- Vide decision of High Court of Bombay in Ananth Vardhan Pathak Vs Union of India
Facts of the case:
- On 7-1-2014, a search and seizure operation was conducted by Income Tax Department at a particular room in Taj Palace Hotel, Mumbai in connection with affairs of Yash Birla Group Companies. Applicant, who was President of Corporate Affairs of said group was found in said room along with co-accused.
- In course of said search and seizure operation, the co-accused was found in possession of eight small self-knotted transparent polythene pouches containing white powdery substance kept in a white paper envelope. The officers collected said article and kept it in a safe, which was available in said room, in presence of public witnesses, who were already summoned for said search and seizure operation. Superior officers of Income Tax Department thereafter informed Narcotics Control Bureau(NCB) on 10-1-2014 about said occurrence.
- Thereafter, empowered officers of NCB came to said room on same day and said substance was checked and it transpired that said substance was cocaine weighing about 4.5 grams. The officers of NCB seized said contraband material in adherence to procedure. After completion of investigation, charge- sheet was led against accused for offence punishable under section 8(c) read with section 21(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
- The applicant filed an application for discharge on ground that officers who were not empowered under NDPS Act could not have conducted seizure of contraband. The Special Judge rejected application holding that there was strong prima facie evidence against applicant which warranted framing of charge.
- On revision application, applicant submitted that seizure of contraband by Income Tax Officers on 7-1-2014 did constitute a legal seizure and same being done by officers neither armed with a warrant nor authorization and empowerment under provisions of sections 41 and 42 of the NDPS Act, prosecution was wholly untenable.
Judgement:
The Honorable High court of Bombay held the case as follows:
- The pivotal question which comes to fore is whether act of Income Tax Officers of collecting and keeping contraband in safe custody on 7-1-2014 constitutes a seizure? The phraseology of sections 41 and 42 of NDPS Act, indicates that 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.
- However, when officers stumbled upon contraband substance in possession of a person in a totally different proceedings, like income tax search at hand, different considerations ought to come into play lest ground of non-compliance of provisions contained in sections 41 and 42 of NDPS Act, even in case of an accidental recovery of contraband substance, would cause serious prejudice to cause of administration of criminal justice.
- The action of officers of the Income Tax Department in apprising said matter of finding suspicious substance during course of Income Tax search, in given circumstances, cannot be said to be inconceivable and unjustifiable. The response of Income Tax Officers in taking over and keeping suspicious substance, in circumstances, cannot be clothed with character of 'seizure', in juristic sense. On one hand, requisite intent to carry on search to find out contraband substance could not have been attributed to officers of Income Tax Department. On other hand, officers also could not be attributed with competence and authority to draw a definitive inference, at that stage, that substance found was indeed contraband.
- Thus, submission on behalf of applicant that very act of Income Tax Officers taking over substance from possession of co-accused amounted to 'seizure' was not acceptable.
Accordingly, Special Judge was within his rights in recording a finding that there was adequate material which justified a strong suspicion of accused/applicant having committed offence punishable under section 8(c) read with section 21(b) of NDPS Act. Thus, no interference was warranted in exercise of revisional jurisdiction.