TMI Blog1994 (3) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution. - 1698 of 1990 - - - Dated:- 1-3-1994 - S. Ratnavel Pandian and K. Jayachandra Reddy, JJ. REPRESENTED BY : Mr. R.S. Suri, Mr. Satish Vig, Mr. P.S. Jha, Mr. R.S. Sodhi, Mr. G.K. Bansal, Miss. S. Janani, Mr. Ashok Kumar Sharma, Mr. Sanjeev Malhotra, Ms. Naresh Bakshi, Mr. A.M. Khanwilkar, Mr. A.S. Bhasme, Mr. Rameshwar Gupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Act, the Leislature has taken care to incorporate several provisions in Chapter V of the NDPS Act governing the arrest, search and seizure to afford safeguards so that innocent persons are not harassed and these provisions are mandatory in nature and non-compliance of the same vitiates the trial. 3. To appreciate the questions involved, it may not be necessary to extract the said provisions in the NDPS Act extensively. Suffice if we give a gist of the said provisions since we are mainly concerned with the compliance of the provisions of Code of Criminal Procedure in respect of arrest, search and seizure subject to the limitations under NDPS Act. 4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance along with such substance. Such Officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 51 is also important for our purpose. It reads as under : 51. Provisions of the Code of Criminal Procedure 1973 to apply to warrants, arrests, searches and seizures. - The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. This is a general provision under which the provisions of Code of Criminal Procedure, ( Cr. P.C. for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Cr. P.C. 1973 reads thus : 4. Trial of offences under the Indian Penal Code and other laws. - (1) Al1 offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Therefore under this Section the provisions of the Cr. P.C. are applicable where an offence under the Indian Penal Code or under any other law is being inquired into, tried and otherwise dealt with. From the words otherwise dealt with it does not necessarily mean something which is not included in the investigation, inquiry or trial and the word otherwise points to the fact that the expression dealt with is all comprehensive and that investigation, inquiry and trial are some of the aspects dealing with the offence. Consequently the provisions of the Cr. P.C. shall be applicable in so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a witness to the search, to attend and witness the search. Section 165 Cr. P.C. lays down that whenever an officer incharge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is incharge, or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer after recording in writing the grounds of his belief and specifying in such writing, may proceed to search to cause search to be made. Section 165(4) lays down that the provisions of this Code as to search warrants and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under Section 165 also. The scope of these two sections have been examined in a number of cases. In Wasan Singh v. State (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Sunder Singh v. State of Uttar Pradesh, AIR 1956 SC 411 it is held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. In Deepak Ghanshyam Naik v. State of Maharashtra, 1989 Crl. L.J. 1181, a case arising under the NDPS Act, a Division Bench of the Bombay High Court considered the effect of non-compliance of Section 100(4) namely that two or more independent respectable inhabitants of the locality were not called to be present during the search and that on the other hand two Panchas of different locality were called to be present. The Division Bench considered the explanation that Parnaka was at a distance of half a kilometre from the place of distance and they called the Panch witnesses from that place and that they could not call somebody present on the road where the incident took place and held that there was no material to hold that Panch witnesses from Parnaka were in any way mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation given by any other person and taken down in writing that an offence under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Sub-section (2) of Section 42 further lays down that when such officer takes down any information in writing or records grounds for his belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior. 10. As already noted Chapter V contains the provisions from Section 41 onwards regarding the power to arrest, issue warrants and carrying out seizure etc. and the procedure to be followed. These provisions are attracted if any of the steps mentioned thereunder are to be taken when there is reason to believe that any person who is sought to be arrested and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. In both these provisions there are two important requirements. One is that the Magistrate or the Officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provision. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain Officers of higher rank and empowered can act to effect the arrest or search. This is a safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. Therefore if an arrest or search contemplated under these provisions of NDPS Act has to be carried out, the same can be done only by competent and empowered Magistrates or Officers mentioned thereunder. 12A. Nand Lal v. The State of Rajasthan (1987) 3 Crimes 629 is a case where a Police Head Constable and a Station House Officer, were not empowered to carry out investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nally may be conveyed orally by informants. It is not obligatory upon the officer to disclose this material on the mere allegation that there was no material on which his reason to believe can be grounded. Whether there was such reason to believe and whether the Officer empowered acted in a bona fide manner, depends upon the facts and circumstances of the case and will have a bearing in appreciation of the evidence. However, if such information is given by any person, the same should be taken in writing as provided both under Sections 41(2) and 42(1). But under the proviso to Section 42(1) if such empowered officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of offender, he may enter and search at any time between sunset and sunrise after recording the grounds of his belief. However, if such arrest, search or seizure are to be made by the empowered officer between sunrise and sunset, there is no such mandatory provision for recording of the reasons for belief. 15. In K.L. Subhayya v. State of Karnataka AIR 1979 SC 711 this Court considering the scope of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the circumstances that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. 17. As discussed above, in considering whether a provision in a statute is mandatory and the effect of non-compliance of the same, the courts should keep in mind the real intention of the legislature keeping in view the whole scope of the Act and the particular provisions to be construed in the context. Keeping these principles in view, we shall proceed to consider the nature of some of these relevant provisions. 18. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to the innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. 19. The author Lewis Mayers in his book titled Shall We Amend the 5th Amendment p. 228 stated as under: To strike the balance between the needs of law enforcement on the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest. When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a magistrate. Thus the provisions of Section 50 are mandatory. 21. Both under Sections 41 and 42, the officers empowered can enter and search the place and also arrest the person suspected to have committed the offence either on the basis of his own knowledge or on the basis of information reduced to writing. If an arrest is made and a person is to be searched, then as noted above Section 50 comes into operation and the search of the person has to be carried out in the manner provided thereunder. Some of the High Courts also have taken the same view. In Jang Singh v. State of Haryana (1988) 1 Crimes 446 it was held that it is an im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dha v. State of Gujarat, (1969) 2 SCR 799, while considering the scope of Section 15 of the Suppression of Immoral Traffic Act, whereunder the authorised officer had to record the grounds of his belief, on the effect of failure to do so, this Court observed thus: The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers under s. 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of s. 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure Code. While concluding on the legal effect with regard to an irregular search under Section 165 of the Code, it was observed thus: In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub-ss. (1) and (2) of s. 15 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search personally or authorizes any officer of Customs to do so, if he has reason to believe the facts mentioned therein, under S. 165(1) of the Code of Criminal Procedure the recording of the reasons for believing the facts is only to enable him to make a search urgently in a case where search warrants in the ordinary course cannot be obtained. It is, therefore, not possible to invoke that condition and apply it to a situation arising under S. 105 of the Act. It therefore emerges that the empowered officer while effecting the search or arrest without warrant as provided under Sections 41 and 42(1) has to carry out search in accordance with Section 165 Cr. P.C., but if he fails to record reasons, such a failure will not amount to an illegality vitiating the trial. The effect of such a failure has to be kept in view in appreciating the evidence as held in Bai Radha s case (supra). 24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions also are there in the Cr. P.C. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal. (2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction. (2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 26. We will now proceed to consider the question whether any interference is called for in these matters in view of above conclusions. In most of the cases filed by the State of Punjab, arrest or search were carried out by police officers who were not empowered and in such a situation, as held above, compliance of Section 50 did not arise. But the cases have been thrown out on the ground that S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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