A young Indian male, about 25 years old, is making his way through a bustling market place. He is carrying a long sling bag. A few meters ahead, a man wearing a white shirt and khakhi trousers confronts him. The young man panics and runs, but he is apprehended after a long foot chase by four narcotics control bureau officers. A large quantity of MDMA is allegedly recovered from the young man. Officers handcuff the accused and prepare the seizure memos. An investigation ensues.
Investigation of an offence is a challenging task as it must comply with conditions and technicalities laid down in statutes. There are certain special statutes which contain mandatory conditions to be satisfied during investigation. For example, in case of search and seizure based on a tip off, the Narcotic Drugs and Psychotropic Substances Act, 1985, mandates that once a person is arrested, he be informed of his right to be searched before a Gazeted Officer or Magistrate. If such person chooses to exercise his right, then his search would mandatorily be conducted in presence of such officer or magistrate (See Section 50 NDPS Act, 1985). But if he doesn’t choose to exercise this right, the arresting officer would search him.
Many a times, in practice, the arresting officer gives the accused the option to be searched in front of the magistrate or gazetted officer just as a matter of formality. In fact, he forcibly or manipulatively obtains the consent of the accused and searches the accused himself. Such consent of the accused is taken by the arresting officer to comply with procedural requirements of the statue which results in a tainted investigation and maybe challenged at trial. All this leads to the allegation that the arresting officer planted contraband on the accused.
However, the arresting officer counters the allegation by saying that the seizure was a ‘chance recovery’ and therefore, he wasn’t obliged to comply with strict mandatory provisions of the statute. The Supreme Court of India has held that a chance recovery is one where a police officer stumbles on narcotic drugs when he makes a search (See Mohinder Kumar v. State [(1998) 8 SCC 655]). In case of a chance recovery, the conditions specified in Section 50 NDPS Act, 1985 do not apply.
Here, the arresting officer is very smart, he doesn’t commit even a small clerical or typographical error in preparing the seizure memo and other related documents. Now, it is an arduous task before the defense counsel to challenge a seemingly flawless investigation which in fact violates many provisions of law. It may seem that a chance recovery is difficult to challenge since many procedural grounds of challenge are no longer available. However, a defense counsel can still effectively challenge a chance recovery by questioning the circumstances of the recovery.
In the above case, the arrest took place outside the jurisdiction of the arresting officer, therefore, the defense counsel should challenge the circumstance of the officer being outside his jurisdiction. The defense counsel should also contest the fact that a team of officers was outside their jurisdiction at the same time the accused was apprehended. How is this possible? It is more likely that such an arrest is based on a tip-off. Further, in case of a chance recovery, how would unprepared officers have their personal items such as a laathi, handcuffs, seizure memo etc. This simply points to a manipulated investigation to frame the accused.
The defense counsel may even file an application seeking the mobile location of such arresting officers during the time of the arrest. In case their mobile location shows them present at the scene of arrest long before the arrest, this would also indicate that they were present there based on a tip-off. Hence, there was no chance recovery. Though difficult to contest, a sharp defense counsel can still challenge the circumstances of chance recovery. Any dent would be read in favor of the accused and point to a manipulated investigation. Finally, it would ensure a fair trial.
Ansh Singh Luthra is a practicing lawyer at the High Court of Delhi. He graduated from NLIU, Bhopal and pursued LLM from the University of Cambridge on a full scholarship. He can be contacted at firstname.lastname@example.org.
Disclaimer: The views or opinions expressed are solely of the author.