NDPS Act | Preparing Seizure Memo At Place Other Than Scene Of Recovery Makes Seizure Defective, Creates Reasonable Doubt: Rajasthan High Court

The bench of Justice Rajendra Prakash Soni was hearing a bail application filed by an accused charged under the NDPS Act for allegedly found to be in possession of over 4 kg of opium. It was the case of the petitioner that the search was affected and the applicant was detained in Udaipur, however, no seizure memo was prepared at that time by the seizure officer. Instead, the petitioner along with alleged contraband was taken to the office of the narcotics department in Neemuch where the seizure memo was prepared.

The counsel for the applicant argued that the seizure memo should have been prepared at the place where the contraband article was seized from the applicant. Causing recovery of the contraband material and preparing seizure memos at different places caused serious prejudice to the applicant.

Agreeing with the arguments of the counsel for the petitioner, the Court acknowledged the fact that the alleged contraband remained in the custody of the preventive squad for 24 hours without any legal actions and during this period a long distance from Udaipur to Neemuch was covered along with the contraband. The Court highlighted Clause 1.5 of the Standing Instruction No. 1/88 issued by the Narcotics Control Bureau which lays down the procedure regarding the place and time for the drawal of samples. It said:

“Samples from The Narcotic Drugs And Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot”.

The Court held that the procedures prescribed in the Standing Orders were based on logic and needed to be observed mandatorily because if rendered optional, these would turn into a “worthless piece of paper”. The Court also referred to the Supreme Court case of Khet Singh v Union of India in which it was held that if the search and seizure were in defiance of the law and procedure and there was a possibility of the collected evidence being tampered with, the evidence might not be admissible. It was held:

“As the possession of any narcotic drugs or psychotropic substance by itself is made punishable under the act, the seizure of the article from the accused is of vital importance. If there is any violation of these Standing Orders/guidelines, Courts would take a serious view.”

In light of this analysis, the Court held that since the seizure in the present case was not as per the standing orders, it imported an element of reasonable doubt and provided sufficient ground for the applicant to be released on bail. Accordingly, the bail application was accepted.

Title: Kuka Ram v the State of Rajasthan

Citation: 2024 LiveLaw (Raj) 157