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TMI Blog2000 (11) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... ors 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 au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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