Seizure Memo Prepared Later at the Customs Office: Supreme Court Upholds NDPS Conviction as No Prejudice Was Shown

On 6.5.1989 customs officers checking vehicles near Brahamsar crossing, on the road from Jaisalmer towards Ramgarh, found the appellant in a truck with a cloth basket holding a polythene bag of black substance suspected to be opium (para 2). He was taken to the customs office, where the opium was seized, sampled and sealed; the laboratory confirmed it was opium (para 2). He was convicted under Sections 17, 18 and 21 of the NDPS Act and sentenced to ten years' rigorous imprisonment and a fine of Rs. 1 lakh, and the Rajasthan High Court upheld this (paras 1-2). A Section 50 plea had failed because the opium was found in a general search of vehicles (para 3).

Search and seizure are serious aspects of an NDPS investigation, and if the prescribed procedure is violated courts take a serious view and the benefit goes to the accused (para 5). The Narcotics Control Bureau's instructions do not have the force of law but must be followed by investigating officers (para 10). A seizure mahazar should be prepared at the spot; where that is not possible, as in a chance recovery without witnesses or facilities, it may be prepared later on justifiable grounds, and the officer should record his reasons (para 10). On illegally obtained evidence, the Court referred to Pooran Mal, Baldev Singh, Prithi Chand, Radha Kishan and Natwarlal Damodardas Soni (paras 12-15). It held that a procedural illegality in search and seizure does not make the evidence inadmissible; the court must see whether serious prejudice was caused, and only a search in complete defiance of the law with a possibility of tampering may make the evidence inadmissible (para 16). Here the mahazar was prepared at the customs office with the accused present throughout, and no meddling with the opium was alleged, so possession was rightly found (para 17).