[NDPS Act] Seizure Mahazar Sent To Court Becomes A Public Document, Accused Entitled To Certified Copy: Kerala High Court

Justice P.V.Kunhikrishnan observed thus:

“I am of the considered opinion that, once the seizure mahazar is prepared and sent to the court, it is a public document. There is no bar in issuing a certified copy of the seizure mahazar to an accused especially because the same is necessary for him to mould his case at the stage of filing the bail application also.”

The petitioner was the 4^th accused in a case and was alleged of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) Act. The allegation was that he possesses narcotic substances in commercial quantity. The petitioner filed an application for a certified copy of the seizure mahazar before the Additional Sessions Court-I, Thiruvananthapuram which was dismissed. Aggrieved by the dismissal, he has approached the High Court.

The counsel for the petitioner submitted that the petitioner could only get bail if he proved not guilty since there were serious allegations of possession of narcotic substances. It was submitted that the petitioner required a copy of the seizure mahazar to understand his case. It was also argued that seizure mahazar was a public document under Section 74 (1)(iii) of Evidence Act and a copy cannot be denied.

The Court noted that FIR and seizure mahazar prepared by the police or other officers were contemporaneous records which were forwarded to the Magistrate. As per Section 102 CrPC, police officers have the power to seize property and a report of such seizure will be sent to the Magistrate.

Section 207 deals with the supply of police report and other documents to the accused and it states that an accused was entitled to get a copy of the FIR after issuance of process. Relying upon Youth Bar Association of India v. Union of India and Others (2022), the Court noted that the accused was entitled to get a copy of the FIR at an earlier stage than that was mentioned under Section 207 CrPC.

“As per Section 207(ii), the first information report recorded under Section 154 Cr.P.C is to be supplied to the accused after issue of process at the Section 207 Cr.P.C stage. But the Apex Court in Youth Bar Association of India's case (supra) observed that, an accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.”

The Court relied upon Harendra Rai v. State of Bihar (2023) to state that FIR was a public document under Section 74 of the Evidence Act and the accused was entitled for copy. Relying upon Saritha S. Nair v. Union of India and Another (2022), the Court noted that the right to obtain a certified copy of a public document presupposes the right to inspect it. The court also referred to the rules mentioned under Criminal Rules of Practice Kerala, 1982 to state that applications can be submitted for obtaining certified copies of proceedings or documents, except those which were confidential or not strictly judicial documents.

On the above analysis, the Court held that seizure mahazar once sent to Court, becomes a public document and the accused was entitled to its copy.

Therefore, the seizure mahazar which is a signed document can be given to the accused on usual terms after payment of necessary fee. The Sessions Court dismissed the application mainly for the reason that, for filing bail application, seizure mahazar is not necessary. Such a stand can not be accepted. As far as an accused is concerned, he has to mould his case at the stage of bail application itself for which the F.I.R and seizure mahazar may be necessary especially when the case alleged is very serious.”

The Court thus set aside the order of the Additional Sessions Court-I, Thiruvananthapuram dismissing the application for seizure mahazar. It further allowed the application and directed for issuance of the certified copy of seizure mahazar to the petitioner.

Counsel for the petitioner: Advocates M.J.Santhosh, Renjith B.Marar, Antony Paul, Lakshmi.N.Kaimal, Abhijith Sreekumar, Arun Poomulli and Anand Remesh

Counsel for the respondents: Public Prosecutor Sreeja V

Citation: 2023 LiveLaw (Ker) 630

Case title: Shibu J v State of Kerala

Case number: Crl.MC No. 8455 of 2023

Click here to download/read Order