S. 58 NDPS Act | Proceedings Against Police Officials For Alleged Misconduct In Investigation Ought To Be Tried Summarily : Supreme Court

The Supreme Court today (Dec. 13) granted relief to a retired IPS Officer, quashing a summons issued by a Special Judge and the subsequent proceedings under Section 58 of the Narcotic Drugs and Psychotropic Substances (“NDPS”) Act, 1985 over allegations of misconduct during her tenure as SP, Kurukshetra, in a narcotics case investigation.

The Court said that the Special Judge is not empowered to issue a notice under Section 58 of the NDPS Act because the proceedings commenced under Section 58 are summary in nature and ought to be presided over by the judicial magistrate.

In this regard, the Court took note of Section 36-A (5) of the NDPS Act which provides that the offences punishable under the NDPS Act with imprisonment for a term of not more than three years may be tried summarily to be presided over by a judicial magistrate.

“The notice which was given by the learned Special Judge to the appellant and other police officers was for the offence punishable under Sections 58(1) and (2) of the NDPS Act. As such, it could be seen that the proceedings which were initiated by the learned Special Judge against the appellant were for the offence punishable for which the maximum sentence provided in the NDPS Act was up to two years. Section 36-A (5) of the NDPS Act which begins with the non-obstante clause provides that notwithstanding anything contained in the Cr.P.C., the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. It could thus be seen that even if the proceedings were to be initiated against the appellant for the offence punishable under Section 58 of the NDPS Act, the appellant was required to be tried summarily.”, the Court said.

The bench comprising Justices BR Gavai, Prashant Kumar Mishra, and KV Viswanathan heard the criminal appeal filed by one Bharti Arora, retired IPS Officer against the Punjab & Haryana High Court's decision refusing to quash the show cause notice issued under Section 58 of the NDPS Act, and the proceedings commenced against her for alleged misconduct in the investigation leading to the acquittal of the accused in an NDPS Case.

The Appellant contended that the Special Judge was not empowered to issue a show cause notice to her because the nature of proceedings under Section 58 of the NDPS Act being summary in nature ought to be presided over by the Judicial Magistrate. She argued that apart from the procedural irregularity, no proper opportunity for a hearing was also granted to her before passing adverse findings against her.

Under Section 58(1) of the NDPS Act, any authorized person who, without reasonable suspicion, conducts unwarranted searches, seizures, or arrests, or acts vexatiously, can be to six months imprisonment, a fine of ₹1,000, or both. Sub-section (2) penalizes anyone who willfully provides false information causing wrongful searches or arrests, with imprisonment of up to two years, a fine, or both.

Setting aside the High Court's decision, the judgment authored by Justice Gavai noted that the High Court erred in not quashing the show cause notice and proceedings initiated by the Special Judge.

Referring to Section 36-A (5) of the NDPS Act, the Court noted that for convicting a person under Section 58 of the NDPS Act, he/she must be tried summarily (by the Judicial Magistrate), therefore the entire proceedings commenced at the instance of the Special Judge was invalid.

“It is thus clear that the learned Special Judge could not have conducted the proceedings against the present appellant for the offence punishable under Section 58 of the NDPS Act inasmuch as such proceedings could have been conducted only by a Magistrate. Undisputedly, the procedure as required under Chapter XX i.e. Sections 251 to 256 of the Cr.P.C. has also not been followed.”, the Court said.

Accordingly, the appeal was allowed.

Appearance:

For Appellant(s) Mr. Atmaram N.S. Nadkarni, Sr. Adv. Mr. Divyakant Lahoti,Adv. Mr. Bijender Singh, Adv. Mr. Tejasvi Kumar, Adv. Mr. Ambar Qamaruddin, AOR Mr. Shashank Garg,Adv. Mr. Kumar Vinayakam Gupta,Adv. Mr. S.S. Rebello, Adv. Ms. Deepti Arya,Adv. Mr. A. Parul, Adv. Ms. Manisha Gupta,Adv. Ms. Himanshi Nagpal,Adv. Mr. Rishikesh Haridas,Adv. Mr. Yanthanshan Yantha,Adv. Ms. Himani Verma, Adv.

For Respondent(s) Mr. Lokesh Sinhal, Sr. A.A.G. Mr. Rajesh Kumar Singh, A.A.G. Mr. Samar Vijay Singh, AOR Mr. Nikunj Gupta, Adv. Ms. Himanshi Sakhya, Adv. Mr. Fateh Singh, Adv. Ms. Aakanksha, Adv.

Case Title: BHARTI ARORA VERSUS THE STATE OF HARYANA

Citation : 2024 LiveLaw (SC) 986

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