By TIOL News Service

NEW DELHI, FEB 27, 2014: THIS case can perhaps be used in NACEN to train the officers as how not to do a seizure, especially in proceedings under allied Acts like NDPS Act. It is sad to see a drug peddler walking scot free due to costly technical mistakes by the DRI. The Trial Court acquitted the accused on some serious technical grounds like the DRI had faked the documents, manipulated summon document and officer who seized the contraband had no authorization etc.

This is a petition seeking leave to appeal against the impugned judgment dated 14th February 2013 passed by Special Judge, NDPS in Sessions Case No. 18A/08 acquitting the Respondent of the offences under Sections 21 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act').

The case of the prosecution is that on 6th October 2007 an intelligence was gathered by, an Intelligence Officer of Directorate of Revenue (DRI) (PW1), through a reliable source that the Respondent, carrying narcotic drugs, would be coming in a Bolero Jeep at HP Petrol Pump, Mahipal Pur, near Radisson Hotel, New Delhi, at around 10.00 p.m. The intelligence was reduced to writing, placed before the senior officer (PW2), who directed another officer (PW9) to immediately organise a team for surveillance and interception of the person along with the contraband substance.

After associating two public witnesses, the DRI officers are stated to have left their office at 8.00 p.m. and reached the petrol pump at about 9.00 p.m. At around 10.30 p.m., the Bolero jeep arrived at the petrol pump and was immediately intercepted. The driver of the jeep was the Respondent, who happened to be a resident of Village Sammipur in District Jalandhar, Punjab.

The case of the prosecution is that a detailed panchnama was prepared with regard to the interception, search and seizure. Further, it was stated that in response to the summons issued to the accused under Section 67 of the NDPS Act, the accused appeared and tendered his voluntary statement.

The trial court acquitted the accused on the following grounds:

i. Section 50 of the NDPS Act was contravened in as much as the notice issued under that provision, Ex. PW11/B, to the accused at the spot appeared to be a fake document, created and manufactured after the alleged time of interception .

ii. Sections 41 and 42 of the NDPS Act were not complied with since the Investigating Officer (IO) (PW11) did not possess a valid authorisation to effect the seizure. The authorisation was given by PW2 Sanjay Bansal in favour of PW9 Shri N.D. Azad who in turn authorised Shri Devender Singh (PW7). However, PW7 Devender Singh was neither the seizing officer nor a member of the raiding team of DRI. The seizure of this case was effected by PW11 Shri K. Shashi Bhushan in whose favour there was no authorization. Merely because PW9 was himself a member of the raiding party, it would not obviate the need for a valid authorisation in favour of PW11 to carry out the seizure.

iii. Section 43 of the NDPS Act would not apply since the seizure was effected not by way of chance recovery but on the basis of specific prior information.

iv. The summons issued to the Respondent under Section 67 of NDPS Act appeared to be a document prepared and manipulated subsequent to the search and seizure from the accused. While the retraction application of the Respondent was in Punjabi, his statement was in Hindi of poor quality and this raised further doubts as to its genuineness.

v. The failure to associate public witnesses in the search and seizure raised sufficient doubts as to their genuineness; there were also doubts regarding the site plan; the issuance of the seal of DRI by PW10 in favour of PW11 and the very constitution of the raiding team.

The High Court agreed with the findings of the trial court and refused to grant leave to appeal against the trial court's order. The High Court observed:

++ In the present case a personal search was also made of the body of the accused. A notice under Section 50 NDPS Act had to be mandatorily issued.

++ The notice under Section 50 mentions the time of occurrence as around "11.30 hrs. today" which was 6th October 2007. In the absence of any indication that it was ‘p.m.' or ‘a.m.' it could well be taken to be ‘a.m'. Even if it was taken to be p.m., it contradicted the case of the prosecution that the accused was apprehended at around 10.30 p.m.

++ The second factor pointed out is that a typed notice could not possibly have been served at the time and place of apprehension of the accused. There was nothing to show that the raiding party took any computer with them from which a typed notice could have been prepared at the spot. These factors indicate that the notice Ex. PW11/B was a document prepared subsequently. There is no satisfactory explanation for the above glaring discrepancies concerning the notice issued to the accused under Section 50 of the NDPS Act.

++ The mere fact that PW9 went along with the raiding party did not mean that he was not required to authorise the officer who in fact effected the seizure. The seizure in the case was effected by PW11 who was required to be specifically authorised to do so. The fact of the matter was that there was no specific authorisation in favour of PW11.

++ As regards the summons, although it was dated 6th October 2007, the fact of the matter is that the panchnama proceedings concluded at 10.00 a.m. only on 7th October 2007. The question of accused appearing at 7.00 a.m. on 7th October 2007, therefore, simply did not arise. The finding of the trial court that the said summons could never have been served on the accused on 6th October 2007 and that the said document was possibly prepared subsequently cannot be faulted.

(See 2014-TIOL-242-HC-DEL-NDPS)