TMI Blog2002 (3) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed - 31 of 2000 - - - Dated:- 20-3-2002 - R.P. Sethi and K.G. Balakrishnan, JJ. [Judgment per : K.G. Balakrishnan, J.]. - This appeal is directed against the judgment of the High Court of Rajasthan challenging the conviction and sentence of 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 10 years' rigorous imprisonment and a fine of ₹ 1 lakh and in default of payment of fine further to undergo two years and six months' rigorous imprisonment. 2. Appellant Khet Singh was tried along with one Kanhaiya Lal for the aforesaid offences and Kanhaiya Lal was acquitted by the Sessions Court. The case of the prosecution is that on 6-5-1989, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 passengers. 5. 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 procedure and guidelines as to the manner in which search and seizure are to be effected. If there is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin 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. 9. 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 that account. 10. 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 preview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch or seizure is admissible or not was considered by this Court in series of decisions and one of the earliest decisions is the decision of the Constitution Bench in Pooran Mal v. The Director of Inspection (Investigation), New Delhi and others, 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 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. 13. In State of Punjab v. Baldev Singh - 1999 (6) SCC 172, the Constitution 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 prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cials. 16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence. 17. In the present case, though the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the Office of the Customs Department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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