2002 Supreme(SC) 548

2002(3) Supreme 547
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
Umesh C. Banerjee & Y.K. Sabharwal, JJ.
Union of India & Ors. -Appellants
versus
L.D. Balam Singh -Respondent
Criminal Appeal No. 1368 of 1999
Decided on 24-4-2002
Counsel for the Parties :
For the Appellants : V.C. Mahajan, Sr. Advocate, Shreekant N. Terdol and K.K. Rai, Advocates.
For the Respondent : Ms. Indu Malhotra, Advocate.

IMPORTANT POINT
Article 33 of Constitution empowers the Parliament to restrict or abridge within permissible extent, the rights conferred under Part III of the Constitution in so far as Armed Personnel are concerned. Thus when an army person is tried under Section 69 of Army Act, 1950 for an offence punishable under Section 18 of NDPS Act, 1985, if there is non-compliance of mandatory procedural safeguards under Sections 41 and 42 of NDPS Act the entire proceedings stands vitiated.

Headnote:(i) Constitution of India-Art. 33-Power of Parliament to modify Fundamental Rights under Part III in their application to Armed forces-Extent of restriction (See Paras 1 to 3).

       (ii) Army Act, 1950-Sections 69 and 109-Power to convene a General Court Martial to try civil offences committed by armed forces-Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 18, 41, 42 and 50-Appellant an army person, tried for an offence under Section 18 NDPS Act before a General Court Martial for recovery of 4.900 kgs. opium from his residence-Whether Section 50 of NDPS Act concerning conditions under which search of persons shall be conducted applicable? (No).

       Held : As regards non-applicability of Section 50 by reason of the factum of the same being made applicable to the person and not the place, we cannot but record our concurrence therewith. Section 50 sub-section (1) by reason of the language used therein, does not and cannot have any manner of application in the facts presently under consideration. (Para 15)

       (iii) Army Act, 1950-Sections 69 and 109-NDPS Act, 1985-Sections 18 and 42-Trial by General Court-Martial for offence under Section 18, NDPS Act-Conviction and sentence of respondent-Writ petition-High Court quashed as substantive and procedural safeguards under Section 42, NDPS Act not followed which were mandatory viz. no search warrants were issued and officers conducting the search were not duly authorised under the Act-Appeal to Supreme Court-Contention that by reason of the fact that petitioners being a "person" belonging to Armed Forces question of usual formalities as regards procedural safeguards under NDPS Act would not arise and as such infraction of Section 42 of NDPS Act cannot be said to be of any consequence-Whether correct? (No)-Appeal dismissed-High Court s judgment upheld.

       Held : The NDPS Act admittedly contains certain safeguards and the law reports are replete with case laws pertaining to these safeguards. Dilution of the safeguards as prescribed in the statute has strongly been criticised and negated and the same were ascribed to be strictly mandatory in nature. The issue thus : whether by reason of the respondent being a member of the Armed Forces would stand denuded of such a safeguard in the event the General Court Martial takes note of an offence under a specific statute. Article 33 of the Constitution though conferred a power but has not been taken recourse to put a bar or restraint as regards the non-availability of the statutory safeguards in terms therewith. (Para 10)

       Turning attention on to the procedural aspect, be it noticed that Section 18 is an offence which cannot but be ascribed to be civil in nature in terms of the provisions of Army Act - if Section 18 is to be taken recourse to then and in that event the provisions of the statute come into play in its en

       tirety rather than piecemeal. The charge levelled against the respondent is not one of misdeeds or wrongful conduct in terms of the provisions of the Army Act but under the NDPS Act - In the event, we clarify, a particular statute is taken recourse to, question of trial under another statute without taking recourse to the statutory safeguards would be void and the entire trial would stand vitiated unless, of course, there are existing specific provisions therefor in the particular statute. Needless to record that there were two other civilian accused who were tried by the Court at Patiala but were acquitted of the offence for non-compliance of the mandatory requirements of the NDPS Act. Once the petitioner was put on trial for an offence under the NDPS Act, the General Court Martial and the Army authorities cannot reasonably be heard to state that though the petitioner would be tried for an offence under Section 18 of the NDPS Act, yet the procedural safeguards as contained in the statutory provision would not be applicable to him being a member of the Armed Forces. The Act applies in its entirety irrespective of the jurisdiction of the General Court Martial or other Courts and since the Army authorities did not take into consideration the procedural safeguards as is embodied under the Statute, the question of offering any credence to the submissions of Union of India in support of the appeal does not and cannot arise. There is no material on record to show that the authorities who conducted the search and seizure at the house of the respondent herein has in fact done so in due compliance with Section 42 of the statute which admittedly stand fatal for the prosecution as noticed above-as a matter of fact, two of the civilians stand acquitted therefor. (Para 16)

       Held finally : Having considered the matter in the perspective as above, we do not find any infraction of any law in the judgment of the High Court, neither the judgment can be faulted in any other way. This appeal, therefore, fails and is thus dismissed. (Para 18)