Roy
V. D. Vs. State of Kerala
[2000] INSC 556 (10
November 2000)
S.N.Phukan,
S.S.M.Quadri
L.I.T.J
Syed Shah Mohammed Quadri, J.
Leave
to appeal is granted. This appeal is directed against the order dated June 4, 1998 passed by the High Court of Kerala
at Ernakulam dismissing Crl.M.C.No.2417 of 1996 which was filed by the
appellant praying the Court to quash proceedings in Session Case No.78 of 1993
on the file of Additional Sessions Judge, Thodupuzha. The appellant was
searched by the Excise Inspector, Devikulam. On the allegation of recovering
Ganja from his possession the appellant was taken into custody on November 21, 1990.
Under
Section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short, the NDPS Act), a charge was laid against him by the Excise Inspector on
February 20, 1991, whereas the statutory notification under which he became
competent so to do, was issued by the Government of Kerala in
G.O.(MS)No.168/92/TD, authorising officers of and above the rank of Excise
Inspectors of the Excise Department to file complaints under Section 36A(1)(d)
of the NDPS Act, on October 20, 1992. On the ground that the Excise Inspector
was not authorised to file the charge sheet against the appellant and,
therefore, the complaint was not maintainable, the appellant was discharged
under Section 227 of Code of Criminal Procedure by the learned Additional
Sessions Judge, Thodupuzha, on February 22, 1993.
The said Excise Inspector, Devikulam, however, filed a fresh charge sheet
against the appellant in Crime No.56 of 1990 for the very same offence on May 17, 1993. The case was committed to the
court of the Additional Sessions Judge, Thodupuzha, and was numbered as Session
Case No.78 of 1993. The appellant filed Crl.M.C. No.2417 of 1996 before the
High Court of Kerala praying that the entire proceedings in Session Case No.78
of 1993 on the file of Additional Sessions Judge, Thodupuzha be quashed. By the
order under challenge the High Court dismissed the petition. Hence this appeal.
Mr.K.Sukumaran, the learned senior counsel appearing for the appellant,
contended that on the basis of recovery of illicit material on search and
seizure made by an Excise Inspector, not authorised under Sections 41(2) or 42(1)
of the NDPS Act, no charge could have been laid against the appellant so the
High Court ought to have quashed the impugned proceedings. Mr.Mukul Rohtagi,
the learned Additional Solicitor General appearing for the State/respondent,
argued that the appellant could as well raise this plea at his trial before the
Sessions Court and when the High Court declined to quash the proceedings it
would not be appropriate for this Court to quash the proceedings. On these
contentions, the question that arises for consideration is : whether the
impugned proceedings in Session Case No.78 of 1993 are liable to be quashed
under Section 482 of the Criminal Procedure Code. The life and liberty of an
individual is so sacrosanct that it cannot be allowed to be interfered with
except under the authority of law. It is a principle which has been recognised
and applied in all civilised countries. In our Constitution, Article 21
guarantees protection of life and personal liberty not only to citizens of India but also to aliens.
The
ground on which the proceedings are sought to be quashed is that search,
seizure and the alleged recovery of Ganja are all in violation of Section 42(1)
being by an Excise Inspector who was not empowered under Sections 41(2) of the
said Act. A reference to Sections 41 and 42 of the NDPS will be apposite. They
read as under: 41. Power to issue warrant and authorisation.- (1) A
Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of
the second class specially empowered by the State Government in this behalf,
may issue a warrant for the arrest of any person whom he has reason to believe
to have committed any offence punishable under chapter IV, or for the search,
whether by day or by night, of any building, conveyance or place in which he
has reason to believe any narcotic drug or psychotropic substance in respect of
which an offence punishable under Chapter IV has been committed or any document
or other article which may furnish evidence of the commission of such offence
is kept or concealed.
(2)
Any such officer of gazetted rank of the departments of central excise,
narcotics, customs, revenue intelligence of any other department of the Central
Government or of the Border Security Force as is empowered in this behalf by
general or special order by the Central Government, or any such officer of the
revenue, drugs control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special order of the
State Government, if he has reason to believe from personal knowledge or
information given by any person and taken in writing that any person has
committed an offence punishable under Chapter IV or that any narcotic drug, or
psychotropic substance in respect of which any offence punishable under Chapter
IV has been committed or any document or other article which may furnish
evidence of the commission of such offence has been kept or concealed in any
building, conveyance or place, may authorise any officer subordinate to him but
superior in rank to a peon, sepoy, or a constable, to arrest such a person or
search a building, conveyance or place whether by day or by night or himself
arrest a person or search a building, conveyance or place.
(3)
The Officer to whom a warrant under sub- section (1) is addressed and the
officer who authorised the arrest or search or the officer who is so authorised
under sub-section (2) shall have all the powers of an officer acting under
Section 42.
42.
Power of entry, search, seizure and arrest without warrant or authorisation.-
(1) Any such officer (being an officer superior in rank to a peon, sepoy or
constable) of the departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central Government or of the Border
Security Force as is empowered in this behalf by general or special order by
the Central Government, or any such officer (being an officer superior in rank
to a peon, sepoy or constable) of the revenue, drugs control, excise, police or
any other department of a State Government as is empowered in this behalf by
general or special order of the State Government, if he has reason to believe
from personal knowledge or information given by any person and taken down in
writing, that any narcotic drug, or psychotropic substance, in respect of which
an offence punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such offence is
kept or concealed in any building, conveyance or enclosed place, may, between
sunrise and sunset,- (a) enter into and search any such building, conveyance or
place;
(b) in
case of resistance, break open any door and remove any obstacle to such entry;
(c)
seize such drug or substance and all materials used in the manufacture thereof
and any other article and any animal or conveyance which he has reason to
believe to be liable to confiscation under this Act and any document or other
article which he has reason to believe may furnish evidence of the commission
of any offence punishable under Chapter IV relating to such drug or substance;
and (d) detain and search, and if he thinks proper, arrest any person whom he
has reason to believe to have committed any offence punishable under Chapter IV
relating to such drug or substance:
Provided
that if such officer has reason to believe that a search warrant or authorisation
cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may enter and search
such building, conveyance or enclosed place at any time between sun set and sun
rise after recording the grounds of his belief.
(2)
Where an officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall forthwith
send a copy thereof to his immediate official superior.
Sub-section
(1) of Section 41 of the NDPS Act enables a Metropolitan Magistrate or a
Magistrate of the first class or any Magistrate of the second class who is
especially empowered by the State Government in this behalf to issue a warrant
for the arrest of any person whom he has reason to believe to have committed
any offence punishable under chapter IV of the said Act. Such a warrant may
also be issued for the search of any building, conveyance or place in which he
has reason to believe that any narcotic drug or psychotropic substance in
respect of which an offence punishable under Chapter IV has been committed or
any document or other article which may furnish evidence of the commission of such
offence is kept or concealed. Arrest or search under a warrant issued in this
provision can be made at any time whether by day or by night. Sub-section (2)
of Section 41 of the NDPS Act entitles any officer of gazetted rank of the
departments of central excise, narcotics, customs, revenue intelligence or any
other department of the Central Government or of the Border Security Force who
has been empowered in that behalf by general or special order of the Central
Government, or any officer of the revenue, drugs control, excise, police or any
other department of a State Government as is empowered in that behalf by
general or special order of the State Government, to arrest a person or search
a building, conveyance or a place or to authorise any officer subordinate to
him but superior in rank to a peon, sepoy or a constable, to arrest such a
person or search a building, conveyance or place whether by day or by night.
Sub-section
(3) of Section 41 of the NDPS Act says that the Officer to whom a warrant under
sub-section (1) is addressed and the officer who authorised the arrest or
search and the officer who is so authorised under sub- section (2) shall have
all the powers of an officer acting under Section 42.
Sub-section
(1) of Section 42 of the NDPS enumerates the powers of any such officer as is
specified therein and who is duly empowered by the Central Government or the
State Government, as the case may be. If he has reason to believe either from
personal knowledge or on information given by any person and taken down in
writing, that (a) any narcotic drug, or psychotropic substance, in respect of
which an offence punishable under Chapter IV has been committed; or (b) any
document or other article which may furnish evidence of the commission of such
offence is kept or concealed in any building, conveyance or enclosed place, he
may exercise the following powers, between sunrise and sunset. They are:
(i) enter
into any building and search any such building, conveyance or place and if
faced with any resistance, break open any door and remove any such obstacle to
such entry;
(ii)
seize: (a) such drug or substance and other materials any other article or any
animal or conveyance which he has reason to believe to be liable to
confiscation under the Act and (b) any document or other article which he has
reason to believe may furnish evidence of the commission of any offence
relating to such drug or substance; and (iii) detain and search and if he
thinks proper, arrest any person whom he has reason to believe to have committed
any offence punishable under Chapter IV relating to such drug or substance. The
proviso to sub- section (1) says that an empowered officer may also enter into
any building, conveyance or enclosed place at any time between sunset and
sunrise if he has reason to believe that a search warrant or authorisation
cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender but in such a case before so
proceeding he is enjoined to record the grounds of his belief. Sub-section (2)
of Section 42 contains a procedural directive to the officer who takes down any
information in writing under sub-section (1) or records grounds for his belief
under the proviso thereto to send forthwith a copy thereof to his immediate
official superior. It is thus seen that for exercising powers enumerated under
sub-section (1) of Section 42 at any time whether by day or by night a warrant
of arrest or search issued by a Metropolitan Magistrate or a Magistrate of the
first class or any Magistrate of the second class who has been specially
empowered by the State Government in that behalf or an authorisation under
sub-section (2) of Section 41 by an empowered officer is necessary. Without
such a warrant or an authorisation, an empowered officer can exercise those
powers only between sunrise and sunset. However, the proviso permits such an
empowered or authorised officer to exercise the said powers at any time between
sunset and sunrise if he has reason to believe that such a search warrant or authorisation
cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender and he records the grounds
of his belief. Now, it is plain that 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. It follows that 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. To the same effect is the Singh [1994 (3) SCC 299]. In para
13 Jayachandra Reddy, J.
speaking
for the Court observed thus : Therefore, if an arrest or search contemplated
under Sections 41 and 42 is made under a warrant issued by any other Magistrate
or is made by any officer not empowered or authorised, it would per se be
illegal and would affect the prosecution case and consequently vitiate the
trial.
It is
well settled that the power under Section 482 of the Cr.P.C. has to be
exercised by the High Court, inter alia, to prevent the abuse of the process of
any court or otherwise to secure the ends of justice. Where criminal proceedings
are initiated based on illicit material collected on search and arrest which
are per se illegal and vitiate not only a conviction and sentence based on such
material but also the trial itself, the proceedings cannot be allowed to go on
as it cannot but amount to abuse of the process of the court; in such a case
not quashing the proceedings would perpetuate abuse of the process of the court
resulting in great hardship and injustice to the accused. In our opinion,
exercise of power under Section 482 of the Cr.P.C. to quash proceedings in a
case like the one on hand, would indeed secure the ends of justice. The learned
Additional Solicitor General, however, relying upon Singh [1999 (6) SCC 172],
contends that a search and seizure in violation of Sections 41 & 42 of the
NDPS Act does not vitiate the trial but would render the recovery of illicit
article suspect and would only vitiate the conviction and sentence of the
accused if the conviction has been recorded solely on the basis of such illicit
article, so the High Court was right in not quashing the proceedings. We are afraid,
we cannot accede to the contention of the learned Additional Solicitor General.
The conclusion, referred to above, may be extracted here : That a search made
by an empowered officer, on prior information, without informing the person of
his right that if he so requires, he shall be taken before a gazetted officer
or a Magistrate for search and in case he so opts, failure to conduct his
search before a gazetted officer or a Magistrate, may not vitiate the trial but
would render the recovery of the illicit article suspect and vitiate the
conviction and sentence of an accused, where the conviction has been recorded
only on the basis of the possession of the illicit article, recovered from his
person, during a search conducted in violation of the provisions of Section 50
of the Act.
It may
be noticed that that conclusion was reached by the Constitution Bench in the
context of non-compliance of Section 50 of the NDPS Act. While emphasising that
it is imperative on the officer who is making search of a person to inform him
of his right under sub-section (1) of Section 50 of the NDPS Act, it was held
that the recovery of the illicit article in violation of Section 50 of the NDPS
Act would render the recovery of illicit article suspect and use of such
material would vitiate the conviction and sentence of an accused. It is
manifest that the recovery of illicit article in that case was by a competent
officer but was in violation of Section 50 of the NDPS Act. In the instant
case, however, the search and recovery were by an officer who was not empowered
so to do. Further in Balbir Singhs case (supra) this Court took the view that
arrest and search in violation of Sections 41 and 42 of the NDPS Act being per
se illegal would vitiate the trial. Therefore, the said conclusion cannot be
called in aid to support the order under challenge. If the proceedings in the
instant case are not quashed, the illegality will be perpetuated resulting in
grave hardship to the appellant by making him to undergo the ordeal of trial
which is vitiated by the illegality and which cannot result in conviction and
sentence. It is, in our view, a fit case to exercise power under Section 482 of
Cr.P.C. to quash the impugned proceedings. For the afore-mentioned reasons, we
set aside the order of the High Court, allow Crl.M.C.No.2417 of 1996 and quash
the proceedings in Session Case No.78 of 1993 on the file of Additional
Sessions Judge, Thodupuzha. The appeal is thus allowed.
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