Very Important Points
1. 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.
2. 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.

Judgment

Syed Shah Mohammed Quadri, J.—Leave to appeal is granted.

2. 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.

3. 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. (M.S.) 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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