CAUSE TITLE:
State Of Punjab Vs Balbir Singh
DATE OF JUDGEMENT:
1 March, 1994
JUDGE(S):
The Honourable Mr. Justice K. Jayachandra Reddy
The Honourable Mr. Justice S.R. Pandhian
PARTIES:
Petitioner(s): State Of Punjab
Respondent(s): Balbir Singh
SUBJECT
The appeal was filed by the petitioner for questioning the acquittal of the accused under the NDPS Act, by the Trial Court and the High Court.
IMPORTANT PROVISIONS
The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter as The NDPS Act)
Section 42(2): When an officer records facts in writing under sub-section (1) or grounds for his belief under the proviso thereto, he must provide a copy to his immediate official superior within 72 hours.
Section 50: Conditions under which search of persons shall be conducted.
Section 52: Disposal of persons arrested and articles seized
OVERVIEW
- The accused was acquitted in this instance because the arrest, search, and seizure were in violation of the mandatory provisions of the NDPS Act.
- The High Court declined to grant leave to appeal against the said order of acquittal.
- The State of Punjab filed special leave applications and appeals in response to this in the Supreme Court.
- The convicted accused had also questioned their convictions, claiming that their arrest and trial were illegal.
ISSUE
- Whether any arrest and search of a person or search of a place without conforming to the provisions of the NDPS Act, becomes illegal and consequently vitiates the conviction?
ARGUMENT ADVANCED BY THE PETITIONER
- The petitioner's main argument was that in all the cases, the police officers made arrests, searches, and seizures based on reasonable suspicion of committing a cognizable crime rather than on any prior information that an offence punishable under the NDPS Act had been committed, and thus the question of complying with some of the NDPS Act's provisions in this regard at the time of the arrest, search, and seizure would not arise-and as long as such arrest, search and seizure were substantially in accordance with the provisions of Code of Criminal Procedure, it cannot be declared as illegal.
ARGUMENT ADVANCED BY THE RESPONDENTS
- It was submitted since deterrent punishments were prescribed under the NDPS Act, the Legislature had taken care to include several provisions governing the arrest, search, and seizure to provide safeguards so that innocent people were not harassed, and that those provisions were mandatory in nature, and non-compliance vitiated the trial.
JUDGEMENT ANALYSIS
- The purpose of the NDPS Act is to establish strict guidelines for the control and regulation of operations involving such medications and substances. At the same time, various protections are provided to protect innocent people and to prevent authorities from abusing the laws. These safeguards must be strictly followed in the context. As a result, failing to comply with these criteria has an impact on the prosecution's case and so vitiates the trial.
- Nand Lal v. State of Rajasthan [AIR 1973 Raj 103] was a case in which it was claimed that a police head constable and a station house officer were not authorised to conduct an investigation, and that as a result, the entire investigation was illegitimate and the trial was tainted. The Rajasthan High Court ruled that the entity responsible for beginning the prosecution or initiating the procedures under the Act must have a clear and unambiguous power. Only personnel empowered under the Act could take procedures regarding entry, search, seizure, and arrest, as held in Bhajan Singh v. State of Haryana [1991 CriLJ 1311], and the applicable sections of the Act were necessary. As a result, if an arrest or search authorised by Sections 41 and was is carried out under a warrant issued by another Magistrate or by an officer who is not empowered or authorised, it will be per se illegal, affecting the prosecution case and so vitiating the trial.
- Section 50 was enacted by the legislature in response to the threat of illicit drug trafficking, and it was obvious that the legislature saw fit to provide for corresponding safeguards to prevent the abuse of power thus conferred, in order to avoid any harm to innocent people and to reduce the possibility of the prosecution planting or fabricating evidence. In Jang Singh v. State of Haryana [1984 CriLJ 1135], it was held that the officer conducting the search must tell the person being searched of his right to be searched in the presence of a witness and failure to do so warrants his acquittal.
- After an arrest and seizure under the Act, Section 52 takes effect. If there is a violation of these requirements, the Court must consider the consequences. In assessing whether the Act's provisions to be followed after an arrest or search were directory or mandatory, it was important to remember that the provisions of a statute creating public obligations were, in general, directory. The requirements of this section provide procedural instructions that the officers must follow to the letter. However, if any of these orders were not strictly followed, it would not render the officers' actions null and void; at most, it would affect the probative value of the evidence relating to the arrest or search, and in rare situations, it would invalidate the arrest or search. However, if there is sufficient evidence, such a violation does not invalidate the trial or conviction.
- When a police officer made a search or arrested a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of the CrPC, Section 50 of the NDPS Act would not be attracted, and the question of complying with the requirements thereunder would not arise. If any narcotic drug or psychotropic substance was recovered during the search or arrest, the police officer who was not empowered should notify the empowered officer, who would then proceed in line with the NDPS Act's provisions. If he is an empowered officer, he must conduct the investigation in line with the other provisions of the NDPS Act from that point forward.
CONCLUSION
- On prior information, an empowered officer or authorised officer acting under Sections 41(2) or 42 should follow the provisions of Section 50 before conducting a search of a person, and such person should be informed that if he so desires, he must appear before a Gazetted Officer or a Magistrate as provided thereunder. It was the officer's responsibility to inform the person who would be searched. Failure to notify the person to be searched, and, if the person so requests, failure to take him to the Gazetted Officer or the Magistrate, would constitute non-compliance with Section 50, which was mandatory, and therefore impaired the prosecution case and vitiated the trial.
- The offences had occurred a long time ago, and it was unnecessary to order a retrial in each case, especially because much of the incriminating evidence would have vanished. As a result, the State of Punjab's SLPs were dismissed.
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