Holding

Procedural lapses in search and seizure do not per se invalidate the evidence; absent serious prejudice, the seized opium was admissible and the conviction stood.

Summary

Khet Singh was apprehended while travelling in a truck that contained a polythene bag of opium. The contraband was seized and samples were taken at the Customs Office, but the seizure mahazar was not prepared at the spot of recovery as required by the NDPS Act and related standing instructions. The appellant contended that this procedural lapse, along with alleged delays in depositing the seized drug, rendered the evidence inadmissible. The Supreme Court held that while the NDPS Act prescribes detailed procedures, a failure to follow them does not automatically exclude evidence unless it causes serious prejudice or a risk of tampering. Since the accused was present throughout, no prejudice was shown, and the opium was correctly linked to him, the conviction under Sections 17, 18 and 21 of the NDPS Act was upheld. The appeal was dismissed.

Issues considered

Whether the failure to prepare a seizure mahazar at the spot of recovery violates Section 50 of the NDPS Act and makes the seized evidence inadmissible.
Whether non‑compliance with the Narcotics Control Bureau's standing instructions on sample drawing and deposit within 48 hours warrants exclusion of evidence.
Whether procedural irregularities in search and seizure under the NDPS Act automatically render the evidence inadmissible under the Evidence Act, 1872.

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 165
Indian Evidence Act, 1872s. 5
Narcotic Drugs and Psychotropic Substances Act, 1985s. 17, s. 18, s. 21, s. 50, s. 51

Subjects

NDPS Actsearch and seizureseizure mahazarprocedural irregularityevidence admissibilitynarcoticscriminal procedureopium

Judgment

A KHET SINGH
v.
UNION OF INDIA

MARCH 20, :2002

B [R.P. SETHI AND K.G. BALAKRISHNAN, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985: Section 50.
~
Contraband article-Search and seizure of-Held: Search and seizure
c of contraband article are to be effected in accordance with the NDPS Act and
the Rules and guidelines framed thereunder-If there is any violations of these '
~

guidelines, courts would take a serious view and the benefit would be extended
to the accused.

Contraband article-Search and seizure of-Seizure Mahazar-
D Preparation of-Held: Seizure mahazar should be prepared at the spot itself
from where the contraband article is recovered-However, if the seizure
mahazar cannot be prepared at the spot itself, it can be prepared at a later
'Jo.
stage provided there are justifiable and reasonable grounds to do so.

Evidence Act, 1872:
E
Section 5-Relevancy offacts-Illegal evidence-Admissibility of-Held:
Such evidence will not become inadmissible-But court should consider all
the circumstances to see if any serious prejudice is caused to the accused. If
such evidence is in complete defiance of law and there is a possibility of
F tampering with such evidence, it is not liable to be admissible.

The appellant was convicted and sentenced under Sections 17, 18, and
21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The High
Court upheld the conviction and sentence. Hence this appeal.

G According to the prosecution, the appellant was found sitting in a truck •
with a cloth basket in his hand. A polythene bag was found in the basket which
,I.
contained some black substance. The appellant was brought to the Office of
the Customs where the said black substance was seized, samples were taken
from it and were sealed. ~n chemical examination it was revealed that the
samples were opium.
H 598 •
KHET SINGH v. U.O.l. 599

On behalf of the appellant it was contended that the police officer did A
not prepare the seizure mahazar at the spot and thereby violated provisions
of the NDPS Act; that there was delay in depositing the seized drug in the
godown; and, therefore, the evidence obtained by such illegal seizure was
inadmissible.

Dismissing the appeal, the Court B

HELD: l. 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
Narcotic Drugs and Psychotropic Substances Act, 1985. The NDPS Act and
the Rules framed thereunder have laid down a detailed procedure and
guideline as to the manner in which search and seizure are to be effected. If
c
there is any violation of these guidelines, Court would take a serious view
and the benefit would be extended to the accused. The offences under the
NDPS Act are grave in nature and the minimum punishment prescribed
under the Statute is incarceration for a long period. As the possession of any
narcotic drugs or psychotropic substance by itself is made punishable under D
the Act, the seizure of the article from the appellant is of vital importance.
,,
~
,
[602-D]

2. It is true that when a contraband article is seized durihg investigation
or search, a seizure mahazar should be prepared at the spot in accordance
with law. There may, however, be circumstances in which it would not have E
been possible for the officer to prepare the mahazar at the spot, as it may be
a chance recovery and the officer may not have the facility to prepare a seizure
mahazar at the spot itself. If the seizure is effected at the place where there
are no witnesses and there is no facility for weighing the contraband article
or other requisite facilities are lacking, the officer can prepare the seizure
F
mahazar at a later stage as and when the facilities are available, provided
there are justifiable and reasonable grounds to do so. In that event, where
the seizure mahazar is prepared at a later stage, the officer should indicates
his reasons as to why he had not prepared the mahazar at the spot of recovery.
• If there is inordinate delay in preparing the seizure mahazar, that may give
an opportunity to tamper with the contraband article allegedly seized from G
' the accused. There may also be allegations that the article seized was by itself

-
'
substituted and some other items were planted to falsely implicate the accused.
To avoid these suspicious circumstances and to have a fair procedure in
respect of search and seizure, it is always desirable to prepare the seizure
mahazar at the spot itself from where the contraband articles were taken into
H
~-

600 SUPREME. COURT REPORTS (2002] 2 S.C.R.

A custody. [604-B-E]

3. 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
B 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. [606-D-E)

C Pooran Mal v. Director of Inspection (Investigation), [1974] 1 SCC 345,
followed.

State ofPunjab v. Baldev Singh, [1999] 6 SCC 172; State ofH.P. v. Prithi
Chand, [1996] 2 SCC 37; Radha Kishan v. State of UP., Am (1963) SC 822
and State of Maharashtra v. Natwarlal Damodardas Soni, [1980) 4 SCC 669,
D relied on.

4. Though the seizure mahazar was not prepared at the spot where the
accused persons were found to be in possession of the contraband al'.ficle but
the same was d~ne only at the Office of the Customs Department ~ile the
accused persons were very much present throughout, there was no allegation
E or suggestion that the contraband article was, in any way, meddled with by
the officers. Therefore, the appellant has rightly been found to be in possession
of the opium. [606-F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
31 of 2000.
F
From the Judgment and Order dated 20.9.95 of the Rajasthan High
Court in S.B.Crl.A. No. 33 l of 1994.

Doonger Singh, V.J. Francis, P.I. Jose, Jenis and A. Radhakrishnan for
the Appellant.
G
.i
P.P. Malhotra, Ms. Binu Tamta and B. Krishna Prasad, for the
Respondent.

The Judgment of the Court was delivered by:
.....
H K.G. BALAKRISHNAN, J. This appeal is directed against the judgment
KHET SINGH v. U.0.1. [K.G. BALAKRISHNAN, J.J 60 I

of the High Court of Rajasthan challenging the conviction and sentence of A
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 IO years' rigorous imprisonment
and a fine of Rs. I lakh and in default of payment of fine further to undergo
two years and six months' rigorous imprisonment.
B
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, PW6 Shri Narain Das Lakhara,
Inspector, Customs Department, Jaisalmer, along with the Superintendent of
Customs and two other constables was proceeding on patrolling and checking C
duty towards Ramgarh. Near Brahamsar crossing, they started checking several
motor vehicles as it was suspected that there might be drug trafficking. In
truck no. RJC 1472, the appellant was found sitting with a cloth basket in his
hand. During the search, a polythene bag was found in the basket which
contained some black substance suspected to be opium. Appellant Khet Singh
and Kanhaiya Lal along with the cloth basket were brought to the Office of D
the Customs. In "the office of the Customs, the opium was seized, samples
:
were taken from it and were sealed. Appellant and Kanhaiya Lal ·were
questioned. The appellant stated that he had purchased the seized opium from
Kanhaiya Lal. The samples were sent for chemical examination and the report
from the Forensic Science Laboratory revealed that the sample was 'opium'. E
The appellant contended before the trial court that there was violation
of Section 50 of the NDPS Act as the search and seizure was not made in the
presence of a Gazetted Officer or a Magistrate and that the appellant was not
told in advance that he had a right to demand that the search:to ~e effected
shall be in the presence of a Magistrate or a Gazetted Officer. This plea was p
rejected on the ground that search and checking was being conducted of the
vehicles and it was during the course of this general search that the appellant
was found travelling with the opium and hence Section 50 of the NDPS Act

- '
is not applicable and that the same would apply in the case of a search on
the person of the appellant. The same plea was raised before the High Court
and was rightly rejected.

The learned Counsel, Mr. Doongar Singh who appeared on behalf of
G

the appellant raised a contention that though the search and seizure was
effected near Brahantsar crossing, no mahazar was prepared and no samples
were taken from the contraband article; the seizure memo was prepared in the
Office of the Customs Department and the santples were also taken at the H
.t
602 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Office of the Customs Department, and that this has caused serious prejudice .,._
I
to the appellant. According to the appellant's Counsel, the seizure memo >
(
should have been prepared at the place where the contraband article was
seized 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
B 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 t.~

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
c passengers.
-..
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
pro~e~ure and guidelines as to the manner in which search and seizure are
D to be effected. lfthereis 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 ~-

x
under the Statute is incarceration for a long period. 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 appellant is of vital importance.
t
E
Section 51 of the NDPS Act provides that the provisions of the Code \
of Criminal Procedure, 1973 shall apply in respect of warrants, arrests, searches
and seizure in so far as they are not inconsistent with the provisions of the

F
NDPS Act. Section 165 of the Code confers powers on the police to search
any place without search warrant. 'Place' has been defined in Section 2(p) of
the Code as one which includes house, building, tent, vehicle and vessel.
-
Section 165 of the Code empowers a police officer making an investigation
to conduct search without a warrant if he has reasonable grounds for believing
that anything necessary for the purpose of an investigation into any offence
may be found and that he is of the opinion that undue delay may frustrate the l..
~
G opject of the search. Further, Section 100 of the Code lays down the detailed
procedure and guidelines regarding the manner in which search is to be ,/ '-

conducted of a· closed place. f.

In the present case, the learned Counsel for the appellant contended .....
,..._
that the police officer did not prepare the seizure mahazar at the spot and r
H thereby violated the provisions of law. Therefore, it is argued that the evidence
KHET SINGH v. U.0.l. [K.G. BALAKRISHNAN, !.] 603

collected by the prosecution was not admissible. The learned Counsel further A
contended that the directions contained in the Standing Instructions issued by
the Narcotics Control Bureau were not complied with. Our attention was
drawn to clause 1.5 of the Standing Instruction No. 1/88 issued by the Narcotics
Control Bureau, New Delhi, which is to the following effect :-

"Place and time for drawal of sample B
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 panchnarna drawn on the spot." C
The learned Counsel f"or the appellant also pointed out to us Clause 3.8
of the Standing Order No. 2/88 issued by the Narcotics Control Bureau, New
Delhi, which reads as follows :-

Each seizing officer should deposit the drugs fully packed and sealed D
with his seal in the godown within 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)
E
{ii) Name (s) of accused

{iii) Reference of test memo

(iv) Description of drugs in the sealed packages/containers and other
goods, if any
F
(v) Drug-wise quantity in each package/container

(vi) Drug-wise number of packages/containers

(vii) Total number of all packages/containers

.. The learned Counsel for the appellant contended that these instructions
G
' 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. H
(
604 SUPREME COURT REPORTS [2002) 2 S.C.R.

A 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 purview of the NDPS Act, even though these instructions
do not have the force of law. They are intended to guide the officers and to
see that a fair procedure is adopted by the officer in-charge of the investigation.
It is true that when a contraband article is seized during investigation or
B search, a seizure mahazar should be prepared at the spot in accordance with
law. There may, however, be circumstances in which it would not have been
possible for the officer to prepare the mahazar at the spot, as it may be a
"f-
chance recovery and the officer may not have the facility to prepare a seizure
~
mahazar at the spot itself. If the seizure is effected at the place where there
c are no witnesses and there is no facility for weighing the contraband article
or other requisite facilities are lacking, the officer can prepare the seizure
mahazar at a later stage as and when the facilities are available, provided ~

there are justifiable and reasonable grounds to do so. In that event, where the I

seizure mahazar is prepared at a later stage, the officer should indicate his I
reasons as to why he had not prepared the mahazar at the spot of recovery.
D If there is any inordinate delay in preparing the seizure mahazar, that may
give an opportunity to tamper with the contraband article allegedly seized
from the accused. There may also be allegations that the article seized was ..
"X
by itself substituted and some other items were planted to falsely implicate
the accused. To avoid these suspicious circumstances and to have a fair
E procedure in respect of search and seizure, it is always desirable to prepare
the seizure mahazar at the spot itself from where the contraband articles were
taken into custody.

In the present case, though the article was seized from the accused
while he was travelling in a truck, no seizure mahazar was prepared at that y
F time. The accused persons were taken to the office of customs and the seizure
mahazar was prepared at the office of customs. The learned Single Judge of
the High Court held that no prejudice was caused to the appellant. The
learned Counsel for the appellant contended that NDPS Act being a special
Statute_ with provision for severe punishment on the accused found guilty of
the offences punishable thereunder, the procedure established by law for
G search and seizure is to be strictly complied with and any failure to comply
_.;
with such procedure is to be viewed seriously and any evidence collected
shall be made inadmissible under law.

Whether evidence collected by illegal search or seizure is admissible or
H not was considered by this Court in series of decisions and one of the earliest
KHET SINGH v. U.0.1. [K.G. BALAKRJSHNAN, J.] 605

decisions is the decision of the Constitution Bench in Pooran Mal v. The A
Director of Inspection (Investigation), New Delhi and Ors., 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 B
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."

In State of Punjab v. Baldev Singh, [ 1999] 6 SCC I 72, the Constitution C
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 pri.or
information, conducted in violation of the provisions of Section 50 of the D
Act, can by itself be used as evidence of unlawful possession of the illicit
article on the person from whom the contraband has been seized during the
illicit search. In paragraph 45 of the Judgment, Dr. A.S. Anand (Chief Justice)
held as under:-

" .... Prosecution cannot be permitted to take advantage of its own E
wrong. Conducting a fair trial for those who are accused of a criminal
offence is the cornerstone of our democratic society. A conviction
resulting from an unfair trial is contrary to our concept of justice.
Conducting a fair trial is both for the benefit of the society as well
as for an accused and cannot be abandoned. While considering the
aspect of fair trial, the nature of the evidence obtained and the nature F
of the safeguard violated are both relevant factors. Courts cannot
allow admission of evidence against an accused, where the court is
satisfied that the evidence had been obtained by a conduct of which
the prosecution ought not to take advantage particularly when that
conduct had caused prejudice to the accused. If after careful G
consideration of the material on record it is found by the court that
'· the admission of evidence collected in search conducted in violation
of Section 50 would render the trial unfair then that evidence must be
excluded .... "

In State ofH.P. v. Prithi Chand and Anr., [I996) 2 SCC 37, it was held
606 SUPREME COURT REPORTS [2002] 2 S.C.R.

A that it would thus be settled law that every deviation from the details of the
procedure prescribed for search does not necessarily lead to the conclusion
that search by the police renders the recovery of the articles pursuant to the
illegal search irrelevant evidence nor the discovery of the fact inadmissible
at the trial. Weight to be attached to such evidence depends on facts and
B circumstances in each case. The court is required to scan the evidence with
care and to act upon it when it is proved and the court would hold that the
evidence would be relied upon.

In Radha Kishan v. State of Uttar Pradesh, AIR (1963) SC 822 this
Court held that the evidence obtained by illegal search and seizure would not
C be rejected but requires to be examined carefully. In State of Maharashtra v.
Natwarlal Damodardas Soni, [1980] 4 SCC 669 it was held that even ifthe
search was illegal, it will not affect the validity of the seizure and further
investigation of the authorities or the validity of the trial which followed on
the complaint by the customs officials.

D 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 <;aused 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
E 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.

1n the present case, though the mahazar was not prepared at the spot
F 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
G interfere with the conviction and sentence entered against the appellant. The
appeal is dismissed accordingly.

v.s.s. Appeal dismissed.

; ...