In Mohinder Kumar v. State 1998 8 SCC 655
this Court considered a chance recovery as one when a
police officer “stumbles on” narcotic drugs when he
makes a search. In Sorabkhan Gandhkhan Pathan v. State
of Gujarat 2004 13 SCC 608 the police officer, while
searching for illicit liquor, accidentally found some charas.
This was treated as a “chance recovery”.”
26. In the said case, the accused Sunil Kumar was apprehended in
suspicious circumstances in a routine “traffic check” by the police. The
accused was asked to disembark from the bus and on his search, a
polythene envelope containing a substance which looked like charas was
found concealed with the help of “parna”, a piece of cloth. Applying the
aforesaid test of chance recovery, the Supreme Court held that the police
party accidentally or unexpectedly came across drugs carried by the
accused and this could only be described as a recovery by chance since
the police were neither looking for drugs nor expecting to find drugs
carried by anybody. The Supreme Court extracted the following
observations in the case of State of Punjab Vs. Balbir Singh (Supra) in
para 11, which read as under :
“11 The relevant extract of para 25 of Balbir Singh reads as
follows:
“(1) If a police officer without any prior information
as contemplated under the provisions of the NDPS Act
makes a search or arrests a person in the normal course
of investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such
search is completed at that stage section 50 of the ndps
act would not be attracted and the question of
complying with the requirements thereunder would not
arise. If during such search or arrest there is a chance
recovery of any narcotic drug or psychotropic substance
then the police officer, who is not empowered, should
inform the empowered officer who should thereafter
proceed in accordance with the provisions of the NDPS
Act. If he happens to be an empowered officer also,
then from that stage onwards, he should carry out the
investigation in accordance with the other provisions of
the NDPS Act.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 83 OF 2019
Anant Vardhan Pathak @ Anant Satish Pathak Vs Union of India
CORAM : N.J. JAMADAR, J
PRONOUNCED ON : 22nd May 2020
1. By this revision application, the applicant No.1 assails the legality,
propriety and correctness of an order passed by the learned Special
Judge, NDPS, Greater Bombay, on an application for discharge (Exh.56)
in NDPS Complaint Case No.49 of 2014 dated 22nd January 2019 whereby
the learned Judge was persuaded to reject the application.
2. Shorn of unnecessary details, the background facts necessary for the
determination of this revision application can be stated as under :-
a. The applicant is arraigned for the offences punishable under section
8(c) read with section 21(b) of The Narcotic Drugs and Psychotropic
Substances Act, 1985 (‘NDPS Act’) for having been found in
possession of and also consumed a narcotic drug along with two coaccused.
b. The indictment against the applicant is that on 7th January 2014,
the officers of the Income Tax Department conducted a search and
seizure operation at Room No. 667 of Taj Palace Hotel, Mumbai in
connection with the affairs of the group companies controlled by
one Yash Birla. The applicant is the President of the corporate
affairs of the said group. During the course of the said operation,
the applicant was found in the said room along with co-accused. In
the course of the said search and seizure operation, one of the coaccused
namely Dharmu Rathod was found in possession of eight
small self-knotted transparent polythene pouches containing white
powdery substance kept in white paper envelope. The officers of
Income Tax Department collected the said article and kept it in a
safe, which was available in the said room, in the presence of the
public witnesses, who were already summoned for the said search
and seizure operation. The Superior Officers of the Income Tax
Department thereafter informed the Zonal Director, Narcotics
Control Bureau, Mumbai (‘NCB’) on 10th January 2014 about the
said occurrence.
c. Thereupon, the empowered officers of NCB came to the said room
on 10th January 2014 and the said substance was checked with the
assistance of field testing kit. It transpired that the said substance
was cocaine weighing about 4.5 grams. The officers of NCB seized
the said contraband material in adherence to the procedure.
Panchanama came to be drawn. After completion of the
investigation, charge-sheet came to be lodged against the accused
for the offence punishable under section 8(c) read with section
21(b) of the NDPS Act.
d. The applicant filed an application under section 227 of the Code of
Criminal Procedure, 1973 (‘the Code’) for discharge. The respondent
No.1 resisted the application by filing say and objection.
e. The learned Special Judge was persuaded to reject the application
holding inter-alia that there was a strong prima-facie evidence
against the applicant which warranted framing of charge. Being
aggrieved by the impugned order, the applicant has invoked the
revisional jurisdiction of this Court.
3. I have heard Mr.Mundargi, the learned Senior Counsel for the
applicant and Ms. P.H. Kantharia, the learned Special P.P. for respondent
No.1, at some length. Perused the material on record.
4. To begin with, it is necessary to note that before the learned
Special Judge, the applicant had sought discharge on multiple grounds
including that the seizure memo prepared by the Income Tax Department
does not indicate the seizure of the alleged contraband material; the
contraband material was seized by the officers who were not empowered
to carry out search and seizure operation under the provisions of the
NDPS Act; there is a discrepancy in the remand report dated 12th January
2014 and 18th January 2014 regarding the accused on whose person the
contraband material was actually found and that the complainant Mr.
Dole, who had allegedly seized the contraband material on 10th January
2014 also carried out the investigation and thereby vitiated the
prosecution.
5. The learned Special Judge was not inclined to accede to any of the
aforesaid grounds to come to the conclusion that there was no material
which warranted framing of the charge against the accused. In the
process, the learned Special Judge observed that the fact that the
contraband material was collected by the Income Tax Officer on 7th
January 2014, during the course of search and seizure in connection with
the affairs of Yash Birla Group Companies, did not strictly constitute a
seizure of the contraband material. The Income Tax Officers had simply
collected the said contraband substance from the co-accused and stored it
in the safe and it was, in effect, seized by the empowered officers of
respondent No.1 on 10th January 2014. Thus, the challenge to the
tenability of the prosecution on the ground that the contraband substance
was seized by the officers of the Income Tax Department, who were not
empowered under the NDPS Act, did not merit acceptance.
6. The learned Senior Counsel mounted a serious challenge to the
aforesaid observation and finding of the learned Special Judge. Laying
emphasis on this aspect of the matter, the learned Senior Counsel would
urge that the learned Special Judge committed a manifest error in
recording a finding that the Income Tax Officers did not “seize” the
contraband substance on 7th January 2014. According to the learned
Senior Counsel, this erroneous view vitiated the impugned order. The
learned Senior Counsel strenuously urged that in view of the governing
provisions of the NDPS Act and binding precedents, the learned Special
Judge could not have taken the view that the contraband was not at all
seized on 7th January 2014 and it came to be seized after three days by
the empowered officers of respondent No.1.
7. Drawing attention of the Court to the provisions contained in
sections 41 and 42 of the NDPS Act, which indicate that the officers who
are empowered to carry out the search and seizure and prescribe the
statutory safeguards in the matter of carrying out the search and seizure,
it was urged with a decree of vehemence that the seizure of contraband
by the Income Tax Officers on 7th January 2014 did constitute a legal
seizure and the same being done by the officers neither armed with a
warrant nor authorization and empowerment under the provisions of
sections 41 and 42 of the NDPS Act, the prosecution is wholly untenable.
8. In opposition to this, the learned Special P.P. for respondent No.1
would urge that the context of the search and seizure operation by the
officers of the Income Tax Department cannot be lost sight of. The said
operation was in connection with the affairs of Yash Birla Group
Companies. The officers of the Income Tax Department, during the course
of the said operation, found the contraband material on the person of coaccused
Dharmu Rathod. The statements of the accused recorded under
section 67 of the NDPS Act squarely incriminate the accused. The officers
of the Income Tax Department, in the circumstances, were justified in
keeping the contraband substance in safe custody and informing the said
fact to the concerned officer of the respondent No.1. Placing reliance
upon the communication dated 10th January 2014 by the Director of the
Income Tax (Inv.)-I to the Zonal Director of the respondent No.1, the
learned Special PP stoutly submitted that the claim of the applicant that
the contraband substance was seized on 7th January 2014 is legally
untenable.
9. As the controversy sought to be raised revolves around the true
import and construction of the provisions contained in sections 41 and 42
of the NDPS Act, it would be apposite to reproduce the same. Sections 41
and 42 read as under :-
[41. Power to issue warrant and authorisation.— (1) A
Metropolitan Magistrate or a Magistrate of the first class or
any Magistrate of the second class specially empowered by
the State Government in this behalf, may issue a warrant
for the arrest of any person whom he has reason to believe
to have committed any offence punishable under this Act, or
for the search, whether by day or by night, of any building,
conveyance or place in which he has reason to believe any
narcotic drug or psychotropic substance or controlled
substance in respect of which an offence punishable under
this Act has been committed or any document or other
article which may furnish evidence of the commission of
such offence or any illegally acquired property or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed.
(2) Any such officer of gazetted rank of the
departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central
Government including the para-military forces or the armed
forces as is empowered in this behalf by general or special
order by the Central Government, or any such officer of the
revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this
behalf by general or special order of the State Government
if he has reason to believe from personal knowledge or
information given by any person and taken in writing that
any person has committed an offence punishable under this
Act or that any narcotic drug or psychotropic substance or
controlled substance in respect of which any offence under
this Act has been committed or any document or other
article which may furnish evidence of the commission of
such offence or any illegally acquired property or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed in any building, conveyance or
place, may authorise any officer subordinate to him but
superior in rank to a peon, sepoy or a constable to arrest
such a person or search a building, conveyance or place
whether by day or by night or himself arrest such a person
or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section
(1) is addressed and the officer who authorised the arrest or
search or the officer who is so authorised under sub-section
(2) shall have all the powers of an officer acting under
section 42.
42. Power of entry, search, seizure and arrest without
warrant or authorisation.—(1) Any such officer (being
an officer superior in rank to a peon, sepoy or constable) of
the departments of central excise, narcotics, customs,
revenue intellegence or any other department of the Central
Government including para-military forces or armed forces
as is empowered in this behalf by general or special order
by the Central Government, or any such officer (being an
officer superior in rank to a peon, sepoy or constable) of the
revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this
behalf by general or special order of the State Government,
if he has reason to believe from persons knowledge or
information given by any person and taken down in writing
that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence
punishable under this Act has been committed or any
document or other article which may furnish evidence of the
commission of such offence or any illegally acquired
property or any document or other article which may
furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any building,
conveyance or enclosed place, may between sunrise and
sunset,—
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe to be
liable to confiscation under this Act and any document or
other article which he has reason to believe may furnish
evidence of the commission of any offence punishable under
this Act or furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act: Provided
that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and
search such building, conveyance or enclosed place at any
time between sunset and sunrise after recording the grounds
of his belief.
(2)Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send
a copy thereof to his immediate official superior.
16. The import of the provisions contained in sections 41 and 42 was
illuminatingly postulated by the Supreme Court in the case of Roy V.D.
Vs. State of Kerala 1
“10 Sub-section (1) of Section 41 of the NDPS Act
enables a Metropolitan Magistrate or a Magistrate of the
first class or any Magistrate of the second class who is
especially empowered by the State Government in this
behalf to issue a warrant for the arrest of any person whom
he has reason to believe to have committed any offence
punishable under chapter IV of the said Act. Such a warrant
may also be issued for the search of any building,
conveyance or place in which he has reason to believe that
any narcotic drug or psychotropic substance in respect of
which an offence punishable under Chapter IV has been
committed or any document or other article which may
furnish evidence of the commission of such offence is kept
1 2000(8) SCC 590
or concealed. Arrest or search under a warrant issued in this
provision can be made at any time whether by day or by
night.
11 Sub-section (2) of Section 41 of the NDPS Act
entitles any officer of gazetted rank of the departments of
central excise, narcotics, customs, revenue intelligence or
any other department of the Central Government or of the
Border Security Force who has been empowered in that
behalf by general or special order of the Central
Government, or any officer of the revenue, drugs control,
excise, police or any other department of a State
Government as is empowered in that behalf by general or
special order of the State Government, to arrest a person or
search a building, conveyance or a place or to authorise any
officer subordinate to him but superior in rank to a peon,
sepoy or a constable, to arrest such a person or search a
building, conveyance or place whether by day or by night.
12 Sub-section (3) of Section 41 of the NDPS Act says
that the Officer to whom a warrant under sub-section (1) is
addressed and the officer who authorised the arrest or
search and the officer who is so authorised under subsection
(2) shall have all the powers of an officer acting
under Section 42.
13 Sub-section (1) of Section 42 of the NDPS
enumerates the powers of any such officer as is specified
therein and who is duly empowered by the Central
Government or the State Government, as the case may be.
If he has reason to believe either from personal knowledge
or on information given by any person and taken down in
writing, that (a) any narcotic drug, or psychotropic
substance, in respect of which an offence punishable under
Chapter IV has been committed; or (b) any document or
other article which may furnish evidence of the commission
of such offence is kept or concealed in any building,
conveyance or enclosed place, he may exercise the following
powers, between sunrise and sunset. They are: (i) enter into
any building and search any such building, conveyance or
place and if faced with any resistance, break open any door
and remove any such obstacle to such entry; (ii) seize: (a)
such drug or substance and other materials any other article
or any animal or conveyance which he has reason to believe
to be liable to confiscation under the Act and (b) any
document or other article which he has reason to believe
may furnish evidence of the commission of any offence
relating to such drug or substance; and (iii) detain and
search and if he thinks proper, arrest any person whom he
has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or
substance. The proviso to sub- section (1) says that an
empowered officer may also enter into any building,
conveyance or enclosed place at any time between sunset
and sunrise if he has reason to believe that a search warrant
or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for
the escape of an offender but in such a case before so
proceeding he is enjoined to record the grounds of his
belief.
14 Sub-section (2) of Section 42 contains a procedural
directive to the officer who takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto to send forthwith a copy
thereof to his immediate official superior.
15 It is thus seen that for exercising powers
enumerated under sub-section (1) of Section 42 at any time
whether by day or by night a warrant of arrest or search
issued by a Metropolitan Magistrate or a Magistrate of the
first class or any Magistrate of the second class who has
been specially empowered by the State Government in that
behalf or an authorisation under sub-section (2) of Section
41 by an empowered officer is necessary. Without such a
warrant or an authorisation, an empowered officer can
exercise those powers only between sunrise and sunset.
However, the proviso permits such an empowered or
authorised officer to exercise the said powers at any time
between sunset and sunrise if he has reason to believe that
such a search warrant or authorisation cannot be obtained
without affording opportunity for the concealment of
evidence or facility for the escape of an offender and he
records the grounds of his belief.”
17. After the aforesaid analysis of the provisions contained in sections
41 and 42 of the NDPS Act, the Supreme Court enunciated that it is plain
that no officer other than an empowered officer can resort to section
41(2) or exercise powers under section 42(1) of the NDPS Act or make a
complaint under clause (d) of sub-section (1) of section 36A of the NDPS
Act. Consequently, any collection of material, detention or arrest of a
person or search of a building or conveyance or seizure effected by an
officer not being an empowered officer or an authorised officer under
section 41(2) of the NDPS Act, lacks sanction of law and is inherently
illegal and as such the same cannot form the basis of a proceeding in
respect of offences under Chapter IV of the NDPS Act and use of such a
material by the prosecution vitiates the trial.
18. It would be contextually relevant to note the facts of the case in
which the aforesaid pronouncement was made. In the said case, the
accused therein was searched by an Excise Inspector on 21st November
1990. The charge-sheet was lodged under section 20(B) of the NDPS Act
on 20th February 1991. However, the statutory notification authorising the
concerned officer to file the complaint under section 36(1)(d) of the Act,
came to be issued on 20th October 1992. Initially, the accused was
discharged by the learned Special Judge under the provisions of section
227 of the Code. However, the Excise Inspector filed a fresh charge-sheet
against the accused for the very same offence on 17th May 1993. As the
application filed by the accused before High Court of Kerala for quashing
the said proceedings was dismissed, the matter came up before the
Supreme Court. After adverting to the provisions of sections 41 and 42
and the pronouncement of the Supreme Court in the case of State of
Punjab Vs. Balbir Singh 2, the Supreme Court expounded the aforesaid
legal position and quashed the prosecution.
19. The learned Senior Counsel for the applicant submitted that the
aforesaid pronouncement is on all four with the facts of the instant case.
As the initial seizure of contraband was by the officers neither authorized
nor empowered under the NDPS Act, the subsequent seizure by the
officers of the respondent No.1 sought to be relied upon by the
prosecution is legally unsustainable.
20. Reliance was also sought to be placed on another judgment of the
Supreme Court in the case of Union of India & Ors. Vs. L.D Balam Singh
3. In the said case, a search was conducted at the residence of the
accused who was an Army Personnel by the Army Officers and opium
weighing 4.900 Kgs. was allegedly recovered from the official quarter of
the accused. The accused was convicted and sentenced by the General
Court Martial. As the safeguards prescribed in sections 41 and 42 of the
NDPS Act were not adhered to, the High Court quashed the proceedings
2 1994(3) SCC 299
3 2002(9) SCC 73
including the order of conviction and sentence of General Court Martial.
On an appeal, the Supreme Court adverted to the provisions contained in
sections 41 and 42 and the observations in the aforesaid pronouncement
in the case of Roy V.D. (Supra) and, thereafter, held that the noncompliance
with the provisions contained in section 42 of the Act was
fatal to the prosecution. No matter, the accused therein was an Army
Personnel and the search and seizure was carried out by the Army
Officers and the accused was tried before the Court Martial.
21. To bolster up the aforesaid submissions, the learned Senior Counsel
submitted that the use of the words that the contraband was “isolated”
from the person of co-accused Dharmu Rathod in the statements of the
Income Tax Officers namely Azad Sanjay Kumar Singh and Shitendu
Singh, relied upon by the prosecution, is of no significance. The
substance of the matter is required to be taken into account. The facts
that the Income Tax Officers had searched the person by name Dharmu,
allegedly found the contraband substance and kept the same in the safe,
which was available in room No. 667 on 7th January 2014, do not admit
of any other inference than that of the search and seizure. The legal
connotation of the said exercise cannot be diluted by use of the word like
‘isolation’, submitted Mr. Mundargi. Support was sought to be drawn
from the meanings attributed to the words “seized” and “seizure” in the
Law Lexicons.
22. To appreciate the aforesaid submission, it is necessary to note the
chronology of events and the context of the matter. The statements of
Income Tax Officers, namely, Arun Kumar Singh and Shitendu Singh
indicate that search and seizure operation was conducted at Room No.
667, Taj Palace from 7th January 2014. The raiding party found the
contraband substance in possession of co-accused Dharmu Rathod. The
officers entertained suspicion. They claimed to have isolated the said
substance from Dharmu Rathod and apprised the superiors. The superior
officers came, and directed the raiding party to await further instructions
as regards the said substance and carry on income tax search proceedings.
The contraband was kept in an empty electronic safe in the presence of
public witnesses. It was locked. The safe was opened on 10th January
2014 when Shri S.G. Dole, the complainant came to Room No. 667.
23. It is pertinent to note that the panchanama of the income tax
search drawn by the officers of the income tax department records that
the said operation was commenced on 7th January 2014 and concluded on
10th January 2014 at 10:30 p.m. An annexure to the said panchnama
records that during the said search operation, some substance which
appeared to be drug was found and the officers of respondent No.1 were
requested to examine the said matter by communication dated 10th
January 2014. The said letter dated 10th January 2014, in turn, records
that in the course of rummaging the room No. 667 in Taj Palace Hotel,
Mumbai wherein the accused No.1 was present, the raiding party came
across some substance which appeared to be drug. Request was thus made
to the Zonal Director of respondent No.1 to verify the substance and
initiate action as may be found appropriate.
24. In the backdrop of the aforesaid facts, the pivotal question which
comes to the fore is 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? The phraseology of sections 41 and 42 of
NDPS Act, extracted above, 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.
25. A profitable reference in this context can be made to the judgment
of the Supreme Court in the case of State of Himachal Pradesh Vs. Sunil
Kumar 4, 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 Vs. Balbir Singh (Supra) and the Constitution
Bench judgment in the case of State of Punjab Vs. Baldev Singh 5, 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 process, the
Supreme Court explained the concept of chance recovery. Paragraph 13
thereof reads as under :
“13 The expression “chance recovery” has not
been defined anywhere and its plain and simple meaning
seems to be a recovery made by chance or by accident or
4 2014 (4) SCC 780
5 1999(6) SCC 172
unexpectedly. In Mohinder Kumar v. State 1998 8 SCC 655
this Court considered a chance recovery as one when a
police officer “stumbles on” narcotic drugs when he
makes a search. In Sorabkhan Gandhkhan Pathan v. State
of Gujarat 2004 13 SCC 608 the police officer, while
searching for illicit liquor, accidentally found some charas.
This was treated as a “chance recovery”.”
26. In the said case, the accused Sunil Kumar was apprehended in
suspicious circumstances in a routine “traffic check” by the police. The
accused was asked to disembark from the bus and on his search, a
polythene envelope containing a substance which looked like charas was
found concealed with the help of “parna”, a piece of cloth. Applying the
aforesaid test of chance recovery, the Supreme Court held that the police
party accidentally or unexpectedly came across drugs carried by the
accused and this could only be described as a recovery by chance since
the police were neither looking for drugs nor expecting to find drugs
carried by anybody. The Supreme Court extracted the following
observations in the case of State of Punjab Vs. Balbir Singh (Supra) in
para 11, which read as under :
“11 The relevant extract of para 25 of Balbir Singh reads as
follows:
“(1) If a police officer without any prior information
as contemplated under the provisions of the NDPS Act
makes a search or arrests a person in the normal course
of investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such
search is completed at that stage section 50 of the ndps
act would not be attracted and the question of
complying with the requirements thereunder would not
arise. If during such search or arrest there is a chance
recovery of any narcotic drug or psychotropic substance
then the police officer, who is not empowered, should
inform the empowered officer who should thereafter
proceed in accordance with the provisions of the NDPS
Act. If he happens to be an empowered officer also,
then from that stage onwards, he should carry out the
investigation in accordance with the other provisions of
the NDPS Act.”
27. 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 response of the income tax officers in taking over and
keeping the suspicious substance, in the circumstances, cannot be clothed
with the character of ‘seizure’, in the juristic sense. On the one hand, the
requisite intent to carry on search to find out contraband substance could
not have been attributed to the officers of the Income Tax department.
On the other hand, the officers also cannot be attributed with the
competence and authority to draw a definitive inference, at that stage,
that the substance found was indeed contraband. The justifiability of the
communication dated 10th January 2014 is required to be considered
through this prism.
28. Thus, I am not persuaded to accede to the submission on behalf of
the applicant that the very act of the Income Tax Officers taking over the
substance from the possession of the co-accused Dharmu Rathod
amounted to “seizure”.
29. The question of the delay in communication with the authority of
the respondent No.1, in the backdrop of the fact that the contraband was
found on 7th January 2014 and the communication was addressed to the
officers of respondent No.1 on 10th January 2014 and, thereafter, the said
contraband substance was seized by the officers of the respondent No.1,
may affect the credibility of the claim of the prosecution witnesses.
However, that is a matter for trial.
30. In the aforesaid view of the matter, I am persuaded to hold that
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. Hence, the
following order :
O R D E R
The revision application stands dismissed.
The observations made hereinabove are for the purpose of
determination of the application for discharge and the learned
Special Judge shall not be influenced by any of the observations
made hereinabove while determining the guilt or otherwise of the
accused at the trial.
( N. J. JAMADAR, J. )
Print Page
this Court considered a chance recovery as one when a
police officer “stumbles on” narcotic drugs when he
makes a search. In Sorabkhan Gandhkhan Pathan v. State
of Gujarat 2004 13 SCC 608 the police officer, while
searching for illicit liquor, accidentally found some charas.
This was treated as a “chance recovery”.”
26. In the said case, the accused Sunil Kumar was apprehended in
suspicious circumstances in a routine “traffic check” by the police. The
accused was asked to disembark from the bus and on his search, a
polythene envelope containing a substance which looked like charas was
found concealed with the help of “parna”, a piece of cloth. Applying the
aforesaid test of chance recovery, the Supreme Court held that the police
party accidentally or unexpectedly came across drugs carried by the
accused and this could only be described as a recovery by chance since
the police were neither looking for drugs nor expecting to find drugs
carried by anybody. The Supreme Court extracted the following
observations in the case of State of Punjab Vs. Balbir Singh (Supra) in
para 11, which read as under :
“11 The relevant extract of para 25 of Balbir Singh reads as
follows:
“(1) If a police officer without any prior information
as contemplated under the provisions of the NDPS Act
makes a search or arrests a person in the normal course
of investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such
search is completed at that stage section 50 of the ndps
act would not be attracted and the question of
complying with the requirements thereunder would not
arise. If during such search or arrest there is a chance
recovery of any narcotic drug or psychotropic substance
then the police officer, who is not empowered, should
inform the empowered officer who should thereafter
proceed in accordance with the provisions of the NDPS
Act. If he happens to be an empowered officer also,
then from that stage onwards, he should carry out the
investigation in accordance with the other provisions of
the NDPS Act.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 83 OF 2019
Anant Vardhan Pathak @ Anant Satish Pathak Vs Union of India
CORAM : N.J. JAMADAR, J
PRONOUNCED ON : 22nd May 2020
1. By this revision application, the applicant No.1 assails the legality,
propriety and correctness of an order passed by the learned Special
Judge, NDPS, Greater Bombay, on an application for discharge (Exh.56)
in NDPS Complaint Case No.49 of 2014 dated 22nd January 2019 whereby
the learned Judge was persuaded to reject the application.
2. Shorn of unnecessary details, the background facts necessary for the
determination of this revision application can be stated as under :-
a. The applicant is arraigned for the offences punishable under section
8(c) read with section 21(b) of The Narcotic Drugs and Psychotropic
Substances Act, 1985 (‘NDPS Act’) for having been found in
possession of and also consumed a narcotic drug along with two coaccused.
b. The indictment against the applicant is that on 7th January 2014,
the officers of the Income Tax Department conducted a search and
seizure operation at Room No. 667 of Taj Palace Hotel, Mumbai in
connection with the affairs of the group companies controlled by
one Yash Birla. The applicant is the President of the corporate
affairs of the said group. During the course of the said operation,
the applicant was found in the said room along with co-accused. In
the course of the said search and seizure operation, one of the coaccused
namely Dharmu Rathod was found in possession of eight
small self-knotted transparent polythene pouches containing white
powdery substance kept in white paper envelope. The officers of
Income Tax Department collected the said article and kept it in a
safe, which was available in the said room, in the presence of the
public witnesses, who were already summoned for the said search
and seizure operation. The Superior Officers of the Income Tax
Department thereafter informed the Zonal Director, Narcotics
Control Bureau, Mumbai (‘NCB’) on 10th January 2014 about the
said occurrence.
c. Thereupon, the empowered officers of NCB came to the said room
on 10th January 2014 and the said substance was checked with the
assistance of field testing kit. It transpired that the said substance
was cocaine weighing about 4.5 grams. The officers of NCB seized
the said contraband material in adherence to the procedure.
Panchanama came to be drawn. After completion of the
investigation, charge-sheet came to be lodged against the accused
for the offence punishable under section 8(c) read with section
21(b) of the NDPS Act.
d. The applicant filed an application under section 227 of the Code of
Criminal Procedure, 1973 (‘the Code’) for discharge. The respondent
No.1 resisted the application by filing say and objection.
e. The learned Special Judge was persuaded to reject the application
holding inter-alia that there was a strong prima-facie evidence
against the applicant which warranted framing of charge. Being
aggrieved by the impugned order, the applicant has invoked the
revisional jurisdiction of this Court.
3. I have heard Mr.Mundargi, the learned Senior Counsel for the
applicant and Ms. P.H. Kantharia, the learned Special P.P. for respondent
No.1, at some length. Perused the material on record.
4. To begin with, it is necessary to note that before the learned
Special Judge, the applicant had sought discharge on multiple grounds
including that the seizure memo prepared by the Income Tax Department
does not indicate the seizure of the alleged contraband material; the
contraband material was seized by the officers who were not empowered
to carry out search and seizure operation under the provisions of the
NDPS Act; there is a discrepancy in the remand report dated 12th January
2014 and 18th January 2014 regarding the accused on whose person the
contraband material was actually found and that the complainant Mr.
Dole, who had allegedly seized the contraband material on 10th January
2014 also carried out the investigation and thereby vitiated the
prosecution.
5. The learned Special Judge was not inclined to accede to any of the
aforesaid grounds to come to the conclusion that there was no material
which warranted framing of the charge against the accused. In the
process, the learned Special Judge observed that the fact that the
contraband material was collected by the Income Tax Officer on 7th
January 2014, during the course of search and seizure in connection with
the affairs of Yash Birla Group Companies, did not strictly constitute a
seizure of the contraband material. The Income Tax Officers had simply
collected the said contraband substance from the co-accused and stored it
in the safe and it was, in effect, seized by the empowered officers of
respondent No.1 on 10th January 2014. Thus, the challenge to the
tenability of the prosecution on the ground that the contraband substance
was seized by the officers of the Income Tax Department, who were not
empowered under the NDPS Act, did not merit acceptance.
6. The learned Senior Counsel mounted a serious challenge to the
aforesaid observation and finding of the learned Special Judge. Laying
emphasis on this aspect of the matter, the learned Senior Counsel would
urge that the learned Special Judge committed a manifest error in
recording a finding that the Income Tax Officers did not “seize” the
contraband substance on 7th January 2014. According to the learned
Senior Counsel, this erroneous view vitiated the impugned order. The
learned Senior Counsel strenuously urged that in view of the governing
provisions of the NDPS Act and binding precedents, the learned Special
Judge could not have taken the view that the contraband was not at all
seized on 7th January 2014 and it came to be seized after three days by
the empowered officers of respondent No.1.
7. Drawing attention of the Court to the provisions contained in
sections 41 and 42 of the NDPS Act, which indicate that the officers who
are empowered to carry out the search and seizure and prescribe the
statutory safeguards in the matter of carrying out the search and seizure,
it was urged with a decree of vehemence that the seizure of contraband
by the Income Tax Officers on 7th January 2014 did constitute a legal
seizure and the same being done by the officers neither armed with a
warrant nor authorization and empowerment under the provisions of
sections 41 and 42 of the NDPS Act, the prosecution is wholly untenable.
8. In opposition to this, the learned Special P.P. for respondent No.1
would urge that the context of the search and seizure operation by the
officers of the Income Tax Department cannot be lost sight of. The said
operation was in connection with the affairs of Yash Birla Group
Companies. The officers of the Income Tax Department, during the course
of the said operation, found the contraband material on the person of coaccused
Dharmu Rathod. The statements of the accused recorded under
section 67 of the NDPS Act squarely incriminate the accused. The officers
of the Income Tax Department, in the circumstances, were justified in
keeping the contraband substance in safe custody and informing the said
fact to the concerned officer of the respondent No.1. Placing reliance
upon the communication dated 10th January 2014 by the Director of the
Income Tax (Inv.)-I to the Zonal Director of the respondent No.1, the
learned Special PP stoutly submitted that the claim of the applicant that
the contraband substance was seized on 7th January 2014 is legally
untenable.
9. As the controversy sought to be raised revolves around the true
import and construction of the provisions contained in sections 41 and 42
of the NDPS Act, it would be apposite to reproduce the same. Sections 41
and 42 read as under :-
[41. Power to issue warrant and authorisation.— (1) A
Metropolitan Magistrate or a Magistrate of the first class or
any Magistrate of the second class specially empowered by
the State Government in this behalf, may issue a warrant
for the arrest of any person whom he has reason to believe
to have committed any offence punishable under this Act, or
for the search, whether by day or by night, of any building,
conveyance or place in which he has reason to believe any
narcotic drug or psychotropic substance or controlled
substance in respect of which an offence punishable under
this Act has been committed or any document or other
article which may furnish evidence of the commission of
such offence or any illegally acquired property or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed.
(2) Any such officer of gazetted rank of the
departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central
Government including the para-military forces or the armed
forces as is empowered in this behalf by general or special
order by the Central Government, or any such officer of the
revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this
behalf by general or special order of the State Government
if he has reason to believe from personal knowledge or
information given by any person and taken in writing that
any person has committed an offence punishable under this
Act or that any narcotic drug or psychotropic substance or
controlled substance in respect of which any offence under
this Act has been committed or any document or other
article which may furnish evidence of the commission of
such offence or any illegally acquired property or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this
Act is kept or concealed in any building, conveyance or
place, may authorise any officer subordinate to him but
superior in rank to a peon, sepoy or a constable to arrest
such a person or search a building, conveyance or place
whether by day or by night or himself arrest such a person
or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section
(1) is addressed and the officer who authorised the arrest or
search or the officer who is so authorised under sub-section
(2) shall have all the powers of an officer acting under
section 42.
42. Power of entry, search, seizure and arrest without
warrant or authorisation.—(1) Any such officer (being
an officer superior in rank to a peon, sepoy or constable) of
the departments of central excise, narcotics, customs,
revenue intellegence or any other department of the Central
Government including para-military forces or armed forces
as is empowered in this behalf by general or special order
by the Central Government, or any such officer (being an
officer superior in rank to a peon, sepoy or constable) of the
revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this
behalf by general or special order of the State Government,
if he has reason to believe from persons knowledge or
information given by any person and taken down in writing
that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence
punishable under this Act has been committed or any
document or other article which may furnish evidence of the
commission of such offence or any illegally acquired
property or any document or other article which may
furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any building,
conveyance or enclosed place, may between sunrise and
sunset,—
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe to be
liable to confiscation under this Act and any document or
other article which he has reason to believe may furnish
evidence of the commission of any offence punishable under
this Act or furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act: Provided
that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and
search such building, conveyance or enclosed place at any
time between sunset and sunrise after recording the grounds
of his belief.
(2)Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send
a copy thereof to his immediate official superior.
16. The import of the provisions contained in sections 41 and 42 was
illuminatingly postulated by the Supreme Court in the case of Roy V.D.
Vs. State of Kerala 1
“10 Sub-section (1) of Section 41 of the NDPS Act
enables a Metropolitan Magistrate or a Magistrate of the
first class or any Magistrate of the second class who is
especially empowered by the State Government in this
behalf to issue a warrant for the arrest of any person whom
he has reason to believe to have committed any offence
punishable under chapter IV of the said Act. Such a warrant
may also be issued for the search of any building,
conveyance or place in which he has reason to believe that
any narcotic drug or psychotropic substance in respect of
which an offence punishable under Chapter IV has been
committed or any document or other article which may
furnish evidence of the commission of such offence is kept
1 2000(8) SCC 590
or concealed. Arrest or search under a warrant issued in this
provision can be made at any time whether by day or by
night.
11 Sub-section (2) of Section 41 of the NDPS Act
entitles any officer of gazetted rank of the departments of
central excise, narcotics, customs, revenue intelligence or
any other department of the Central Government or of the
Border Security Force who has been empowered in that
behalf by general or special order of the Central
Government, or any officer of the revenue, drugs control,
excise, police or any other department of a State
Government as is empowered in that behalf by general or
special order of the State Government, to arrest a person or
search a building, conveyance or a place or to authorise any
officer subordinate to him but superior in rank to a peon,
sepoy or a constable, to arrest such a person or search a
building, conveyance or place whether by day or by night.
12 Sub-section (3) of Section 41 of the NDPS Act says
that the Officer to whom a warrant under sub-section (1) is
addressed and the officer who authorised the arrest or
search and the officer who is so authorised under subsection
(2) shall have all the powers of an officer acting
under Section 42.
13 Sub-section (1) of Section 42 of the NDPS
enumerates the powers of any such officer as is specified
therein and who is duly empowered by the Central
Government or the State Government, as the case may be.
If he has reason to believe either from personal knowledge
or on information given by any person and taken down in
writing, that (a) any narcotic drug, or psychotropic
substance, in respect of which an offence punishable under
Chapter IV has been committed; or (b) any document or
other article which may furnish evidence of the commission
of such offence is kept or concealed in any building,
conveyance or enclosed place, he may exercise the following
powers, between sunrise and sunset. They are: (i) enter into
any building and search any such building, conveyance or
place and if faced with any resistance, break open any door
and remove any such obstacle to such entry; (ii) seize: (a)
such drug or substance and other materials any other article
or any animal or conveyance which he has reason to believe
to be liable to confiscation under the Act and (b) any
document or other article which he has reason to believe
may furnish evidence of the commission of any offence
relating to such drug or substance; and (iii) detain and
search and if he thinks proper, arrest any person whom he
has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or
substance. The proviso to sub- section (1) says that an
empowered officer may also enter into any building,
conveyance or enclosed place at any time between sunset
and sunrise if he has reason to believe that a search warrant
or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for
the escape of an offender but in such a case before so
proceeding he is enjoined to record the grounds of his
belief.
14 Sub-section (2) of Section 42 contains a procedural
directive to the officer who takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto to send forthwith a copy
thereof to his immediate official superior.
15 It is thus seen that for exercising powers
enumerated under sub-section (1) of Section 42 at any time
whether by day or by night a warrant of arrest or search
issued by a Metropolitan Magistrate or a Magistrate of the
first class or any Magistrate of the second class who has
been specially empowered by the State Government in that
behalf or an authorisation under sub-section (2) of Section
41 by an empowered officer is necessary. Without such a
warrant or an authorisation, an empowered officer can
exercise those powers only between sunrise and sunset.
However, the proviso permits such an empowered or
authorised officer to exercise the said powers at any time
between sunset and sunrise if he has reason to believe that
such a search warrant or authorisation cannot be obtained
without affording opportunity for the concealment of
evidence or facility for the escape of an offender and he
records the grounds of his belief.”
17. After the aforesaid analysis of the provisions contained in sections
41 and 42 of the NDPS Act, the Supreme Court enunciated that it is plain
that no officer other than an empowered officer can resort to section
41(2) or exercise powers under section 42(1) of the NDPS Act or make a
complaint under clause (d) of sub-section (1) of section 36A of the NDPS
Act. Consequently, any collection of material, detention or arrest of a
person or search of a building or conveyance or seizure effected by an
officer not being an empowered officer or an authorised officer under
section 41(2) of the NDPS Act, lacks sanction of law and is inherently
illegal and as such the same cannot form the basis of a proceeding in
respect of offences under Chapter IV of the NDPS Act and use of such a
material by the prosecution vitiates the trial.
18. It would be contextually relevant to note the facts of the case in
which the aforesaid pronouncement was made. In the said case, the
accused therein was searched by an Excise Inspector on 21st November
1990. The charge-sheet was lodged under section 20(B) of the NDPS Act
on 20th February 1991. However, the statutory notification authorising the
concerned officer to file the complaint under section 36(1)(d) of the Act,
came to be issued on 20th October 1992. Initially, the accused was
discharged by the learned Special Judge under the provisions of section
227 of the Code. However, the Excise Inspector filed a fresh charge-sheet
against the accused for the very same offence on 17th May 1993. As the
application filed by the accused before High Court of Kerala for quashing
the said proceedings was dismissed, the matter came up before the
Supreme Court. After adverting to the provisions of sections 41 and 42
and the pronouncement of the Supreme Court in the case of State of
Punjab Vs. Balbir Singh 2, the Supreme Court expounded the aforesaid
legal position and quashed the prosecution.
19. The learned Senior Counsel for the applicant submitted that the
aforesaid pronouncement is on all four with the facts of the instant case.
As the initial seizure of contraband was by the officers neither authorized
nor empowered under the NDPS Act, the subsequent seizure by the
officers of the respondent No.1 sought to be relied upon by the
prosecution is legally unsustainable.
20. Reliance was also sought to be placed on another judgment of the
Supreme Court in the case of Union of India & Ors. Vs. L.D Balam Singh
3. In the said case, a search was conducted at the residence of the
accused who was an Army Personnel by the Army Officers and opium
weighing 4.900 Kgs. was allegedly recovered from the official quarter of
the accused. The accused was convicted and sentenced by the General
Court Martial. As the safeguards prescribed in sections 41 and 42 of the
NDPS Act were not adhered to, the High Court quashed the proceedings
2 1994(3) SCC 299
3 2002(9) SCC 73
including the order of conviction and sentence of General Court Martial.
On an appeal, the Supreme Court adverted to the provisions contained in
sections 41 and 42 and the observations in the aforesaid pronouncement
in the case of Roy V.D. (Supra) and, thereafter, held that the noncompliance
with the provisions contained in section 42 of the Act was
fatal to the prosecution. No matter, the accused therein was an Army
Personnel and the search and seizure was carried out by the Army
Officers and the accused was tried before the Court Martial.
21. To bolster up the aforesaid submissions, the learned Senior Counsel
submitted that the use of the words that the contraband was “isolated”
from the person of co-accused Dharmu Rathod in the statements of the
Income Tax Officers namely Azad Sanjay Kumar Singh and Shitendu
Singh, relied upon by the prosecution, is of no significance. The
substance of the matter is required to be taken into account. The facts
that the Income Tax Officers had searched the person by name Dharmu,
allegedly found the contraband substance and kept the same in the safe,
which was available in room No. 667 on 7th January 2014, do not admit
of any other inference than that of the search and seizure. The legal
connotation of the said exercise cannot be diluted by use of the word like
‘isolation’, submitted Mr. Mundargi. Support was sought to be drawn
from the meanings attributed to the words “seized” and “seizure” in the
Law Lexicons.
22. To appreciate the aforesaid submission, it is necessary to note the
chronology of events and the context of the matter. The statements of
Income Tax Officers, namely, Arun Kumar Singh and Shitendu Singh
indicate that search and seizure operation was conducted at Room No.
667, Taj Palace from 7th January 2014. The raiding party found the
contraband substance in possession of co-accused Dharmu Rathod. The
officers entertained suspicion. They claimed to have isolated the said
substance from Dharmu Rathod and apprised the superiors. The superior
officers came, and directed the raiding party to await further instructions
as regards the said substance and carry on income tax search proceedings.
The contraband was kept in an empty electronic safe in the presence of
public witnesses. It was locked. The safe was opened on 10th January
2014 when Shri S.G. Dole, the complainant came to Room No. 667.
23. It is pertinent to note that the panchanama of the income tax
search drawn by the officers of the income tax department records that
the said operation was commenced on 7th January 2014 and concluded on
10th January 2014 at 10:30 p.m. An annexure to the said panchnama
records that during the said search operation, some substance which
appeared to be drug was found and the officers of respondent No.1 were
requested to examine the said matter by communication dated 10th
January 2014. The said letter dated 10th January 2014, in turn, records
that in the course of rummaging the room No. 667 in Taj Palace Hotel,
Mumbai wherein the accused No.1 was present, the raiding party came
across some substance which appeared to be drug. Request was thus made
to the Zonal Director of respondent No.1 to verify the substance and
initiate action as may be found appropriate.
24. In the backdrop of the aforesaid facts, the pivotal question which
comes to the fore is 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? The phraseology of sections 41 and 42 of
NDPS Act, extracted above, 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.
25. A profitable reference in this context can be made to the judgment
of the Supreme Court in the case of State of Himachal Pradesh Vs. Sunil
Kumar 4, 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 Vs. Balbir Singh (Supra) and the Constitution
Bench judgment in the case of State of Punjab Vs. Baldev Singh 5, 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 process, the
Supreme Court explained the concept of chance recovery. Paragraph 13
thereof reads as under :
“13 The expression “chance recovery” has not
been defined anywhere and its plain and simple meaning
seems to be a recovery made by chance or by accident or
4 2014 (4) SCC 780
5 1999(6) SCC 172
unexpectedly. In Mohinder Kumar v. State 1998 8 SCC 655
this Court considered a chance recovery as one when a
police officer “stumbles on” narcotic drugs when he
makes a search. In Sorabkhan Gandhkhan Pathan v. State
of Gujarat 2004 13 SCC 608 the police officer, while
searching for illicit liquor, accidentally found some charas.
This was treated as a “chance recovery”.”
26. In the said case, the accused Sunil Kumar was apprehended in
suspicious circumstances in a routine “traffic check” by the police. The
accused was asked to disembark from the bus and on his search, a
polythene envelope containing a substance which looked like charas was
found concealed with the help of “parna”, a piece of cloth. Applying the
aforesaid test of chance recovery, the Supreme Court held that the police
party accidentally or unexpectedly came across drugs carried by the
accused and this could only be described as a recovery by chance since
the police were neither looking for drugs nor expecting to find drugs
carried by anybody. The Supreme Court extracted the following
observations in the case of State of Punjab Vs. Balbir Singh (Supra) in
para 11, which read as under :
“11 The relevant extract of para 25 of Balbir Singh reads as
follows:
“(1) If a police officer without any prior information
as contemplated under the provisions of the NDPS Act
makes a search or arrests a person in the normal course
of investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such
search is completed at that stage section 50 of the ndps
act would not be attracted and the question of
complying with the requirements thereunder would not
arise. If during such search or arrest there is a chance
recovery of any narcotic drug or psychotropic substance
then the police officer, who is not empowered, should
inform the empowered officer who should thereafter
proceed in accordance with the provisions of the NDPS
Act. If he happens to be an empowered officer also,
then from that stage onwards, he should carry out the
investigation in accordance with the other provisions of
the NDPS Act.”
27. 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 response of the income tax officers in taking over and
keeping the suspicious substance, in the circumstances, cannot be clothed
with the character of ‘seizure’, in the juristic sense. On the one hand, the
requisite intent to carry on search to find out contraband substance could
not have been attributed to the officers of the Income Tax department.
On the other hand, the officers also cannot be attributed with the
competence and authority to draw a definitive inference, at that stage,
that the substance found was indeed contraband. The justifiability of the
communication dated 10th January 2014 is required to be considered
through this prism.
28. Thus, I am not persuaded to accede to the submission on behalf of
the applicant that the very act of the Income Tax Officers taking over the
substance from the possession of the co-accused Dharmu Rathod
amounted to “seizure”.
29. The question of the delay in communication with the authority of
the respondent No.1, in the backdrop of the fact that the contraband was
found on 7th January 2014 and the communication was addressed to the
officers of respondent No.1 on 10th January 2014 and, thereafter, the said
contraband substance was seized by the officers of the respondent No.1,
may affect the credibility of the claim of the prosecution witnesses.
However, that is a matter for trial.
30. In the aforesaid view of the matter, I am persuaded to hold that
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. Hence, the
following order :
O R D E R
The revision application stands dismissed.
The observations made hereinabove are for the purpose of
determination of the application for discharge and the learned
Special Judge shall not be influenced by any of the observations
made hereinabove while determining the guilt or otherwise of the
accused at the trial.
( N. J. JAMADAR, J. )
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