Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 327

SUPREME COURT OF INDIA
ANIRUDDHA BOSE, AUGUSTINE GEORGE MASIH,
SMT. Najmunisha - Sole Appellant
In Criminal Appeal No. 2319 of 2009
2. Abdul Hamid Chandmiya Alias Ladoo Bapu – Sole Appellant
In Criminal Appeal No. 2320 of 2009
Versus
1. The State of Gujarat
2. Narcotics Control Bureau – Respondents
Criminal Appeal Nos. 23192320 of 2009
Decided On : 09-04-2024

Advocates appeared:
For the Appellant(s) : Mr. Sanjay Jain, AOR
For the Respondent(s): Ms. Deepanwita Priyanka, Adv. Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv. Ms. Srujana Suman Mund, Adv. Mr. K M Nataraj, A.S.G. Mr. Shailesh Madiyal, Sr.Adv. Mr. T A Khan, Adv. Mr. Vatsal Joshi, Adv. Mr. Annirudh Sharma Ii, Adv. Mr. Arvind Kumar Sharma, AOR

IMPORTANT POINTS
(1) Bar under Section 25 of IEA 1872 is not applicable against admissibility of confessional statement made to officers empowered under Sections 41 and 42 of NDPS Act 1985.
(2) Welfare of an individual must yield to that of community subject to State being right, just, and fair.
(3) Right against self-incrimination – Statutory provisions conferring authorities with power to search and seize are a mere temporary interference with right of accused as they stand well regulated by reasonable restrictions emanating from statutory provisions itself – Such a power cannot be considered as a violation of any fundamental rights of person concerned.

Headnote:
(A) Narcotics Drugs and Psychotropic Substances Act, 1985 – Sections 41, 42 and 67 and Section 29 read with 20(b)(ii)(c) – Seizure of Charas – Conviction and sentence – There is no reference to apprehension of existence of contraband in house of accused in recorded information – Raid at house of accused is in violation of statutory mandate of Section 41(2) of NDPS Act 1985 – Conviction of Accused No. 01 premised on recovery of 2.098 kilograms of Charas from house is not in consonance with mandatory statutory compliance of Section 41(2) of NDPS Act 1985 – Authorities have further failed to protect inherent rights granted to accused by virtue of statutory safeguards – Bar under Section 25 of IEA 1872 is not applicable against admissibility of confessional statement made to officers empowered under Sections 41 and 42 of NDPS Act 1985 – Same cannot be considered to convict an accused person under NDPS Act, 1985 – Impugned judgment of High Court as well as that of Trial Court set aside and appellants acquitted of charges framed against them by giving benefit of doubt. (Paras 47, 48, 50, 52 and 54)
(B) Constitution of India – Article 21 – Fair trial – Article 21 necessitates a just and fair trial to be a humane and fundamental right and actions of prosecution as well as authorities concerned within meaning of NDPS Act 1985 must be towards ensuring of upholding of rights of accused in order to allow to have a fair trial – Harmonious balance between Latin maxims salus populi suprema lex (Safety of people is supreme law) and salus republicae suprema lex (Safety of State is supreme law) is not only crucial and pertinent but lies at core of doctrine that welfare of an individual must yield to that of community subject to State being right, just, and fair. (Para 24)
(C) Constitution of India – Article 20(3) – Right against self-incrimination – Power of search and seizure conferred by State upon its executive or administrative arms for protection of social security in any civilized nation – Such power is inherently limited by recognition of fundamental rights by Constitution as well as statutory limitations – At the same time, it is not legitimate to assume that Article 20(3) of Constitution of India would be affected by provisions of search and seizure – Statutory provisions conferring authorities with power to search and seize are a mere temporary interference with right of accused as they stand well regulated by reasonable restrictions emanating from statutory provisions itself – Such a power cannot be considered as a violation of any fundamental rights of person concerned. (Para 41)
Facts of the case:
Instant criminal appeals arise out of SLP (Criminal) No(s). 74197420 of 2009 assailing Common Impugned Judgment dated 16.03.2009 of the Division Bench of Gujarat High Court in Criminal Appeal Nos. 1702 of 2004 and 2097 of 2004 moved by Original Accused No. 01 (Smt. Najmunisha – Appellant in Criminal Appeal No. 1702 of 2004 before the High Court) and Original Accused No. 04 (Abdul Hamid Chandmiya alias Ladoo Bapu – Appellant in Criminal Appeal No. 2097 of 2004 before the High Court).
Findings of Court:
Benefit is to be granted to appellants herein in regard to inadmissibility of their statements under
Section 67 of the NDPS Act 1985.
Result : Appeals allowed.

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JUDGMENT

AUGUSTINE GEORGE MASIH, J.

1. The instant criminal appeals arise out of SLP (Criminal) No(s). 74197420 of 2009 assailing the Common Impugned Judgment dated 16.03.2009 of the Division Bench of Gujarat High Court in Criminal Appeal Nos. 1702 of 2004 and 2097 of 2004 moved by the Original Accused No. 01 (Smt. Najmunisha – Appellant in Criminal Appeal No. 1702 of 2004 before the High Court) and Original Accused No. 04 (Abdul Hamid Chandmiya alias Ladoo Bapu – Appellant in Criminal Appeal No. 2097 of 2004 before the High Court).

2. Smt. Najmunisha (hereinafter referred to as “Accused No. 01”) was originally convicted under Sections 29 read with 20(b)(ii)(c) and 25 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act 1985”). The Trial Court had sentenced her to ten years of rigorous imprisonment and fine of INR 30,000/ (Rupees Thirty Thousand only) for the charge under Section 29 read with Section 20(b)(ii)(c) of the NDPS Act 1985 and in default, she had to undergo one year of simple imprisonment. No separate sentence was imposed under Section 25 of the NDPS Act 1985. This sentence was subsequently modified by the High Court of Gujarat while partly allowing her appeal to the effect that her fine was enhanced to the minimum prescribed fine of INR 1,00,000/ (Rupees One Lakh only) and reduced the sentence in default of paying the fine from simple imprisonment of oneyear to simple imprisonment of three months.

2A. Abdul Hamid Chandmiya alias Ladoo Bapu (hereinafter referred to as “Accused No. 04”) is the husband of Accused No. 01 who was originally convicted under Section 29 read with 20(b)(ii)(c) of the NDPS Act 1985 and sentenced to thirteen years of rigorous imprisonment and fine of INR 1,00,000/ (Rupees One Lakh only). The same was affirmed by the High Court of Gujarat while also dismissing his appeal.

3. Accused No. 05 (Nazir Ahmed alias Nazir Bazara) was convicted under Section 20(b)(ii)(a) of the NDPS Act 1985 and was sentenced to six months of rigorous imprisonment along with fine of INR 5,000/ (Rupees Five Thousand only) which he completed during the trial and therefore did not prefer any appeal before the High Court of Gujarat.

4. The facts leading to the present set of appeals are that on 10.12.1999 at about 06:30 PM, the PW02 Mrs Krishna Chaube (Intelligence Officer/Inspector) (hereinafter referred to as “Mrs Chaube”) had received a secret information that the Accused No. 04 would be carrying narcotic substances in an auto rickshaw bearing registration number GJ9T2355 at about 07:00 AM on 11.12.1999 and shall be passing through one Shahpur Darwaja. The said secret information was recorded by her and reported to her superior officer (PW03), namely Mr Pawan Singh Tomar – who was the Zonal Officer (hereinafter referred to as “Mr Tomar”).

5. Thereby, on 11.12.1999, it is submitted by the prosecution that on directions of Mr Tomar, they assembled at about 06:30 AM near the raiding point and arranged for the panchas and waited for the Accused No. 04 at different points of the raiding route. When the Accused No. 04 showed up in the said vehicle as per the information, they attempted to stop the auto rickshaw, instead it sped away at a high speed. Therefore, the members of the raiding party arranged for and chased the said auto rickshaw which was eventually, after covering a certain distance, found abandoned near a road and the Accused No. 04 was said to have escaped. On conducting the search of the said auto rickshaw, the raiding party found a driving license of one Shri Abdulgafar Gulamali Shaikh alias Rajubhai in addition to charas to the tune of 1.450 Kilograms.

6. As Accused No. 04 had run away, the raiding party eventually was led to the house of Accused No. 04 wherein the Accused No. 01 was already present. Thereinafter, the son of Accused No. 01 and Accused No. 04 – namely Abdul Rajak (hereinafter referred to as “Accused No. 02”) – came inquiring. Eventually the raiding