PETITIONER: ROY V. D. Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT: 10/11/2000 BENCH: S.N.Phukan, S.S.M.Quadri JUDGMENT:
L…..I………T…….T…….T…….T…….T…….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
view expressed by this Court in State of Punjab Vs. Balbir
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
conclusion No.3 in para 57 of State of Punjab Vs. Baldev
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.
