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NDPS Act | Officer Must Mandatory Record In Writing Reasons For Arrest/Search As Per S.41(2), Violation Will Vitiate Trial : Supreme Court
Gyanvi Khanna
12 April 2024 9:17 PM IST
The Supreme Court recently (on April 09) overturned the conviction of the accused individuals under the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act), rejecting the interpretation of Section 41 (Power to issue warrant and authorization) put forth by the National Bureau of Narcotics.Imperatively, this Section empowers the competent officer to arrest or conduct a search. To do so,...
The Supreme Court recently (on April 09) overturned the conviction of the accused individuals under the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act), rejecting the interpretation of Section 41 (Power to issue warrant and authorization) put forth by the National Bureau of Narcotics.
Imperatively, this Section empowers the competent officer to arrest or conduct a search. To do so, the officer must have a reason to believe that an offence that requires a search has been committed. As per Section 41(2) of the Act, such reason to believe must arise either from personal knowledge of the said Officer or information given by any person to him. Additionally, such knowledge or information is required to be reduced into writing by virtue of expression “and taken in writing.”
In the present case, there was no written information, as stipulated under the Act, with the raiding party before it commenced the search in the accused house. In this context, the Court turned down the National Bureau of Narcotics's contention that there is no need to take down information when it arises from personal knowledge.
“The learned Counsel of the Respondent No. 02 presents an alternate argument that the expressions “personal knowledge” and “and taken in writing” contemplated by Section 41(2) of the NDPS Act 1985 ought to be read disjunctively, thereby eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer. We are not inclined to accept this interpretation.,” the Court said.
To bolster this finding, the Court also cited the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299. In this case, the Court had stressed on recording the reasons specifically when the empowered officer has a reason to personally believe that an offence under the act has been committed and a search is necessary between sunset and sunrise. The Court also went on to add in Balbir Sing, “To this extent, these provisions are mandatory, and contravention of the same would affect the prosecution case and vitiate the trial.”
The facts of this case are such that one Krishna Chaube (Intelligence Officer/Inspector) had received secret information that Accused No. 04 would be carrying narcotic substances in an auto-rickshaw. She recorded the secret information and reported it to her superior officer, Pawan Singh Tomar. However, as per the prosecution's stance, the accused sped away at a high speed to escape from the raiding team. Thereafter, the team found the abandoned vehicle, though the accused had escaped. Eventually, the team conducted a search in the accused's house and arrested all the involved accused persons. The Trial Court convicted three accused persons and acquitted the remaining two. The High Court also did not interfere with the conviction. In this background, the case traveled to the Supreme Court.
In the stream of observations, the Top Court also highlighted that when the search was conducted in the house of an accused, there was neither personal knowledge nor any other information. The information received by the officer who conducted the search was limited to the extent that an auto rickshaw was carrying contraband. Nevertheless, there was no indication of any possession of contraband in the accused's home that prompted the instant search.
“From the aforementioned, we are of the view that the raid/search conducted at the house of the Accused No. 01 and Accused No. 04 was not based on the personal knowledge of Mr Tomar, rather it was an action on the part of raiding party bereft of mandatory statutory compliance of Section 41(2) of the NDPS Act 1985.,” the Court said.
Pointing out these procedural discrepancies, the bench of Justices Aniruddha Bose and Augustine George Masih also recognised the statutory safeguards granted to the accused and how the authorities have failed to protect the same in the instant case. At the same time, the Court also reiterated that the power to search and seize is a mere temporary interference with the rights of the accused. This is due to the reasonable restrictions outlined within the provisions themselves. Thence, such a power cannot be considered as a violation of any fundamental rights of the person concerned., the Court added.
Other Relevant Observations Of The Supreme Court
While examining the facts of the case, the court referred to Section 6 of the Indian Evidence Act of 1872. This provision deals with the relevancy of facts forming part of the same transaction. To elaborate on this principle further, the Court relied upon the decision of Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh (1996) 6 SCC 241. In this case, the Court held that it was based on the spontaneity and immediacy of such statement or fact in relation to the fact in issue. However, if there was an interval which ought to have been sufficient for the purpose of fabrication, then the said statement is not part of the same transaction.
Applying the same principle in the facts and circumstances of this case, the Court observed that there was a sufficient time gap between the abandoning of the vehicle and the search of the house as conducted by the officers.
“Moreover, it appears from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance.,” the Court added.
Based on this, the Court concluded that the said search was not a continuance of the search in the auto, which was based on secret information.
Further, the Court pointed out another discrepancy that created doubt. The Court emphasized that the owner of the auto-rickshaw was never attempted to be identified. Moreover, the person whose driver's license was found was never searched for by the authorities.
“It does not transpire from the material on record as to exactly how the Accused No. 04 came into the fiasco here except for the claim by Mr Tomar of having identified him as the auto rickshaw per the secret information fled the scene. It creates a doubt in the mind of the Court apropos the case presented by the prosecution.,” the Court stated.
Against this backdrop, the Court noted that the case against accused No. 4 has not been proved beyond a reasonable doubt. The inconsistencies in the testimonies and lack of observation of due process of law by the investigating agency has severely impacted the case of the prosecution., the Court added.
“Consequently, the conviction of Accused No. 01 premised on the recovery of 2.098 kilograms of charas from the house is not in consonance with the mandatory statutory compliance of Section 41(2) of the NDPS Act 1985.,” the Court concluded and proceeded to give the benefit of doubt to the accused persons. Thus, the Court set aside the impugned judgments of the High Court as well as of the Trial Court.
Case Title: Smt. Najmunisha, Abdul Hamid Chandmiya alias Ladoo Bapu Vs. State of Gujarat, Narcotics Control Bureau
Citation : 2024 LiveLaw (SC) 298
