On 27th May, a bench of Delhi High Court consisting of Justice Yogesh Khanna, in the case of Matrix Cellular (International) Services Limited v. State (Nct of Delhi) retaliated that the evidence obtained in a case, even through an “illegal” search or seizure will not be excluded or discarded only on the ground that it was obtained through illegal or irregular means. It has been consistently held unless prejudice and miscarriage of justice is pleaded and shown, a mere irregularity shall not result in setting aside of proceedings.
Facts of the case:
A writ petition was filed by the petitioner for direction to the SHO of police (respondent) to immediately release the products/stock (32 boxes of Oxygen Concentrators of 09 and 05 liters capacity) seized by the respondent from the petitioner’s Collection Centre at Lodhi Colony and the petitioner’s office premises at Mehrauli. It was also prayed to restrain the petitioner from seizing any further products of the petitioner pursuant to the FIR, besides other reliefs or even otherwise.
Contention of the petitioner:
- The arguments of the learned senior counsel for the petitioner is that despite the fact that an FIR was registered on 05.05.2021, the entire seized material was sent to the Deputy Commissioner and not to a local Magistrate hence they have no remedy under Section 451 or 457 Cr P C to move an appropriate application before learned Magistrate and since the seizure is illegal, the remedy is only to file a Writ under Article 226 of the Constitution.
- The learned senior counsel for the petitioner refers to Section 102 , 451, and 457 Cr P C to say as none of the seized properties/articles were ever produced before learned Magistrate having the jurisdiction over the area, hence no application under Section 457 CrPC could be made.
- It was further contented that the reference is made to various invoices filed on record stating inter alia they have got these equipments imported for sale and the market prices are controlled by demand and supply and as there is no order of the Government controlling its prices, hence no case is made out against the petitioner.
- The petitioner further contented that if the State had regulated the import and capped the price of concentrators only then these could have been seized, hence, without any order under Essential Commodities Act or without any regulation under The Epidemic Diseases Act, the act of the State is wholly illegal and hence the articles need be returned.
Contention of Respondent:
- The Respondent pointed out that the seizure had been made under Section 102 Cr P C. It gives the power to any police officer to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
- Keeping the above mentioned in mind the respondent contended that the seized items were found under suspicious circumstances where individuals were in alleged violation of the Covid-19 lockdown measures imposed at that time, and accordingly, police was authorised to seize the oxygen concentrators lying at the spot. The registration of the FIR was not mandatory for search and seizure under Section 102 Cr P C.
- It was also argued that a police officer, if he suspects of a crime, is empowered under Cr PC to investigate upon information received or otherwise, to investigate under Section 156 of the Cr PC, and since the investigation includes collection of evidence hence, it authorizes the Investigating Officer to seize any property for the purpose of the collection of evidence
Judgement and observation of court:
The Delhi High Court in its observation stated that:
- Prima facie the act of the petitioner is in violation of an Office Memorandum, Ministry of Chemicals and Fertilizers, Government of India, of dated 29.06.2020 (supra) which had directed the petitioners and others like him, selling oxygen concentrators, to not increase prices of oxygen concentrators by more than 10% of the maximum retail price in a year of the Drugs Pricing Control Order, 2013.
- The Court has also reiterated that the evidence obtained even through an “illegal” search or seizure will not be excluded or discarded only on the ground that it was obtained through illegal or irregular means.
It has been consistently held unless prejudice and miscarriage of justice is pleaded and shown; a mere irregularity in investigation shall not result in setting aside of proceedings, or in relevant evidence being discarded.
The court further held that the investigation being at initial stage, the reliefs sought for in this petition cannot be granted by this Court except the concentrators so seized be put an identification mark(s) and its coloured photographs be kept for future reference, by the respondent.
The petition was thus dismissed.
[Read Judgment
SOURCE . latestlaws.com
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