Case Law Details
Anant Vardhan Pathak Vs Union of India (Bombay High Court)
The issue under consideration is whether the act of the Income Tax Officers of collecting and keeping the Narcotic Drug found during search in safe custody constitutes a seizure?
In the present case, the officers of the Income Tax Department conducted a search and seizure operation in Room 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 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’) 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.
No officer other than an empowered officer can resort to section 41(2) or exercise powers under section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of section 36A of the NDPS Act. Consequently, any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.
High Court states that there is material to indicate that the Income Tax search was underway from 7th January 2014 to 10th January 2014. At this juncture, it would be rather hazardous to draw an inference that the said income tax search was a subterfuge. The statements of the Income Tax Officers find requisite support in the statements of the applicant recorded under section 67 of the NDPS Act. The action of the officers of the Income Tax department in apprising the said matter of finding the suspicious substance during the course of Income Tax search in the given circumstances, cannot be said to be inconceivable and unjustifiable. The response of the income tax officers in taking over and keeping the suspicious substance, in the circumstances, cannot be clothed with the character of ‘seizure’, in the juristic sense. On the one hand, the requisite intent to carry on search to find out contraband substance could not have been attributed to the officers of the Income Tax department. On the other hand, the officers also cannot be attributed with the competence and authority to draw a definitive inference, at that stage, that the substance found was indeed contraband. The justifiability of the communication dated 10th January 2014 is required to be considered through this prism. Thus, HC 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”.
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