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TMI Blog1994 (3) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... f some of the relevant and mandatory provisions of the NDPS Act. The High Court declined to grant leave to appeal against the said order of acquittal. Questioning the same the State of Punjab has filed these special leave petitions and appeals. In a few cases, the convicted accused also have questioned their convictions on the ground that arrest and trial were illegal. Since a common question arises in all these matters, they are being disposed of by a common judgment. 2. The principal contention of Mr. Suri, learned counsel appearing for the State of Punjab is that in all these cases, the police officers effected arrest, search and seizure on reasonable suspicion that a cognizable offence has been committed and not on any prior information that any offence punishable under NDPS Act has been committed and therefore the question of complying with some of the provisions of the NDPS Act in this regard at the time of the said arrest, search and seizure would not arise and as long as such arrest, search and seizure are substantially in accordance with the provisions of Code of Criminal Procedure, such arrest, search and seizure cannot be declared as illegal. The further submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section 41 certain classes of Magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be 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 an officer of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior." 5. These are some of the provisions which are relevant and out of them Sections 41, 42, 50, 51, 52 and 57 are important for appreciating the questions raised before us. 6. In most of the cases before us, the police officers did not proceed to act under the provisions of the NDPS Act after having necessary information or after having reasons to believe as contemplated under Section 42. The search, seizure or arrest carried out by them were obviously under the provisions of the Cr. P.C. The provisions of arrest, warrant, search and seizure are incorporated in Sections 41 to 60, 70 to 81, 93 to 105 and 165 Cr. P.C. It may also be noticed at this stage that NDPS Act is not a complete code incorporating all the provisions relating to search, seizure or arrest etc. The said Act after incorporating the broad principles regarding search, seizure or arrest etc. in Sections 41, 42, 43 and 49 has laid down in Section 51 that the provisions of Cr. P.C. shall apply in so far as they are not inconsistent with the provisions of the NDPS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a gazetted officer and taking to gazetted officer thus would not arise because by then search would have been over. As laid down in Section 50 the steps contemplated thereunder namely informing and taking him to the gazetted officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of Cr. P.C. then the question of complying with Section 50 would not arise. 7. At this juncture we may also dispose of one of the contentions that failure to comply with the provisions of Cr. P.C. in respect of search and seizure even up to that stage would also vitiate the trial. This aspect has been considered in a number of cases and it has been held that the violation of the provisions particularly that of Sections 100, 102, 103 or 165 Cr. P.C. strictly per se does not vitiate the prosecution case. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search very carefully. In Matajog Dubey v. H.C. Bahri - AIR 1956 SC 44 it is held that when the salutory provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions. In State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593 = 1993 (13) E.L.T. 1622 (SC), after referring to the above-mentioned decisions, this Court observed as under : "Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs." 8. It therefore emerges that non-compliance of these provisions i.e. Sections 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons would be reaching in a public place while in transit and the information was not about the specific presence of a contraband but was only about the likelihood of such articles being brought. It thus emerges that when the police, while acting under the provisions of Cr. P.C as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of Cr. P.C. At this stage if there is any non-compliance of the provisions of Sections 100 or 165 Cr. P.C. that by itself cannot be a ground to reject the prosecution case outright. The effect of such non-compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the NDPS Act the question of complying with the provisions of the said Act including Section 50 at that stage would not arise. When the contraband seized during such arrests or searches attracts the provisions of NDPS Act then from that stage the remaining relevant provisions of NDPS Act would be at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reason to believe that an offence punishable under Chapter IV relating to such drug or substance has been committed and seize any document or other article which may furnish evidence of the commission of such offence and can seize any animal or conveyance or article liable to confiscation and can detain and search any person similarly. The empowered officer while acting under Section 43 need not record any reasons of his belief. This Section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to Section 42. 11. It is thus clear that by a combined reading of Sections 41, 42, 43 and 51 of the NDPS Act and Section 4 Cr. P.C. regarding arrest and search under Sections 41, 42 and 43, the provisions of Cr. P.C. namely Sections 100 and 165 would be applicable to such arrest and search. Consequently the principles laid down by various courts as discussed above regarding the irregularities and illegalities in respect of arrest and search would equally be applicable to the arrest and search under the NDPS Act also depending upon the facts and circumstances of each case. 12. But there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held that the search made by a Police Constable without jurisdiction and investigation made by an officer not empowered, vitiate the trial. In Shanti Lal v. State of Rajasthan (1989) 1 Crimes 276 it was similarly held that the search and arrest made by S.H.O. who was not authorised under the Act, were illegal. 13. 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. 14. The other requirement is that the Magistrate or the Officer empowered while acting under Sections 41 or 42 should have "reason to believe" that such an offence under Chapter IV has been committed and, therefore, an arrest or search was necessary as contemplated under these provisions. Section 26 I.P.C. gives the meaning of this term as under : "26. "Reason to believe" - A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise." In Dr. Pratap Singh and Others v. Director of Enforcenment, Foreign Exchange R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harassment." The very fact that sub-section (2) of Section 42 requires that 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, itself is a strong indication of the mandate that the officer should record his reasons for his belief as required under the proviso and also that the information received should be reduced to writing so that it can be verified whether there were sufficient reasons for belief. In Re : Presidential Election 1974, AIR 1974 SC 1682 this Court observed as under : "In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person so requires, take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest magistrate and if such requisition is made by the person to be searched, the concerned authorised officer can detain him until he can produce him before such gazetted officer or the magistrate. After such production, the gazetted officer or the magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. The words "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a gazetted officer or a magistrate and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely and powerfully organised and have been able to use modern advances in communication and movement to make detection more difficult. Lawbreaking tends to increase. During the same period an increasing awareness of the potentialities of abuse of power by law-enforcement officials have resulted, in both the judicial and the legislative spheres, in a tendency to tighten restrictions on such officials, and to safeguard even more jealously the rights of the accused, the suspect, and the witness. It is not too much to say that at mid-century we confront a real dilemma in law enforcement." 20. In Miranda v. Arizona, 1966 (Vol. 384) US 436, the Court, considering the question whether the accused be apprised of his right not to answer and keep silent while being interrogated by the police, observed thus: "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtue of Section 51 have to be carried under the provisions of Cr. P.C. particularly Sections 100 and 165. The irregularities, if any, committed like independent witnesses not being associated or the witnesses not from the locality, while carrying out the searches etc. under Sections 100 and 165 Cr. P.C. would not, as discussed above, vitiate the trial. But a question may still arise that when an empowered officer acting under Sections 41 and 42 of the Act, carries out a search under Section 165 Cr. P.C. without recording the grounds of his belief as provided under Section 165, whether such failure also would vitiate the trial particularly in view of the fact that such a search is connected with offences under the NDPS Act. Neither Section 41(2) nor Section 42(1) mandates such empowered officer to record the grounds of his belief. It is only proviso to Section 42(1) read with Section 42(2) which makes it obligatory to record grounds for his belief. To that extent we have already held the provisions being mandatory. A fortiori, the empowered officer though is expected to record reasons of belief as required under Section 165, failure to do so cannot vitiate the trial particularly wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside." The observations made in the above case have been relied upon by this Court in Shyam Lal Sharma and Anr. v. State of Madhya Pradesh - AIR 1972 SC 886. No doubt in K.L. Subhayya's case (supra) failure to record the grounds of belief as required under Section 54 of the Mysore Excise Act amounted to an illegality vitiating the trial. But there it must be noted that Section 54 itself gives a mandate that such grounds of belief should be recorded. But under the NDPS Act, Sections 41 and 42(1) do not give any such mandate. It is only proviso to Section 42(1) which makes the recording of grounds obligatory. In R.S. Seth Gopikisan Agarwal v. R.N. Sen, Assistant Collector of Customs and Central Excise and Others - AIR 1967 SC 1298, a question arose whether the customs officer while acting under Section 105 of the Customs Act and making a search as provided under Section 165(1) should record reasons. This argument was based upon Section 105(2) which lays down that the provisions of the Cr. P.C. relating to search so far as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows : (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of Sections 100 and 165 Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. P.C. namely Sections 100 and 165 Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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