TMI Blog2000 (11) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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. - CRL.A. 967 OF 2000 - - - Dated:- 10-11-2000 - S. N. Phukan, S.S.M. Quadri, JJ. JUDGMENT 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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