Accidental Recovery of Narcotic Drug by Income Tax Officers would not constitute “Seizure” under NDPS Act: Bombay HC grants relief to Top Birla Executive [Read Judgment]

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The Bombay High Court on Friday refused to grant relief to Varthan Pathak, President of Corporate Affairs, Yash Birla Group and held that stumbling of officer upon Contraband like Cocaine during Income Tax Search doesn’t amount to seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The applicant, Vardhan Pathak is arraigned for the offenses punishable under section 8(c) read with section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for having been found in possession of and also consumed a narcotic drug along with two co-accused.

On January 7, 2014, the officers of the Income Tax Department conducted a search and seizure operation in Room No. 667 of the Taj Palace Hotel, Mumbai in connection with the affairs of the group companies controlled by Mr. Yash Birla. The applicant is the President of the corporate affairs of the said group. During the course of the operation, the applicant was found in the room along with co-accused.

In the course of the search and seizure operation, one of the co-accused namely Dharma Rathod was found in possession of eight small self-knotted transparent polythene pouches containing white powdery substance kept in a white paper envelope. The officers of the Income Tax Department collected the said article and kept it in a safe, which was available in the said room, in the presence of the public witnesses, who were already summoned for the said search and seizure operation. The Superior Officers of the Income Tax Department thereafter informed the Zonal Director, Narcotics Control Bureau, Mumbai (‘NCB’) on  January 10, 2014 about the said occurrence.

The said substance was checked with the assistance of a field testing kit. It transpired that the said substance was cocaine weighing about 4.5 grams. The officers of NCB seized the said contraband material in adherence to the procedure.

The applicant filed an application under Section 227 of the Code of Criminal Procedure, 1973 for discharge.

The significant issue raised in this case was whether the act of the Income Tax Officers of collecting and keeping the contraband in safe custody on  January 7 2014,  constitutes a seizure.

The single-judge bench of  Justice N.J. Jamadar noted, “If the search and seizure operation is carried out by the officers who are neither empowered nor authorized with the purpose or under a belief that the suspect possesses the contraband substance, then the provisions of the Act would apply with full force and the prosecution would not be permitted to rely upon such search and the trial on the strength of such seizure would stand vitiated. However, when the officers stumbled upon the contraband substance in possession of a person is totally different proceedings, like the income tax search at hand, different considerations ought to come into play lest the ground of non-compliance of the provisions contained in sections 41 and 42 of the NDPS Act, even in case of an accidental recovery of contraband substance, would cause serious prejudice to the cause of administration of criminal justice.”

“I am not persuaded to accede to the submission on behalf of the applicant that the very act of the Income Tax Officers taking over the substance from the possession of the co-accused Dharmu Rathod amounted to “seizure”,” the single Judge bench remarked.

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