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TMI Blog2024 (12) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... aced the typed and dictated order relating to the proceedings initiated against the appellant for the offence punishable under Section 58 of the Narcotic Drugs and Psychotropic Substances Act, 1985 'NDPS Act' hereinafter in a sealed cover to be delivered by the successor learned Special Judge. II. FACTS: 2. Shorn of details, the facts leading to the present appeal are as under: 2.1. The appellant was posted as the Superintendent of Police 'S.P' hereinafter, Kurukshetra from the period 21st May 2004 to 18th March 2005. 2.2. On 6th January 2005, Inspector Ram Kumar, along with other Police officials, was present at the 'T' point in village Masana on G.T. Road, District Kurukshetra in a Government Vehicle, for the purpose of patrolling. Secret information was received that one Ran Singh, who was involved in the sale of Opium, was having a large quantity of Opium with him and could be apprehended. Based on this, a raiding party was formed which reached the residence of Ran Singh. Shri Virender Kumar Vij, Deputy Superintendent of Police 'D.S.P.' hereinafter, reached the spot and he directed a search to be conducted. Ran Singh was found near his residence, and he had covered himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter merely three days of his arrest. Pursuant to the order dated 27th September 2005, the report was submitted wherein it was maintained that Ran Singh was innocent, and that the Opium was planted by the three accused due to some pre-existing enmity. 2.6. The trial was conducted, and the learned Special Judge vide final judgment dated 22nd February 2007 convicted Ran Singh and acquitted Surjeet Singh, Angrez Singh and Mehar Deen. The learned Special Judge observed in the said judgment that the story wherein Ran Singh was implicated by the trio was made up by the Senior Police officials including the appellant herein and it has been found to be false and concocted, and hence Show-Cause Notice must be issued to them as to why proceedings under Section 58 of the NDPS Act must not be initiated against them. 2.7. The learned Special Judge vide order dated 26th February 2007 issued Show-Cause Notice to the appellant under Section 58 of NDPS Act and directed her to remain present before the court on 15th March 2007. Pursuant to the said order, the appellant appeared before the learned Special Judge along with her counsel and the matter was adjourned to 12th April 2007 for filing of her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervise and ensure the maintenance of Law and Order personally. The learned Special Judge, vide order dated 27th May 2008, directed the appellant to be present on the next day along with D.S.P. Ram Phal. On the next day, i.e. 28th May 2008, another exemption application for a period of one week was filed by the appellant on the ground of some agitation. The learned Special Judge adjourned the case to the next day, i.e. 29th May 2008 and observed that in the exemption applications, a personal hearing is being sought, but the appellant has not appeared before the court even once after the dismissal of the Revision petition by the High Court vide order dated 19th May 2008. 2.14. On 29th May 2008, the learned Special Judge observed that the appellant was not present, and neither was any exemption application filed, and it was directed that one more chance for personal hearing must be given to the appellant and in case she does not appear, it would be presumed that she does not want to avail any opportunity of hearing. The matter was adjourned to the next day, i.e. 30th May 2008. 2.15. On 30th May 2008, the learned Special Judge observed that neither was the appellant present nor any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings were recorded ex-parte. 5. Shri Nadkarni submitted that, even on merits, the said findings were totally unwarranted. He submitted that the appellant had served as S.P., Kurukshetra only from 21st May 2004 to 18th March 2005. It is submitted that, during that period, the appellant was neither a part of the raiding team, search team, nor the investigating team, that carried out the operation against Ran Singh on 6th January 2005. It is submitted that even the charge-sheet was filed against the accused persons only after the appellant was transferred from Kurukshetra. It is therefore submitted that no act or omission could be attributed to the appellant covered by Sections 42, 43 and/or 44 of the NDPS Act. He submitted that, as such, on the basis of such bald allegations by the accused persons, at the stage of final hearing, the issuance of notice on the premise that the appellant had committed an offence punishable under Section 58 of the NDPS Act was itself not sustainable. 6. Shri Nadkarni further submitted that the findings of the learned Special Judge are totally contradictory. On one hand, the learned Special Judge came to a specific finding that there was no violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that neither the copies of the police report and other documents referred to in Section 207 of the Cr.P.C. were supplied to the appellant nor was the appellant asked under Section 251 of the Cr.P.C. whether she pleads guilty or not. He submitted that neither the prosecution witnesses were examined nor was the appellant given an opportunity to cross-examine the witnesses. He submitted that the appellant was not given an opportunity to explain the circumstances appearing in evidence against her as required under Section 313 of the Cr.P.C. 10. Shri Nadkarni submitted that the only role of the appellant was forwarding the representation received by her to the subordinate authorities. He submitted that, as such, she was acting in discharge of her official duties. It is therefore submitted that the appellant's bona fide action was squarely protected by Section 69 of the NDPS Act read with Section 76 of the Indian Penal Code, 1860. Shri Nadkarni submitted that the findings against the appellant in the judgment and order dated 22nd/24th February 2007 were rendered without arraying the appellant as additional accused. It is submitted that the procedure adopted by the learned Special Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused Surjit Singh with the help of accused Angrej Singh and Mehardeen in the heap of dung cakes outside the house of accused Ran Singh. The story made up by the senior police officers has been found to be false and concocted which makes Smt. Bharti Arora the then Superintendent of Police, Ram Phal the then DSP and Ram Kumar Inspector liable for prosecution under section 58 of the Act. Hence, separate notices to Smt. Bharti Arora the then Superintendent of Police, Kurukshetra, Ram Phal the then DSP and Ram Kumar Inspector be given to show cause as to why proceedings under section 58 of the N.D.P.S. Act be not initiated against them. It is not out of place to mention here that accused Surjit Singh remained in custody w.e.f. 8.1.2005 till 29.8.2005 and accused Angrej Singh and Mehardeen remained in custody w.e.f. 8.1.2005 to 25.5.2005." 16. It can thus be seen that the reasons given by the learned Special Judge are that the present appellant and the other police officers have though exercised their powers under Sections 42, 43 and 44 of the NDPS Act, they were not exercised in a bona fide manner. The findings are beset with several legal infirmities pointed out hereinbelow. 17. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under the Act, or of seizing any document or other article liable to be seized under Section 42, Section 43 or Section 44; or vexatiously and unnecessarily detains, searches or arrests any person shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both. Sub-section (2) thereof provides that any person, who wilfully and maliciously gives false information and so causes an arrest or a search being made under this Act shall be punishable with imprisonment for a term which may extend to two years or with fine or with both. 21. The notice which was given by the learned Special Judge to the appellant and other police officers was for the offence punishable under Sections 58(1) and (2) of the NDPS Act. As such, it could be seen that the proceedings which were initiated by the learned Special Judge against the appellant were for the offence punishable for which the maximum sentence provided in the NDPS Act was up to two years. Section 36-A (5) of the NDPS Act which begi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 36-A(1)(d) of the NDPS Act. Shri Lekhi's only answer to this anomaly is that under Section 36-A(5) of the NDPS Act, such trials will follow a summary procedure, which, in turn, will relate to a complaint where investigation is undertaken by a narcotics officer. First and foremost, trial procedure is post-investigation, and has nothing to do with the manner of investigation or cognizance, as was submitted by Shri Lekhi himself. Secondly, even assuming that the mode of trial has some relevance to this anomaly, Section 258 CrPC makes it clear that a summons case can be instituted "otherwise than upon complaint", which would obviously refer to a summons case being instituted on a police report-see John Thomas v. K. Jagadeesan [John Thomas v. K. Jagadeesan, (2001) 6 SCC 30 : 2001 SCC (Cri) 974] (at para 8)." 23. It could be seen that while answering the said question, in paragraph 145, Nariman, J., while penning down the majority judgment has observed that under Section 36-A(1)(a) of the NDPS Act, it was only offences which were punishable with imprisonment for a term of more than three years that were exclusively triable by the Special Court. 24. It is thus clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectation of the office and the nature of the post for the reason that he is to have a respectful obedience to the law and authority in order to accomplish the duty assigned to him. 70. Good faith has been defined in Section 3(22) of the General Clauses Act, 1897 to mean a thing which is, in fact, done honestly, whether it is done negligently or not. Anything done with due care and attention, which is not mala fide, is presumed to have been done in good faith. There should not be personal ill will or malice, no intention to malign and scandalise. Good faith and public good are though the question of fact, are required to be proved by adducing evidence. (Vide Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu [AIR 1958 SC 767] , Madhav Rao Jivaji Rao Scindia v. Union of India [(1971) 1 SCC 85 : AIR 1971 SC 530] , Sewakram Sobhani v. R.K. Karanjiya [(1981) 3 SCC 208 : 1981 SCC (Cri) 698 : AIR 1981 SC 1514] , Vijay Kumar Rampal v. Diwan Devi [AIR 1985 SC 1669] , Deena v. Bharat Singh [(2002) 6 SCC 336] and Goondla Venkateswarlu v. State of A.P. [(2008) 9 SCC 613 : (2008) 3 SCC (Cri) 829] ) 71. In Brijendra Singh v. State of U.P. [(1981) 1 SCC 597 : AIR 1981 SC 636] this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truthful is said to be in good faith. It is the opposite of the intention to deceive. A duty performed in good faith is to fulfil a trust reposed in an official and which bears an allegiance to the superior authority. Such a duty should be honest in intention, and sincere in professional execution. It is on the basis of such an assessment that an act can be presumed to be in good faith for which while judging a case the entire material on record has to be assessed. 75. The allegations which are generally made are, that the act was not traceable to any lawful discharge of duty. That by itself would not be sufficient to conclude that the duty was performed in bad faith. It is for this reason that the immunity clause is contained in the statutory provisions conferring powers on the law enforcing authorities. This is to protect them on the presumption that acts performed in good faith are free from malice or ill will. The immunity is a kind of freedom conferred on the authority in the form of an exemption while performing or discharging official duties and responsibilities. The act or the duty so performed are such for which an official stands excused by reason of his office or pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It will be relevant to refer to paragraph 49 of the said judgment and order dated 22nd/24th February 2007, which reads thus: "49. During the course of arguments, it was argued by learned defence counsel on behalf of accused Surjit Singh, Angrej Singh and Mehardeen that since the senior police officers had shifted the recovery of opium from the name of accused Ran Singh to the names of plantation by accused Surjit Singh, Angrej Singh and Mehardeen, action under section 58 of the N.D.P.S. Act be taken against the senior police officers who are responsible for the same......" 33. After recording thus, the learned Special Judge has given its findings in paragraph 50 which are reproduced hereinabove. It is thus clear that the learned Special Judge recorded the findings against the appellant as well as the other police officers without even issuing notice to them. 34. The facts in the present case are somewhat similar to the facts which fell for consideration before this Court in the case of State of West Bengal and Others v. Babu Chakraborthy (2004) 12 SCC 201 : 2004 INSC 492. In the said case, the accused persons were convicted for an offence punishable under the NDPS Act. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these officers." 35. The learned Special Judge, without even giving notice to her, only on the basis of the arguments advanced at the stage of final hearing of the matter, made adverse observations against her by almost finding her guilty of the offence punishable under Section 58 of the NDPS Act. Moreover while doing so, neither any notice nor was any opportunity of being heard given to her. After the said judgment and order of conviction/acquittal was recorded by the learned Special Judge on 22nd/24th February 2007, within 2 days, a notice under Section 58 of the NDPS Act was issued to the appellant on 26th February 2007. The appellant, in response to the said notice, appeared before the learned Special Judge on 15th March 2007 and on 12th April 2007, she also filed a reply. In the meantime, the appellant approached the High Court challenging the said show-cause notice dated 26th February 2007. The High Court, vide order dated 19th May 2008, refused to entertain the revision with the observation that the order passed by the learned Special Judge should not be construed as an expression of opinion on the merits of the matter. Immediately on the very next day of the passing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned not with a case of actual injustice but with the appearance of injustice or possible injustice. In Altco Ltd. v. Sutherland [(1971) 2 Lloyd's Rep 515] Donaldson, J., said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or "to use the time hallowed phrase" that justice should not only be done but be seen to be done. In R. v. Thames Magistrates' Court, ex. p. Polemis [(1974) 1 WLR 1371] , the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge. It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the factum of two Justices being trustees of a hospital and a friendly society respectively, each of which had lent money to Bradford Corporation on bonds charging the corporate fund were disqualified from participating in the proceedings which resulted in issue of certificate in favour of the corporation to take water of certain streams without permission of the mill owners. While answering the question in negative, Blackburn, J. evolved the following rule: "... There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter; and if by any possibility these gentlemen, though mere trustees, could have been liable to costs, or to other pecuniary loss or gain, in consequence of their being so, we should think the question different from what it is: for that might be held an interest. But the only way in which the facts could affect their impartiality, would be that they might have a tendency to favour those for whom they were trustees; and that is an objection not in the nature of interest, but of a challenge to the favour. Wherever there is a real likelihood that the judge would, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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