TMI Blog2020 (5) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... operation is carried out by the officers who are neither empowered nor authorized with the purpose or under a belief that the suspect possesses the contraband substance, then the provisions of the Act would apply with full force and the prosecution would not be permitted to rely upon such search and the trial on the strength of such seizure would stand vitiated. However, when the officers stumbled upon the contraband substance in possession of a person in a totally different proceedings, like the income tax search at hand, different considerations ought to come into play lest the ground of non-compliance of the provisions contained in sections 41 and 42 of the NDPS Act, even in case of an accidental recovery of contraband substance, would cause serious prejudice to the cause of administration of criminal justice. A profitable reference in this context can be made to the judgment of the Supreme Court in the case of STATE OF HIMACHAL PRADESH VERSUS SUNIL KUMAR [ 2014 (3) TMI 1164 - SUPREME COURT] , wherein, in the context of compliance of the provisions contained in section 50 of the Act, the Supreme Court considered the question : whether the accidental or chance recovery of nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 co-accused. 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 Supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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: Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted 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 2014 (4) SCC 780, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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