TMI Blog2002 (4) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused who were tried by the Court at Patiala but were acquitted of the offence for noncompliance of the mandatory requirements of the NDPS Act. Once the petitioner was put on trial for an offence under the NDPS Act, the General Court Martial and the Army authorities cannot reasonably be heard to state that though the petitioner would be tried for an offence under Section 18 of the NDPS Act, yet the procedural safeguards as contained in the statutory provision would not be applicable to him being a member of the Armed Forces. The Act applies in its entirety irrespective of the jurisdiction of the General Court Martial or other Courts and since the Army authorities did not take into consideration the procedural safeguards as is embodied under the Statute, the question of offering any credence to the submissions of Union of India in support of the appeal does not and cannot arise. There is no material on record to show that the authorities who conducted the search and seizure at the house of the respondent herein has in fact done so in due compliance with Section 42 of the statute which admittedly stand fatal for the prosecution as noticed above as a matter of fact, two of the civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r purposes of intelligence or counter intelligence; or (d) persons employed in, or in connection with, the telecommunication system set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them." A plain reading thus would reveal that the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitutions makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the Armed Force Personnel and therefore Article 33 empowered the Parliament to restrict or abridge within permissible extent, the rights conferred under Part III ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding with his family in a Government married accommodation being House No.255/30 K.S. Colony, Patiala Cantt. On 28.12.1991 a search of his residence was conducted by Army Officers/Officials and allegedly opium weighing 4.900 Kgs. was recovered from his family quarter. The petitioner was thereafter placed under Arrest in military custody and was put in the quarter guard of his unit aforesaid and F.I.R. No.378 was lodged at Police Station Sadar Patiala on 28.12.1991. A sample of the opium recovered was forwarded to the Chemical Examiner for analysis and the remaining quantity of the opium, a contraband was kept with the Police. The summary of evidence was ordered by the Commanding Officer of 64 Cavalry and on the basis of directions from the Brigade Commander, the petitioner was put to trial by the General Court Martial convened under the Convening Order. The petitioner was tried under Section 69 of the Army Act for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). After the trial was over, the petitioner was convicted and sentenced by the General Court Martial. Before adverting, however, to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s strongly been criticised and negated and the same were ascribed to be strictly mandatory in nature. The issue thus : whether by reason of the respondent being a member of the Armed Forces would stand denuded of such a safeguard in the event the General Court Martial takes note of an offence under a specific statute. Article 33 of the Constitution though conferred a power but has not been taken recourse to put a bar or restraint as regards the non-availability of the statutory safeguards in terms therewith. Before proceeding further, however, it would be convenient to note certain provisions of the NDPS Act, namely, Sections 18:42:50, which read as under : 18. Punishment for contravention in relation to opium poppy and opium. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing of forfeiture under Chapter VA of this Act; 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 this Act : Provided that if such officer has reason to believe that a search warrant or authorization 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 sunset and sunrise 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 within seventy-two hours send a copy thereof to his immediate official superior. 50. Conditions under which search of persons shall be conducted :- (1) When 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. 25. To be searched before a Gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a Gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a warrant or 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 of facility for the escape of an offender and he records the grounds of his belief. 16. 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 36-A of the NDPS Act. It follows that any collection of materials, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ND PSYCHOTROPIC SUBSTANCES ACT, 1985 in that he, at Patiala on 28 Dec 91 was found in illegal possession of 4 kgs and 900 grams of opium. Place : Patiala Sd/ x x x x Date : 12 Mar 92 (SD Singh) Colonel Commanding Officer The 64 Cavalry To be tried by General Court Martial. Station : Patiala Sd/ x x x x C/o 56 APO (Kamaljit Singh) Major General Dated : 14 Mar 92 General Officer Commanding 1 Armoured Division" We shall have the occasion to deal with the specific grievance as submitted in support of the respondent s contention later on in this judgment, but for the present suffice it to record that the same stated to be relating to possession of opium in contravention of Section 18 of the NDPS Act since he was found in illegal possession of 4 Kgs and 900 grams of opium at Patiala on 28th December, 1991. The charge-sheet, however, is stated to be, as noticed above, issued under Section 69 of the Army Act by one Shri S.D. Singh, Colonel/Commanding Officer 64th Cavalry and it is this charge-sheet which has been directed by the General Officer Commanding, Major General Kamaljit Singh to be tried by the General Court Martial. In the writ petition filed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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