not prepared at the spot where the

accused persons were found to be

in possession of the contraband

al'.ficle but

the same was d~ne only at the Office of the Customs Department ~ile the

accused persons were very much present throughout, there was no allegation

E or suggestion that the contraband article was, in any way, meddled with by

the officers. Therefore, the appellant has rightly been found to

be in possession

of the opium. [606-F]

F

G

H

CRIMINAL APPELLATE

JURISDICTION : Criminal Appeal No.

31 of 2000.

From the Judgment and Order dated 20.9.95 of the Rajasthan High

Court in S.B.Crl.A. No. 33 l of 1994.

Doonger Singh, V.J. Francis, P.I. Jose, Jenis and

A. Radhakrishnan for

the Appellant.

P.P. Malhotra, Ms. Binu Tamta and B. Krishna Prasad, for the

Respondent.

The Judgment

of the Court was delivered by:

K.G. BALAKRISHNAN,

J. This appeal is directed against the judgment

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KHET SINGH v. U.0.1. [K.G. BALAKRISHNAN, J.J 60 I

of the High Court of Rajasthan challenging the conviction and sentence of A

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 IO years' rigorous imprisonment

and a fine

of Rs. I 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.

B

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 C

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

14 72, 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 D

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'. E

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 ~e effected

shall be

in the presence of a Magistrate or a Gazetted Officer. This plea was p

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.

G

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 Brahantsar 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 santples were also taken at the H

.t

602 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Office of the Customs Department, and that this has caused serious prejudice .,._

to the appellant. According to the appellant's Counsel, the seizure memo

I

>

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

B

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 t.~

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

c passengers.

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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

pro~e~ure and guidelines as to the manner in which search and seizure are

D to be effected. lfthereis any violation of these guidelines, Courts would take

a serious view and the benefit would be extended to the accused. The offences

under NDPS Act are grave in nature and minimum punishment prescribed

.,

~-

under the Statute is incarceration for a long period. As the possession of any -

x

narcotic drugs or psychotropic substance by itself is made punishable under

t

E

the Act, the seizure of the article from the appellant is of vital importance.

Section 51 of the NDPS Act provides that the provisions of the Code

of Criminal Procedure, 1973 shall apply in respect of warrants, arrests, searches

and seizure in so far as they are not inconsistent with the provisions

of the NDPS Act. Section 165 of the Code confers powers on the police to search

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any place without search warrant. 'Place' has been defined in Section 2(p) of

the Code as one which includes house, building, tent, vehicle and vessel.

Section 165 of the Code empowers a police officer making an investigation

to conduct search without a warrant

if he has reasonable grounds for believing

that anything necessary for the purpose

of an investigation into any offence

l..

may be found and that he is of the opinion that undue delay may frustrate the

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opject of the search. Further, Section 100 of the Code lays down the detailed

procedure and guidelines regarding the manner

in which search is to be

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conducted of a· closed place.

f.

In the present case, the learned Counsel for the appellant contended .....

that the police officer did not prepare the seizure mahazar at the spot and

,..._

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thereby violated the provisions of law. Therefore, it is argued that the evidence

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KHET SINGH v. U.0.l. [K.G. BALAKRISHNAN, !.] 603

collected by the prosecution was not admissible. The learned Counsel further A

contended that the directions contained in the Standing Instructions issued by

the Narcotics Control Bureau were not complied with. Our attention was

drawn to clause

1.5 of the Standing Instruction No.

1/88 issued by the Narcotics

Control Bureau, New Delhi, which

is to the following effect :-

"Place and time for drawal of sample B

Samples from the Narcotic Drugs and Psychotropic Substances

seized, must be drawn

on the spot of recovery, in duplicate, in the

presence

of search

(Panch) witnesses and the person from whose

possession the drug

is recovered, and a mention to this effect should

invariably be made

in the panchnarna drawn on the

spot." C

The learned Counsel f"or the appellant also pointed out to us Clause 3.8

of the Standing Order No. 2/88 issued by the Narcotics Control Bureau, New

Delhi, which reads as follows

:-

Each seizing officer should deposit the drugs fully packed and sealed D

with his seal in the godown within 48 hours of seizure of such drugs,

with a forwarding memo indicating:

{i)

NDPS Crime No. as per crime and prosecution register under the

new law (i.e. NDPS Act)

{ii) Name (s) of accused

{iii) Reference of test memo

(iv) Description

of drugs in the sealed packages/containers and other

goods,

if any

(v) Drug-wise quantity

in each package/container

(vi) Drug-wise number

of packages/containers

(vii) Total number

of all packages/containers

The learned Counsel for the appellant contended that these instructions

issued

by the Narcotics Control Bureau, New Delhi, were not followed and

the seizure memo was not prepared at the spot and there was delay in

depositing the seized drug

in the godown.

It was argued that this has ·caused

serious prejudice to the accused and therefore, his conviction is vitiated on

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that account. H

604 SUPREME COURT REPORTS [2002) 2 S.C.R.

A The instructions issued by the Narcotics Control Bureau, New Delhi

are

to be followed by the officer in-charge of the investigation of the crimes

.,....._

coming within the purview of the NDPS Act, even though these instructions

do not have the force

of law. They are intended to guide the officers and to

see that a fair procedure

is adopted by the officer in-charge of the investigation.

B

It is true that when a contraband article is seized during investigation or

search, a seizure mahazar should be prepared

at the spot in accordance with

law. There may, however, be circumstances

in which it would not have been

possible for the officer to prepare the mahazar at the spot,

as it may be a

chance recovery and the officer may not have the facility to prepare a seizure

"f-

mahazar at the spot itself. If the seizure is effected at the place where there

~

c are no witnesses and there is no facility for weighing the contraband article

or other requisite facilities are lacking, the officer can prepare the seizure

mahazar at a later stage as and when the facilities are available, provided

~

there are justifiable and reasonable grounds to do so. In that event, where the

I

seizure mahazar is prepared at a later stage, the officer should indicate his

I

D

reasons as to why he had not prepared the mahazar at the spot of recovery.

If there is any inordinate delay in preparing the seizure mahazar, that may

give an opportunity to tamper with the contraband article allegedly seized

from the accused. There may also

be allegations that the article seized was

. ..

by itself substituted and some other items were planted to falsely implicate

"X

the accused. To avoid these suspicious circumstances and to have a fair

E

procedure in respect of search and seizure, it is always desirable to prepare

the seizure mahazar at the spot itself from where the contraband articles were

taken into custody.

In the present case, though the article was seized from the accused

while

he was travelling in a truck, no seizure mahazar was prepared at that

y

F time. The accused persons were taken to the office of customs and the seizure

mahazar was prepared at the office

of customs. The learned

Single Judge of

the High Court held that no prejudice was caused to the appellant. The

learned Counsel for the appellant contended that NDPS Act being a special

Statute_ with provision for severe punishment on the accused found guilty

of

G

the offences punishable thereunder, the procedure established by law for

search and seizure

is to be strictly complied with and any failure to comply

with such procedure

is to be viewed seriously and any evidence collected

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shall be made inadmissible under law.

Whether evidence collected by illegal search or seizure is admissible or

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not was considered by this Court in series of decisions and one of the earliest

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KHET SINGH v. U.0.1. [K.G. BALAKRJSHNAN, J.] 605

decisions is the decision of the Constitution Bench in Pooran Mal v. The A

Director of Inspection (Investigation), New Delhi and Ors., etc. etc., [1974]

-1 SCC 345. Though the search in that case was done under the provisions of

the Income Tax Act, it is apposite to note the following observation made by

this court:-

"So far as India is concerned its law of evidence is modelled on the B

rules of evidence which prevailed in English Law, and Courts in

India and in England have consistently refused to exclude relevant

evidence merely

on the ground that it is obtained by illegal search or seizure."

In State of Punjab v. Baldev Singh, [ 1999] 6 SCC I 72, the Constitution C

Bench of this Court extensively considered the question whether the procedure

laid down under Section' 50 of NDPS Act is mandatory or not. It was held

that the judgment

in

Pooran Mal case cannot be understood to have laid

down that

an illicit article seized during a search of a person, on

pri.or

information, conducted in violation of the provisions of Section 50 of the D

Act, can by itself be used as evidence of unlawful possession of the illicit

article on the person from whom the contraband has been seized during the

illicit search. In paragraph

45 of the Judgment, Dr.

A.S. Anand (Chief Justice)

held as under:-

" .... Prosecution cannot be permitted to take advantage of its own E

wrong. Conducting a fair trial for those who are accused of a criminal

offence

is the cornerstone of our democratic society. A conviction

resulting from an unfair trial

is contrary to our concept of justice.

Conducting a fair trial is both for the benefit of the society as well

as for an accused and cannot be abandoned. While considering the

aspect

of fair trial, the nature of the evidence obtained and the nature F

of the safeguard violated are both relevant factors.

Courts cannot

allow admission

of evidence against an accused, where the court is

satisfied that the evidence had been obtained by a conduct of which

the prosecution ought not to take advantage particularly when that

conduct had caused prejudice to the accused.

If after careful G

consideration of the material on record it is found by the court that

the admission

of evidence collected in search conducted in violation

of

Section 50 would render the trial unfair then that evidence must be

excluded .... "

In State of H.P. v. Prithi Chand and Anr., [I996) 2 SCC 37, it was held

606 SUPREME COURT REPORTS [2002] 2 S.C.R.

A that it would thus be settled law that every deviation from the details of the

procedure prescribed for search does not necessarily lead to the conclusion

that search by the police renders the recovery

of the articles pursuant to the

illegal search irrelevant evidence nor the discovery

of the fact inadmissible

at the trial. Weight to be attached to such evidence depends on facts and

B circumstances in each case. The court is required to scan the evidence with

care and to act upon it when it is proved and the court would hold that the

evidence would be relied upon.

In

Radha Kishan v.

State of Uttar Pradesh, AIR (1963) SC 822 this

Court held that the evidence obtained by illegal search and seizure would not

C be rejected but requires to be examined carefully. In

State of Maharashtra v.

Natwarlal Damodardas Soni, [1980] 4 SCC 669 it was held that even ifthe

search was illegal, it will not affect the validity of the seizure and further

investigation

of the authorities or the validity of the trial which followed on

the complaint by the customs officials.

D 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

<;aused 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

E 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.

1n the present case, though the mahazar was not prepared at the spot

F 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

G interfere with the conviction and sentence entered against the appellant. The

appeal

is dismissed accordingly.

v.s.s. Appeal dismissed.

; ...