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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

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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.-

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(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

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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

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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

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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.