Back
SUPREME COURT OF INDIA
S. R. PANDIAN AND K. JAYACHANDRA REDDY, JJ.
State of Punjab, Petitioner
Versus
Balbir Singh, Respondent.
Spl. Leave Petn. (Cri) Nos. 1734-35, 2230-31 etc. etc. of 1990, 770, 407 and 300 etc. etc. of 1991 and Cri. M. P. Nos. 4357 of 1989; 8722, 8670 etc. of 1990 and 217, 220, 311 etc. of 1991 and Cri. Appeal Nos. 334 of 1990; 348 of 1991 and 212 of 1993),
D/-1-3-1994.
Held: lf a police officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage Section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N.D.P.S. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with/he other provisions of the N.D.P.S. Act.
2A) Under Section 41 (1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for a Magistrate who is not empowered issues search, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorised officers as enumerated in Sections 41 (2) and 42(1) can act under the provisions of the N.D.P.S. Act. If such arrest or search is made under the provisions of the N.D.P.S. Act by any one other than such officers, the same would be illegal.
2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.
2C) Under Section 4 2(1) the cm powered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences arc concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails 10 strictly comply with the provisions of Sections 100 and 165 Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
4B) If an empowered officer or an authorised officer under Section 41 (2) of the Act carries out a search, he would be doing so under the provisions of Cr. P.C. namely Sections 100 and 165 Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
5) On prior information, the empowered officer or authorised officer while acting under, Sections 41 (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced 7. before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merit of the case. (Emphasis supplied: Editor) (Para 23)
(ii) Narcotic Drugs and Psychotropic Sub stances Act, 1985 - Sections 41, 42, 43 & 51 Criminal Procedure Code, 1973 - Sections 4, 100 and 165 - Arrest and search u/ss. 41, 42 and 43 - Provisions of Sections 100 and 165 of the Code would be applicable -However, arrest or search to be carried out only by competent and empowered Magistrates or officers mentioned in the Act. (Paras 11 & 12)
Key Points: - The NDPS Act provides that Cr.P.C. provisions apply to warrants, arrests, searches, and seizures under the Act, to the extent not inconsistent with the NDPS Act. (!) (!) (!) - If a police officer conducts a search/arrest under Cr.P.C. during normal investigation without prior information as contemplated under NDPS Act, Section 50 may not be triggered; empowered officer should then proceed under NDPS provisions for further steps. (!) (!) - Sections 41 and 42 require empowered magistrates/officers to have reason to believe and, in certain cases, to record grounds of belief; failure to record grounds under proviso to 42(1) or to inform the arrested person under Section 50 can affect the prosecution case and may vitiate the trial. (!) (!) (!) (!) - Section 50 mandates informing the person searched of the right to be searched in the presence of a gazetted officer or magistrate if he requires; this is considered mandatory and failure to inform can affect the prosecution case. (!) (!) (!) (!) - Non-compliance with Sections 100 and 165 Cr.P.C. during searches under NDPS does not automatically render the trial void; courts assess prejudice and weight of evidence case-by-case. (!) (!) (!) (!) - Provisions 52 and 57 are procedural; non-compliance may affect evidentiary weight but not automatically invalidate the trial, unless prejudice is shown. (!) (!) (!) - The judgment delineates that violations of NDPS/Cr.P.C. provisions are evaluated on a case-by-case basis with emphasis on safeguards to prevent misuse and ensure fairness. (!) (!) (!)
Judgment
K. JAYACHANDRA REDDY, J.:- In almost all the above cases the State of Punjab is the petitioner. The common question that arises for consideration is whether any arrest and search of a person or search of a place without conforming to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short), become illegal and consequently vitiate the conviction. The trial court in these cases acquitted the accused on the ground that the arrest, search and seizure were in violation of some of the relevant and mandatory provisions of the NDPS Act. The High Court declined to grant leave to appeal against the said order of acquittal. Questioning the same the State of Punjab has filed these special leave petitions and appeals. In a few cases, the convicted accused also have questioned their convictions on the ground that arrest and trial were illegal. Since a common question arises in all these matters, they are being disposed of by a common judgment.
2. The principal contention of Mr. Suri, learned counsel appearing for the State of Punjab is that in all these cases, the police officers effected arrest, search and seizure on reasonable suspicion that a cognizable offence has been committed and not on any prior information that any offence punishable under NDPS Act has been committed and therefore the question of complying with some of the provisions of the NDPS Act in this regard at the time of the said arrest, search and seizure would not arise and as long as such arrest, search and seizure are substantially in accordance with the provisions of Code of Criminal Procedure, such arrest, search and seizure cannot be declared as illegal. The further submission is that even if such arrest, search and seizure are not in strict conformity with the provision of Criminal Procedure, at that stage the same may at the most be irregular and the courts have to consider the prosecution case and appreciate the relevant evidence from that background and should only see whether any prejudice is caused to the accused but cannot throw out the whole prosecution case as such. Several learned counsel appearing for the respondents-accused on the other hand contended that since deterrent punishments are prescribed under the NDPS Act, the Legislature has taken care to incorporate several provisions in Chapter V of the NDPS Act governing the arrest, search and seizure to afford safeguards so that innocent persons are not harassed and these provisions are mandatory in nature and non-compliance of the same vitiates the trial.
3. To appreciate the questions involved, it may not be necessary to extract the said provisions in the NDPS Act extensively. Suffice if we give a gist of the said provisions since we are mainly concerned with the comphance of the provisions of Code of Criminal Procedure in respect of arrest, search and seizure subject to the limitations under NDPS Act.
4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances to provide for the for future property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected there with. Sections 1 to 3 in Chapter 1 deal. with definitions and connected matters. The provisions in Chapter It deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with vari
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
