ROYV.D.

STATE OF KERALA

NOVEMBER I 0, 2000

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 41 and 42-Power of entry, search, seizure and arrest without warrant or authorisation under-Scope of-Held, any collection of material, detention C 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 Act, lacks sanction of law and is inherently illegal and as such cannot form the basis of a proceeding in respect of offences under Chapter JV of the Act and use of such material by the prosecution vitiates ~~ D

Criminal Procedure Code, 1973-Section 482- Jurisdiction of High Court under-Prosecution started on an illicit material collected on search and arrest which were per se illegal, vitiate not only the conviction and sentence based on such material but also the trial itself--Held, in such a case not quashing the proceedings would perpetuate abuse of the process of the E court resulting in great hardship and injustice to the accused-Thus, exercise of power under Section 482 to quash such proceedings would indeed secure the ends of justice.

Constitution of India-Article 2 I-Rights under-Held, the life and p personal liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law -Further, Article 2 J guarantees protection of life and personal liberty not only to citizens but also to aliens.

The appellant was searched by the Excise Inspector and was taken into G custody on the allegation of recovering of 'Ganja' from his possession. A charge under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) was filed against the appellant by the Excise Inspector on 20.02.1991, whereas the statutory notification under which he became competent so to do was issued by the State Government on H 539

A 20.10.1992. The appellant was discharged under Section 227 Cr. P.C. by the Addi. Sessions Judge on 22.02.1993 on the ground that the Excise Inspector was not authorised to file the charge sheet against the appellant. The Excise Inspector filed a fresh charge sheet against the appellant on 17.05.1993. The appellant filed a petition under Section 482 Cr. P.C. for quashing the entire B fresh prosecution against him but the same was dismissed by the High Court Hence this appeal.

It was contended by the appellant that on the basis of recovery of illicit material on search and seizure made by an Excise Inspector, not authorised under Section 41(2) or 42 (1) of the NDPS Act, no charge could have been C laid against the appellant.

 It was contended by the State that the appellant could as well raise this plea at his trial_ before the Sessions Court; and that when High Court declined to quash the proceedings it would not be appropriate for the Supreme Court to quash the proceedings.

Allowing the appeal the Court

HELD: 1.1 For exercising powers enumerated under sub-section (1) of Section 42 of the NDPS Act at any time whether by day or by night, a warrant of arrest or search issued by a Metropolitan Magistrate or a Magistrate of E the first class or any Magistrate of the second class who has been especially 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

r! such a warrant or an authorisation, an empowered officer can exercise those powers only between sunrise and sunset. However, the proviso permits such F an empowered or authorised officers 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. 1547-B-CJ

G 1.2. 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 H 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 A Chapter IV of the NDPS Act and useofsuch a material by the prosecution vitiates the trial. (547-D-EI

State of Punjab v. Ba/bir Singh, [199413SCC299, relied on.

State of Punjab v. Baldev Singh, ( 1999 I 6 SCC 172, distinguished.

2. It is well settled that the power under Section 482 Cr. P.C. has to be exerCised by the High Court, inter a/ia, to prevent the abuse of the process of any court or otherwise to secure the ends of justce. Where criminal proceedings are initiated based ?n illicit material colleced on search an~. arrest which are per se illegal and vitiate not only a conviction and sentence C 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 the abuse of the process of the court resulting in great hardship and injustice to the accused. Exercise of power under Section 482 Cr. P.C. to quash proceedings D in a case like the one in hand, would indeed secure the ends of justice.

(547-H; 548-A-BI

3. 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. Article 21 E of our Constitution guarantees protection of life and personal liberty not only to citizens of India but also to aliens. [543-BI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 967 of2000.

From the Judgment and Order dated 4.6.98 of the Kerala High Court in F Cr!. M.C. No. 2417 of 1996.

Mukul Rohtagi, Additional Solicitor General, K. Sukumaran, T.L.V. Iyer, Mahendra Anand, Varghese Kalliath, Jayanth Muthraj, KR. Shonker; R.Ravindran, Ms. Baby Krishnan, C.S. Srinivasa Rao, Rajiv Mehta, Romy G Chako, M.T. George and G. Prakash for the appearing parties.

The Judgment of the Court was delivered by

SYED SHAH MOHAMMEU QUADRI, J. Leave to appeal is granted.

This appeal is directed against the order dated June 4, 1998 passed by H

A 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 B 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 C issued by the Government ofKerala 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(l )(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 D 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 E No. 78of1993. The appellant filed Crl. M.C. No.2417of1996 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.

F 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.

G 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.

H On these contentions, the question that arises for consideration 1s


whether the impugned proceedings in Session Case No.78 of 1993 are liable A 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 B 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 C Sections 4 I (2) of the said Act.

A reference to Sections 4 I and 42 of the NDPS will be apposite. They read as under:

"41. Power to issue warrant and authorisation.-

(I) A Metropolitan Magistrate or a Magistrate of the first class or D

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 E 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. p

(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, G 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 H

SUf>REME COURT REPORTS [2000] SUPP. 4 S.C.R.

" . . , psychotropic substance In' respect of which any offence punishable uder Chpter IV has been committed or any document or other art.icle which may furnish evidence of the commission of such offence pas been kept or concealed in any -building, conveyance or place, _may authorise any officer subordinate to him but uperior in rank to a peon, sepoy, or a constable, to arrest . such a persorf 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 u.nder subsection ( l) is addressed arid 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 officel' acting under Section 42.

42. Power of entry, search, seizur~ and arrest without warrant or authorisation.-

(I) 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, excis~, poice or any other' Clepartment of a State Government as is empowered irr th.is be-half by general or special order of the--State Government; if he nas reason to believe -from . personal knowledge or information givenby any person and taken down in writing, that any narcotic drug, r psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any docum-ent or other article which may furnish e".'idence of the commission of such offence is kept or concealed in any bu.ilding, conveyance -or nclosed place, inay, 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 suc.h entry; '

(c) seize such drug or substance and all materials used in the

manufacture thereof and any other article and any animal or A 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

subs!a~.ce: .

Provided that ifsuch officer has reason to believe that a search C 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 hisbelief.

(2) Where an officer takes down any information in writing under subsection (I) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior."

Sub-section (I) 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 F 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 G 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 H

A 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 B 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 (I) is addressed and the officer who authorised the arrest or search and the officer who is so authorised under C subsection (2) shall have all the powers of an officer acting under Section

42.

Sub-section (I) 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 D reason to believe either from personal knowledge or on infonnation 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 E 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

F 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 subsection {I) says that an empowered officer may also enter into G 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.

H Sub-section (2) of Section 42 contains a procedural directive to the

ROY V.D. t'. STATE OF KERA LA, (SYED SHAH MOHAMMED QUADRI, J.) 547

officer who takes down any information in writing under sub-section (I) or A 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 (I) 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 B 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 4 I 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 C 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 4 I (2) or exercise powers under Section 42( I) of the NDPS Act or make a complaint under clause (d) of sub-section (I) 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 E 4 I (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 v. BalbirSingh, [1994] 3 SCC 299. In para 13 Jayachandra Reddy, J. speaking for the Court observed thus :

"Therefore, if ah arrest or search contemplated under Sections 41 and

42 is made under a warrant issued by any other Magistrate or is made G 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 ta be exercised by the High Court, inter alia, to prevent the abuse of the H

A process of any court or otherwise to secure .the ends of justice. Where

criminal proceedings are initiated based ondllicit 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 B 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.

C The learned Additional Solicitor General, however, relying upon conclusion No. 3 in para 57 of State of Punjab v. 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 wou.ld only vitiate the conviction and sentence of the accused if the conviction has been recorded solely on the basis of such illicit D 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

rcovery 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 conclusion was reached by the Constitution Bench in the context of non-compliance of Section 50 of the NDPS Act. While G 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 entence of an accused. It is manifest that the recovery of illicit article in that case was by H a competent officer but was in violation of Section 50 of the NDPS Act. In

ROY V.D. v. STATE OF KERALA, [S)'ED SHAH MOHAMMED QUADRI, J.] 549

the instant case, however, the search and recovery were by an officer who A was not .empowered so to do. Further in Balbfr Singh's 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 B 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 ofCr.P.C. to quash the impugned proceedings.

For the afore-ment, ioned reasons, we set aside the order of the High C 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.

RK.S.

Appeal allowed.