Granting bail under NDPS Act

06-12-1989-N.D.P.S. Act is a special Act dealing with special class of crimes which is an international menace. Therefore the Legislature in its wisdom has enacted certain special provisions affecting the powers of the Trial Court in matter of granting bail. The cases are tribal by the Special Courts created u/s 36 of the Act. Although the Magistrate before whom the person accused of crime under the N.D.P.S. Act is produced, may authorise his detention for a period not exceeding 15 days, the Magistrate is, upon expiry of the aforementioned period, obliged to forward such person to the Special Court. u/s 36A(c), the Special Court may exercise, in relation to the person forwarded to it under clause (b) of that section, the same power which a Magistrate may exercise u/s 167 of the Code of Criminal Procedure. It is the Special Court who takes cognizance of the crime just as a Magistrate does in respect of other cases, under the Indian Penal Code. In other words, the Special Courts constituted under the N.D.P.S. Act perform the same functions in respect of the offences under the N.D.P.S. Act which the Magistrate performs in respect of other offences under the Indian Penal Code. Continue reading

S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal [ALL SC 2018 SEPTEMBER]

September 05, 2018: Section 42 OF NDPS ACT-An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public-CONVICTION UPHELD. Continue reading

Procedure and Procedural safeguards under NDPS Act must scrupulously be complied therewith.

AIR 2009 SC 3214 : (2009) 12 SCR 611 : JT 2009 (11) SC 516 : (2009) 10 SCALE 659 : (2009) CriLJ SC 4123

(SUPREME COURT OF INDIA)

Sarju alias Ramu Appellant
Versus
State of U. P. Respondent

(Before : S. B. Sinha And Deepak Verma, JJ.)

Criminal Appeal No. 1446 of 2009 (arising out of S.L.P. (Cri.) No. 7722 of 2008), Decided on : 07-08-2009.

Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 8 and 21 read with Section 42—Recovery of morphine—Conviction and sentence—Violation of mandatory procedural requirements regarding search and seizure—In a case under NDPS Act, particularly where serious allegations are made against the police officials, recovery of contraband in presence of independent witness assumes significance—Provisions of NDPS Act being harsh in nature, procedural safeguards contained therein must scrupulously be complied therewith—Prosecution case shrouded in mystery—Appellant at no point of time was informed that he had a statutory right of being searched by a Gazetted Officer—So-called consent letter was obtained only after they had been arrested—Even in relation to preparation of consent letters, there is a glaring discrepancy—SHO had no authority to make search—Provisions of Section 42 not substantially complied with—Impugned judgment set aside—Appeal allowed. Error! No text of specified style in document. vs. Error! No text of specified style in document.

Narcotic Drugs and Psychotropic Substances Act, 1985—Section 33—Probation of Offenders Act, 1958—Section 4—Conviction—Benefit of Probation Act extended to accused persons in a truncated manner—No reason assigned by Special Judge as to why such a provision had to be resorted to in case of one of accused only—High Court should have drawn attention of Trial Judge on the glaring mistake committed by him. Error! No text of specified style in document. vs. Error! No text of specified style in document.

Counsel for the Parties:

Anup Kumar, Shoeb Alam, Gaurav, Ashok Anand (for Dr. Kailash Chand), for Appellant

Mohd. Fuzail Khan, Anil Kumar Jha, for Respondent.

Judgment

S. B. Sinha, J—Leave granted.

2. This appeal by special leave arises out of a judgment and order dated 30th January, 2008 passed by a learned single judge of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No. 491 of 1991 whereby and where-under the judgment of conviction and sentence dated 4th September, 1991 passed by the V Additional Sessions Judge, Barabanki in Sessions Trial Nos. 393 of 1989 and 395 of 1989 convicting the appellant for commission of an offence punishable under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “NDPS Act”) and sentencing him to undergo 10 years’ rigorous imprisonment as also the fine of ` 1 lakh, and in default, to undergo one year’s rigorous imprisonment, was affirmed.

3. Shrikant Mishra was the Station House Officer (SHO) of Safdarganj Police Station situate in the district of Barabanki. He and other members of the police party were on a patrolling duty. They came out of the Police Station in the night of 5th January, 1989 with Constable No. 56 Ram Shankar Srivastava (P.W.3) and Constable No. 277-Vidya Prasad Pandey. They reached near a village commonly known as “Baghaura” in the official jeep No. UHG 4682, which was driven by one Satyadev Ojha.

4. An informer allegedly reported to the appellants as also one Shobhalal of village Baghaura and Ramdutt @ Dutta of village Bariarpur illegally selling morphine in packets to the truck drivers and the people of the area. According to the said informer, they were said to have been sitting on the road side near the mill of one Vishwanath Kashyap from 6 O’clock in the morning. Appellant along with said Shobhalal and Ramdutt were said to have been identified by the said police party to be sitting on the road side at about 6.15 a.m. They became a bit perplexed and frightened after seeing the police party. “Being assured”, Shrikant Mishra, Officer-in-charge, went to Barabanki to obtain authority letter for the purpose of carrying out search and seizure. He instructed the other constables to keep an eye on them. He upon obtaining the authority letter allegedly came back from Barabanki, after some time. He requested some passer-by to become witness to the seizure. They allegedly refused.

5. Letters of consent were prepared in the names of accused to the effect that they were ready and willing to be searched by the Officer-in-Charge in stead and place of a Gazetted Officer. Persons of all the accused were searched. From the right pocket of the sweater of the appellant 40 packets of morphine and from his left pocket about 70 grams of morphine wrapped in a paper were found. From the person of Shobhalal about 82 grams of morphine was found; whereas from the person of Ram Dutt about 53 grams of morphine was recovered.

6. Appellant, however, has a different story to tell. According to him, the SHO as also the constables had an evil eye on the appellant’s wife. They came to his house at about 9.00 p.m. in the night of 5/6.1.1989 while his wife was serving the food to the children. He was not well. When the door of his house was knocked by a constable, his wife who examined herself as D.W.1 came out of the house and saw the Constable and the SHO. The constable was used to be called by local people as “Lala”. They enquired about him. When D.W. 1 wanted to call him, the said constable said that there was no work with him but it was with her. He thereafter told the SHO that this was the same woman who goes to Chakki for grinding. On hearing that, she started going back to her house. The said constable advanced towards her. She shouted loudly. On her shouting, Sohan Lal and the appellant came. D.W. 1 was slapped by the said constable 2-3 times and thereafter the appellant was arrested. D.W. 1 along with Sohan Lal and her brother-in-law went to Barabanki to the house of the Superintendent of Police by truck. The Superintendent of Police was described as “Captain Sahib”. They could not meet him at that time and on being informed that he had been sleeping and the Superintendent of Police would meet them only by 7.30 in the morning. They kept sitting in front of the gate; they met the Superintendent of Police at about 8-9 O’clock in the morning. An application was given to him. Admittedly, a telegram was also sent.

7. The learned trial judge, relying on or on the basis of the evidence of Shrikant Mishra, SHO (P.W.1) and Rama Shankar Srivastava (P.W.3) recorded a judgment of conviction. In regard to the sentence imposed to the accused, it was ordered :

“Accused Sarju @ Ramu and Ramdutt @ Dutta under Section 8/21 of the N.D.P.S. Act, thus 10 years (10) rigorous punishment to each and ` 1,00,000/-. ` 1,00,000/- (Rupees One One Lac only) each is imposed fine. On non-payment of fine punishment of additional imprisonment shall have to be undergone.

By giving benefit of Section 33 N.D.P.S. Act to accused Shobha Lal of Prohibition (sic Probation) of Offenders Act of bond of good conduct of 2 years and 2 balls of ` 10,000/-, ` 10,000/- (Rupees Ten Ten Thousand only) and on filing the sureties of the same amount may be released, subject to the condition that he may give written undertaking to this effect that during this period he shall not do any act against law and shall remain of good conduct during this period and shall maintain peace. Whenever he summoned by the Court he by being present shall received the punishment, which the Court may give him.”

8. The High Court by reason of the impugned judgment has affirmed the said judgment while rejecting the appeals preferred by the appellant.

9. The prosecution case is shrouded in mystery. Although in the First information Report (‘FIR’), it was stated that information was received from the informer, but the P.W. 1 in his deposition before the learned trial judge stated : “

10. From the police station had gone in the night for the gasht. At what time went, this I can intimate by looking to the Roznamcha. Informer had met on the road. At what time he met, do not remember. That place also do not remember as to where he met. But had met on the Lucknow, Faizabad Marg. At the time had reached at Baghora Chhaki, that time do not remember. But it was recorded in the Fard. That Fard was prepared by me. Was written on my directions. The Fard which I have got written from Constable Vidhya Prasad Pandey by speaking, in the finger of my hand was injured. That is why I had not written it……

11. Faizabad Barabanki Road is sufficiently operation road. Every time people keep on coming going. Kharkhara, truck, buses, and jeeps keep on coming going. We people had gone in uniform. After the meeting with the Informer the witnesses were not searched because after looking to the situation, would have looked for the witnesses when we people reached at the chhaki, then accused Ramu was standing in front of Chhaki. I recognized him before hand. I had no specific acquaintance with him but these people usually used to keep sitting at the chhaki of Vishwanath, that is why I knew. Those days were sitting on the chhaki of Vishwanath. I knew and recognized him. I do not remember at this time as to who else used to sit at a distance of 5-7 steps from Ramu had stopped the jeep. By looking to us the accused went towards the chaki, cannot intimate this that he went running. The constable by getting down stopped him. The constable said stop, then he stopped. Behind the chhaki, leaving to fields there is village. In front of the chhaki is road and field. In the field crop was sown. After the stopping by the constable I immediately reached. Whatever the informer had intimated me, in connection with that, enquiry from the accused then he said that this matter is correct that I have Morphine. Direction was given to the employees that keep on watching them. I am going to get the authority letter. For going to Barabanki and coming back, it took me how much time I do not remember. As to at what time I reached on the spot by getting the authority letter. When I reached back at the place of the incident, then mob had not assembled there. What is important to write in the recovery Fard, I know. Stopping of jeep, going towards the chhaki of the accused, mention of stopping the accused by the constable is not in the Fard, because it was not necessary to write this. Whatever was considered necessary that was recorded. 2-4 people came on the spot, I asked them to witness, but they did not get prepared. I do not remember now as to which which constable were there along with. In those days at my police station Ram Shankar Srivastava was posted at the police station who was also with me at the time of the incident. His appointment was also in that very Halka. I do not know that the wife of accused Ram on date 5.1.89 night gave one application before Captain Sahib that to her husband, Daroga and constable Ram Shankar by catching have taken him away. On the same night took him away in the night by catching. I do not know that in this context his wife has sent telegram to Captain Sahib and the Home Secretary also.”

10. The learned Trial Judge accepted that an application and telegram were brought to his notice but he had not carried any investigation in relation thereto.

11. Vishwanath Kashyap near whose house the accused were said to have been sitting was a Member of the Legislative Assembly. Why he could not be asked to be a witness to the search has not been explained. The time when the information was received was not mentioned in the General Diary. Even the distance of the place where such information is received from the police station was not noticed. The names of the persons who refused to be a witness had not been recorded. He accepted that in terms of the Code of Criminal Procedure, the same should have been noted but the said provisions have not been complied with. Shrikant Mishra did not state that the accused persons were informed about their right to be searched by a Gazetted Officer and/or that the purported consent letters marked as Exhibits A-3, A-4 and A- 5 were not written by him.

12. P.W. 3-Ram Shanker Srivastava, in his evidence, however, stated :

“1. On date 6.1.89, I was posted in Police Station Safdarjung as, Constable. On that day, I along with the Head Daroga Shri Kant Mishra by jeep were going on road holder duty. Vidhya Prasad Pandey Constable and Driver Satyadev had come. When we people at Ferozabad Barabanki road, then the informer of Darogaji met. He talked to Daroga Ji. Then Daroga Ji by taking we people reached at the Chakki of Vishwanath Neta in village Baghora. At that time it was the time of 6.15 o’clock in the morning. At the chakki, Ramu @ Sarju, Shobha Lal and Dutta @ Ramdutt were sitting. By looking to we people, got perplexed. We people got assured that they have some illegal material, as was intimated by the informer. Daroga Ji said that you people stop, I am going to Barabanki to obtain the authority letter and he went away by jeep to obtain the authority letter. Constable Vidhya Prasad kept stopped those people. Darogaji came back at 8.10 o’clock of the day. Then Darogaji asked the mob assembled there to give evidence. Then those people denied to give evidence due to fear of Vishwanath Neta.

Then Darogaji enquired about their names and addresses and said that you will give the search to me, or to Gazetted Officer or the Magistrate. Then he said we shall give the search to you. In this connection Daroga ji prepared 3 separate consent Fards. It was read over and by hearing it we people consented. The accused also had put their signatures and TI. The witnesses were shown. Ex. 3 and 5, by looking and reading to which, the witness is said that these are the same Fards which were prepared by Daroga ji at the site and on this are my signatures.”

He furthermore informed that they have committed an offence punishable under Section 8/18 of the NDPS Act and they have been taken in custody before the Fard was read over to them and signatures and left thumb impression were obtained.

It is accepted that the patrolling duty starts at 6 – 8 o’clock in the evening and finishes at 8 o’clock in the morning. The Baghaura village was about 5 to 6 furlongs before Barabanki. According to P.W.3, the informer had met them 3-4 hours prior to the raid. According to P.W. 3, they were sitting in the jeep when the intimation was given by the informer. The intimation was said to have been given at the Baghaura road but they did not go in the search of the accused in the village wherefor no reason could be assigned.

13. The FIR disclosed that the information was given at about 6 o’clock in the morning and the raid was conducted at about 6.15 a.m. A closer look to the statement made in the FIR would show that in fact according to the informer the accused had been sitting on the road side from before 6 o’clock in the morning. It is, therefore, difficult to believe the prosecution story. The statement of D.W.-Smt. Kusum Devi, wife of the appellant that they had been sitting near the gate of the Superintendent of Police at Barabanki had not been denied or disputed. The fact that an application as also a telegram had been sent has not also been denied or disputed. In a case of this nature, at least, for fair investigation, if not the prosecution, the learned Special Judge himself should have exercised his jurisdiction under Section 311 of the Code of Criminal Procedure. He should have called the Superintendent of Police and recorded his statement; he could have also called for the original telegram from the Superintendent of Police’s office or even from the Post Office.

14. In a case under the NDPS Act, particularly where such serious allegations are made against the police officials, recovery of contraband in presence of the independent witness assumes significance. (See Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321)

15. It is now also well settled that the provisions of the NDPS Act being harsh in nature, the procedural safeguards contained therein must scrupulously be complied therewith.

It was so held by a Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999) 6 SCC 172)) in the following terms :

“57. On the basis of the reasoning and discussion above, the following conclusions arise :

(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.

(3) 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.

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.

(6) That in the Context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards pro vided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.”

(See also Noor Aga v. State of Punjab and Another (2008) 9 SCALE 681) and Ranu Premji v. Customs Ner Shillong Unit (2009) 7 SCALE 568))

In Baldev Singh (supra), this Court noticed Miranda v. Arizona (384 US 436) in the following terms :

“30. In D. K. Basu case the Court also noticed the response of the Supreme Court of the United States of America to such an argument in Miranda v. Arizona wherein that Court had said (SCC pp. 434-35, para 33) :

“The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be ‘right, just and fair’.”“

16. Appellant at no point of time was informed that he had a statutory right of being searched by a Gazetted Officer. The combined reading of the depositions of the prosecution witnesses are pointers to the fact that the so-called consent letters were obtained only after they had been arrested. Even in relation to preparation of consent letters, there is a glaring discrepancy. According to P.W. 3, it was SHO himself who wrote the said letters but Shrikant Mishra has different story to tell, namely, that he himself had suffered an injury on his finger and as such he had asked some other person to write the said consent letters. It is also difficult to believe that Mishra, leaving the accused in the mercy of P.W. 2 and P.W.3, would go back to Barabanki to obtain letters of approval. The nature of the statements made by him before the Court clearly shows that the same was manipulated.

We must place on record that in State of Punjab v. Balbir Singh ((1994) 3 SCC 299), this Court observed as under :

“10. It is thus clear that by a combined reading of Sections 41, 42, 43 and 51 of the NDPS Act and Section 4 CrPC regarding arrest and search under Sections 41, 42 and 43, the provisions of CrPC namely Sections 100 and 165 would be applicable to such arrest and search. Consequently the principles laid down by various Courts as discussed above regarding the irregularities and illegalities in respect of arrest and search would equally be applicable to the arrest and search under the NDPS Act also depending upon the facts and circumstances of each case.

11. But there are certain other embargoes envisaged under Sections 41 and 42 of the NDPS Act. Only a Magistrate so empowered under Section 41 can issue a warrant for arrest and search where he has reason to believe that an offence under Chapter IV has been committed so on and so forth as mentioned therein. Under sub-section (2) only a Gazetted Officer or other officers mentioned and empowered therein can give an authorization to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing. Under Section 42 only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. In both these provisions there are two important requirements. One is that the Magistrate or the officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provision. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain officers of higher rank and empowered can act to effect the arrest or search. This is a safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. Therefore if an arrest or search contemplated under these provisions of NDPS Act has to be carried out, the same can be done only by competent and empowered Magistrates or officers mentioned there-under.

12. Nand Lal v. State of Rajasthan is a case where a police head constable and a station house officer were not empowered to carry out investigation and it was contended that the whole investigation was illegal and consequently the trial was vitiated. The Rajasthan High Court held that for launching the prosecution or for initiating the proceedings under the Act, the authority doing so must have a clear and unambiguous power. In Bhajan Singh v. State of Haryana it was observed that only officers empowered under the Act can take steps regarding entry, search, seizure and arrest and that the relevant provisions of the Act are mandatory. In Umrao v. State of Rajasthan it was held that the search made by a police constable without jurisdiction and investigation made by an officer not empowered, vitiate the trial. In Shanti Lal v. State of Rajasthan it was similarly held that search and arrest made by SHO who was not authorised under the Act, were illegal.”

17. We must, however, notice that recently a Constitution Bench of this Court in Karnail Singh v. State of Haryana (2009) 10 SCALE 255) in view of difference of opinion in Abdul Rashid Ibrahim Mansuri v. State of Gujarat ((2000) 2 SCC 513) opining that compliance of Section 42 of NDPS Act is mandatory in nature and in Sajan Abraham v. State of Kerala ((2001) 6 SCC 692) holding the said principle to be directory, opined as under :

“(a) The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.”

Even, admittedly, Shrikant Mishra had no authority to make search. Nothing has been brought on record to show that the provisions of Section 42 of the NDPS Act were substantially complied with.

18. Before parting, however, we may notice a disturbing fact. The learned Special Judge has let off accused No. 3 Shobha Lal under the Probation of Offenders Act. He referred to Section 33 of the NDPS Act.

Section 33 of the NDPS Act reads as under :

“33. Application of Section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958.- Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) or in the Probation of Offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Section 26 or Section 27.”

He, therefore, misread the entire provision. We do not see any reason as to why such a provision had to be resorted to in the case of one of the accused only. The High Court, in our opinion, also should have drawn the attention of the learned trial Judge on the glaring mistake committed by him.

19. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. The appellant is in custody. He is directed to be set at liberty forthwith unless wanted in any other case.

Sukhdev Singh Vs. State of Haryana [ALL SC 2012 DECEMBER] [Mandatory Compliance U/s 42 of the NDPS Act [Supreme Court Directions]

SUPREME COURT OF INDIA

Sukhdev Singh Vs. State of Haryana

  • If the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.

DATE:-December 13, 2012

ACTS: SEC 41 AND 42 OF NDPS ACT

[Criminal Appeal No. 2118 of 2008]

Swatanter Kumar, J.

1. The present appeal is directed against the judgment dated 27th March,2008 pronounced by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 802-SB of 1998. We may notice the case of the prosecution and the facts which have given rise to the filing of the present criminal appeal.

2. On 4th February, 1994, ASI Nand Lal along with HC Hoshiar Singh, HC Suraj Bhan and other police officials were present in village Jogewala, in connection with patrolling duty. ASI Nand Lal, who was examined as PW 1,received secret information against the accused that the accused was in the habit of selling chura post (poppy husk) in his house and if a raid is conducted upon the house of the accused, the accused can be caught red-handed with the contraband. One Nacchatter Singh is stated to have been associated with the raiding party which raided the house of the accused.

However, this witness was declared hostile before the Court during his examination. On conducting a search, five bags were found lying concealed under a heap of chaff in the courtyard of the house of the accused. On suspicion of having some intoxicant in his possession, the Investigating Officer served notice upon the accused under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) giving him an offer to be searched before a Gazetted Officer or a Magistrate. Accused is stated to have responded to such notice vide Ext. PC/1 where he expressed his desire to be searched before a Gazetted Officer of the police.

Upon having known the desired choice of the accused, it is stated that PW1 had sent an application, Ext. PD, to the Deputy Superintendent of Police, Dabwali, through Constable Amir Singh requesting him to reach the spot. Mr. Jagdish Nagar, DSP, reached the spot after about half an hour and upon his instruction the search of the bags was conducted. From each gunny bag, 100 grams of chura post was separated as sample. The samples as well as the remaining gunny bags weighed 39 kgs. and 900 grams each and were sealed with the seal bearing impressions J Nand NL, and thereafter were taken into possession vide recovery memo Ext.PE.

The seal NL was handed over to HC Hoshiar Singh while seal JN was retained by the DSP himself. After completing this process, a ruqa Ex. PF was sent to the police station where the FIR being Ext. PF/1 was registered under Sections 15/16/61/85 of NDPS Act. The Investigating Officer prepared a site plan Ext. PG. On return to the police station, the case property was handed over to the MHC with its seals intact. After receiving the test report Ext. PH from the Forensic Science Laboratory, Haryana, Madhuban (Karnal) and after completing all other formalities, the challan was filed.

The challan in terms of Section 173 of the Code of Criminal Procedure, 1973 (for short “Cr.PC”) was presented before the court of competent jurisdiction. The prosecution examined a number of witnesses includingPW1 Nand Lal, PW2 Jagdish Nagar, DSP and PW Nachhattar Singh. Affidavits of Nihan Singh, Head Constable and Tejas Singh, Constable (Ext. PA and PB respectively) were taken into evidence. The accused took the plea that he had been falsely implicated in the case at the instance of Harnand Singh, Ex-Member of the Block Samiti of the area and examined four witnesses in support of his case.

The Trial Court vide its judgment of conviction dated 4th July, 1998 held the accused guilty of an offence punishable under Section 15 of NDPS Act and after hearing the party on the quantum of sentence vide its order dated 6th July, 1998 awarded 10 years’ rigorous imprisonment to the accused with fine Rs. 1 lakh and in the event of default to undergo simple imprisonment for another two years. The legality and correctness of the judgment and order of sentence was challenged by the accused before the High Court.

3. The High Court vide its detailed judgment dated 27th March, 2008declined to interfere with the judgment of the Trial Court and while upholding the same, maintained the order of sentence, giving rise to the filing of the present appeal.

4. The only contention raised before us on behalf of the appellant is that the case of the prosecution must fail for total non-compliance of the statutory provisions of Section 42 of NDPS Act. These provisions are mandatory and in the present case, there is admittedly no compliance of the said provisions, thus the accused is entitled to acquittal as the whole case of the prosecution is vitiated in law.

5. To the contra, the contention on behalf of the State is that there is substantial compliance of the provisions of Section 42 of NDPS Act and therefore, the concurrent judgments of conviction and order of sentence do not call for any interference.

6. In order to examine the merit or otherwise of the above contention, it is necessary for us to discuss the entire gamut of the prosecution evidence.

7. At this stage, it will be useful to refer to the relevant statement of ASI Nand Lal, PW1 who is stated to have received a secret information, proceeded to raid the house of the accused and recovered the chura post as noticed above: “On 04.02.1994, I was posted as In charge of CIA Staff, Dabwali. On that day, I along with Hoshiar Singh H.C. Suraj Bhan H.C. and other police officials was present at village Jogewala in connection with patrolling and detection of crimes. Then, I received a secret information that the accused present in the court is in the habit of selling chura post and if a raid is conducted at the once, chura post could be recovered from him.

On receipt of this information, I formed a raiding party and when I reached near the school of village Panniwala Morika, Nicchattar Singh son of Sunder Singh met me and he was joined in the raiding party and then the raiding party reached the house of the accused. The accused was found present in the court-yard of his house and at that time, he was sitting on a cot. Then, I conducted the house search of the accused and on search five bags lying under the heap of Turi were recovered which were lying in the court-yard of the house of the accused.

Then, I served a notice Ex. PC on the accused on the suspicion of his having possessed some narcotic substance in these five gunny bags, offering him the search of the bags before any Gazetted Officer of Police or a Magistrate. The accused as per his reply Ex.PC/1 desired the search of the gunny bags before any Gazetted Officer of Police. Ex. PC and Ex. PC/1 were signed by the accused and attested by PWs H.C. Suraj Bhan and Hoshiar Singh and Nachittar Singh independent witness. Then I sent a written application Ex.PD through constable Amir Singh to DSP Dabwali requesting him to reach on the spot. Thereafter, the DSP Dabwali reached at the spot after half an hour and then on his instructions, I conducted the search of the five gunny bags in the presence of PWs. Poppy straw was found in it. 100 grams chura post was separated as samples from each gunny bags.

The remaining on weighment was found to be 39 kgs. 900 grams in each gunny bag. The samples and the gunny bags remaining churapost were sealed with the seals NL and JN and were taken into possession vide recovery memo Ex. PE attested by DSP Jegdish Nagar, Nichhatar Singh, Suraj Bhan H.C. Seal NL after use was handed over to Hoshiar Singh H.C., while the seal JN was retained by the DSP himself I sent ruqa Ex. PF to the Police- Station for registration of a case on which for-mail FIR Ex.PF/1 was recorded by Shri Davinder Kumar ASI whose signatures I identify.

8. “It is clear from the statement of PW1 that he, upon receiving the secret information, neither reduced the same in writing nor communicated to his senior officer about receiving the secret information as required under Section 42 of NDPS Act.

9. In his cross-examination, he admitted that he had received the secret information at about 11.30 a.m. at Village Jogewala. He did not know from where the secret information was received. He was in a jeep. The distance between the house of the accused and the spot where he was at the time of receiving the secret information was merely 6 kilometers, but he reached the house of the accused only at 2 p.m. He also admitted that the house of the accused was situated in the middle of the village in a busy locality, and yet he did not call anybody from the neighbourhood at the time of effecting recovery.

10. According to the learned counsel appearing for the State, there was substantial compliance inasmuch as after effecting the recovery he had senta ruqa Ext. PF to his senior officer, on the basis of which the FIR Ext.PF/1 was registered and thus, there was substantial compliance of the provisions of Section 42 of NDPS Act. This aspect has also been considered by the High Court and while accepting the contention of the State as to substantial compliance of the provisions of Section 42 of NDPS Act, the High Court in the judgment impugned herein noticed as under:- “9-A. In the instant case too, a secret information, was received by Nand Lal, ASI on 4.2.1994, when he along with Hoshiar Singh, HC, Suraj Bhan and other police officials, was present in village Jogewala, in connection with patrol duty, and detection of crime.

It means that Nand Lal, ASI, was in motion, at the time, when he received the secret information, against the accused. Since, the secret informer had informed Nand Lal, ASI that if a raid was conducted immediately, then a big haul of contraband, could be recovered from the house of the accused, where he was present. It was his bounden duty, to immediately rush to the disclosed place, to detect the accused with contraband. It was, in this view of the matter, that he had no time to record the information, and send the same to the Officer Superior, as had he done so, there would have been every possibility of the accuse absconding, and the purpose of the very raid would have been defeated.

However, he substantially complied the provisions of Section 42 of the Act, by recording the ruqa, embodying the secret information therein, as also by sending the message to the DSP, to come to the spot, as a result whereof, he came to the spot. Since, there was substantial compliance, with the provisions of Section 42 of the Act, it could not be said that there was intentional and deliberate non- compliance thereof strictly. On account of this reason, the case of the prosecution cannot be thrown out. The principle of law, laid down in Sajan Abraha’s case (supra), a case decided by three Judge Bench of the Apex Court, is, thus, fully applicable to the facts of the present case. In this view of the matter, fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, in this regard, does not appear to be correct, and stands rejected.

11. “We may notice that the High Court, while arriving at the above conclusion, appears to have relied upon the judgment of this Court in the case of Sajan Abraham v. State of Kerala [(2001) 6 SCC 692].

12. The High Court has proceeded apparently on the basis of substantial compliance of the provisions. The concept of substantial compliance appears to have been construed on the basis that PW1 had sent a ruqa and had informed about the recovery effected on the basis of which the FIR was registered. All these are post-recovery steps taken by PW1.

13. Now, the question that arises for consideration is as to at what stage and by what time the authorized officer should comply with the requirements of Section 42 of the Act and report the matter to his superior officer. For this purpose, we must refer to Section 42 of the NDPS Act at his stage : “Section 42-Power of entry, search, seizure and arrest without warrant or authorisation-

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or 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 authorisation 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.

14. “Section 42 can be divided into two different parts. First is the power of entry, search seizure and arrest without warrant or authorization as contemplated under sub-section (1) of the said section. Second is reporting of the information reduced to writing to a higher officer inconsonance with sub-section (2) of that section. Sub-section (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd October, 2001. After amendment of this sub-section, the words ‘forthwith’ stood amended by the words ‘within 72 hours’.

In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within 72 hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub-section (2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should betaken as well as renders the safeguards provided to an accused more meaningful. In the present case, the information was received by the empowered officer on 4th February, 1994 when the unamended provision was in force.

The law as it existed at the time of commission of the offence would be the law which will govern the rights and obligations of the parties under the NDPS Act. In the case of Basheer @ N.P. Basheer v. State of Kerala [(2004) 3 SCC 609] wherein this Court was concerned with the Amending Act 9 of 2001 of the NDPS Act, the Court took the view that application of the Amending Act, where the trial had been concluded and appeal was pending on the date of its commencement and where the accused had been tried and convicted, would not apply. The contention that trials were not held in accordance with law was not sustainable for the reason that there could be direct and deleterious consequences of applying the amending provisions of the Act to trials which had concluded in which appeals were filed prior to the date of Amending Act coming into force.

This would certainly defeat the first object of avoiding delay in such trials. Another Bench of this Court in the case of Jawahar Singh @ Bhagat Ji. v. State of GNCT of Delhi [(2009) 6 SCC 490], while dealing with the amendments of Section 21 of the NDPS Act, the Court took the view that amendments made by Act 9 of 2001 could not be given retrospective effect as if it was so given, it would warrant a retrial which is not the object of the Act. The Court held as under : “9. It is now beyond any doubt or dispute that the quantum of punishment to be inflicted on an accused upon recording a judgment of conviction would be as per the law which was prevailing at the relevant time.

As on the date of commission of the offence and/or the date of conviction, there was no distinction between a small quantity and a commercial quantity, question of infliction of a lesser sentence by reason of the provisions of the amending Act, in our considered opinion, would not arise. 10. It is also a well-settled principle of law that a substantive provision unless specifically provided for or otherwise intended by Parliament should be held to have a prospective operation. One of the facets of the rule of law is also that all statutes should be presumed to have a prospective operation only.

15. “No law can be interpreted so as to frustrate the very basic rule of law. It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression is clear beyond ambiguity. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as avoidance of delay in conclusion of criminal trial.

16. Still, reference can be made to the judgment of this Court in the case of Ravinder Singh v. State of Himachal Pradesh [(2009) 14 SCC 201],wherein this Court was dealing with the question as to what would be the law applicable for imposition of a sentence irrespective of when the trial was concluded with reference to Article 21 of the Act and provision of the Punjab Excise Act, 1914 as applicable and amended by H.P. Act 8 of 1995where punishment was enhanced and minimum sentenced was provided. The Court held that it is trite law that the sentence imposable on the date of commission of the offence has to determine the sentence imposable on completion of trial’.

17. Even in the case of Hari Ram v. State of Rajasthan & Ors. [(2009) 13SCC 211], this Court stated with reference to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended byAct of 2006) that the relevant date for applicability of the Act so as the age of the accused, who claims to be a child, is concerned, is the date of occurrence and not the date of trial.

18. In the present case, the occurrence was of 4th February, 1994. The Trial of the accused concluded by judgment of conviction dated 4th July,1998. Thus, it will be the unamended Section 42(2) of the NDPS Act that would govern the present case. The provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance.

19. This question is no more res integra and stands fully answered by the Constitution Bench judgment of this Court in Karnail Singh v. State of Haryana [(2009) 8 SCC 539]. The Constitution Bench had the occasion to consider the conflict between the two judgments i.e. in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513] and Sajan Abraham (supra) and held as under:-

“35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub- sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non- sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42.

But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.

20. “Having referred to the above settled principle of law, we are unable to accept the contention raised on behalf of the State and have to grant our approval to the submission made on behalf of the appellant.

21. As per the statement of PW1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the Investigating Officer PW 1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the accused at 2 p.m. even when the distance was only 6 kilometers away and he was in a jeep. There is not an iota of evidence, either in the statement of PW 1or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 of NDPS Act.

22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that: (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery.

23. Once the contraband is recovered, then there are other provisions like Section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions of Section 42 of NDPS Act mandatory and not optional as stated by this Court in the case of Karnail Singh (supra).

24. Thus, the present appeal merits grant of relief to the accused. We accordingly set aside the judgment of the High Court as well as the Trial Court and acquit the accused of an offence under Section 15 of NDPS Act. We direct the accused to be set at liberty forthwith, if not required in any other case.

25. Before we part with this file, we consider it the duty of the Court to direct the Director General of Police concerned of all the States to issue appropriate instructions directing the investigating officers to duly comply with the provisions of Section 42 of NDPS Act at the appropriates Sage to avoid such acquittals. Compliance to the provisions of Section 42 being mandatory, it is the incumbent duty of every investigating officer to comply with the same in true substance and spirit in consonance with the law stated by this Court in the case of Karnail Singh (supra).

26. The Registry shall send a copy of this judgment to all the Director Generals of Police of the States for immediate compliance.

27. The appeal is accordingly allowed.

………………………………….J. (Swatanter Kumar)

………………………………….J. (Madan B. Lokur)

New Delhi,

December 13, 2012

CONSTITUTION OF SPECIAL COURT- COGNISANCE AND BAIL UNDER NDPS ACT 1985

36. Constitution of Special Courts—

(1)The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification.
(2)A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.
Explanation: In this sub-section, “High Court” means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge.
(3)A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.

36A. Offences triable by Special Courts.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),–
(a)all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b)where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under subsection (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers–
(i)when such person is forwarded to him as aforesaid; or
(ii)upon or at any time before the expiry of the period of detention authorised by him,
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c)the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;
(d)a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under section 36.

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”:

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.

36B. Appeal and Revision.—

The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.

36C. Application of Code to proceedings before a Special Court.—

Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

36D. Transitional Provisions.—

(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), which is triable by a Special Court shall, until a Special Court is constituted under section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session.
(2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), are pending before a Court of Session, then, notwithstanding anything contained in sub-section (1), such proceeding shall be heard and disposed of by the Court of Session:
Provided that nothing contained in this sub-section shall affect the power of the High Court under section 407 of the Code of Criminal Procedure, 1973 (2 of 1974) to transfer any case or class of cases taken cognizance by a Court of Session under sub-section (1).

37. Offences to be cognizable and non-bailable.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a)every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless–
(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

Dadu alias Tulsidas Versus State of Maharashtra[ ALL SC 2000 OCTOBER]

KEYWORDS:-PAROLE-NDPS

c

DATE:-12-10-2000

Parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of S. 32-A of the Act.

AIR 2000 SC 3203 : (2000) 8 SCC 437 : JT 2000 (1) Suppl. SC 449 : (2000) 6 SCALE 746 : (2000) CriLJ SC 4619

(SUPREME COURT OF INDIA)

Dadu alias Tulsidas Appellant
Versus
State of Maharashtra Respondent

(Before: K. T. Thomas, R. P. Sethi And S. N. Variava, JJ.)

Writ Petition (Cri.) No. 169 of 1995 with Writ Petition (Cri.) No. 243 of 1999, Decided on: 12-10-2000.

Narcotic Drugs And Psychotropic Substances Act, 1985—Section 32-A—Parole—Grant of—Power of State—Parole does not amount to suspension, remission or commutation of sentence—Therefore Section 32-A cannot be said to be a bar on power of State to grant parole.

“Parole” means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually been in jail serving part of sentence.

Parole therefore did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32-A of the Act. Notwithstanding the provisions of the offending Section 32-A, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions.

Narcotic Drugs And Psychotropic Substances Act, 1985—Section 32-A—Provisions under—Constitutional validity—Section 32-A is unconstitutional to the extent it takes away right of Appellate Court to suspend sentence of convict—However, it is valid to the extent it takes away right of executive to suspend, remit and commute sentence.

Counsel for the Parties:

Harish N. Salve, Solicitor General (Ms. Anu Mohla) Advocate (SCLSC), Aman Hingorani, Ms. Priya Hingorani, Ms. Reema Bhandari, Ashok Bhan, Ms. Sunita Sharma, D. S. Mehra, S. S. Shinde, S. V. Deshpande, Advocates with him, for the Appearing Parties.

Judgement

Sethi, J—The Constitutional validity of Section 32-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) is under challenge in these petitions filed by the convicts of the offences under the Act. The section is alleged to be arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India which creates unreasonable distinction between the prisoners convicted under the Act and the prisoners convicted for the offences punishable under various other statutes. It is submitted that the Legislature is not competent to take away, by statutory prohibition, the judicial function of the Court in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended or not. The section is further assailed on the ground that it has negated the statutory provisions of Sections 389, 432 and 433 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended, remitted or commuted or not and also under what circumstances, restrictions or limitations on the suspension of sentences or the grant of bail could be passed. It is further contended that the Legislature cannot make relevant considerations irrelevant or deprive the Courts of their legitimate jurisdiction to exercise the discretion. It is argued that taking away the judicial power of the appellate Court to suspend the sentence despite the appeal meriting admission, renders the substantive right of appeal illusory and ineffective. According to one of the petitioners, the prohibition of suspension precludes the Executive from granting parole to a convict who is otherwise entitled to it under the prevalent statutes, jail manual or Government instructions issued in that behalf.

2. The petitioner in W.P. No. 169/99 was arrested and upon conviction under S. 21 of the Act sentenced to undergo imprisonment for 10 years. He claims to have already undergone sentence for more than 7 years. He could not claim parole presumably under the impression that S. 32-A of the Act was a bar for the State to grant it. Though the petitioner has referred to Maharashtra Jail Manual, particularly Chapter XXXVIII providing various kinds of remissions and authorising the grant of parole yet nothing is on the record to show as to whether he in fact applied for parole or not.

3. Petitioner in W.P. 243 of 1999, after trial was convicted under the Act and the bail application filed by him along with appeal presented in the High Court was dismissed as not pressed in view of the judgment of this Court in Maktool Singh v. State of Punjab JT 1999 (2) SC 176.

4. The vires of the section have been defended by the Union of India on the ground that as the Parliament has jurisdiction to enact the law pertaining to Narcotic Drugs and Psychotropic Substances Act, reasonable restrictions can be imposed upon the right of the convict to file appeal and seek release, remission or commutation. The Act is intended to curb the drug addiction and trafficking which is termed to be eating into the vitals of the economy of the country. The illicit money generated by drug trafficking is being used for illicit activities including encouragement of terrorism. Anti-drug justice has been claimed to be a criminal dimension of social justice. It is submitted that statutory control over narcotic drugs in India was being generally exercised through certain Central enactments, though some of the States had also enacted certain statutes to deal with illicit traffic in drugs. Reference is made to the Opium Act and the Dangerous Drugs Act etc. In the absence of comprehensive law to effectively control psychotropic substances in the manner envisaged by the International Convention of Psychotropic Substances, 1971, a necessity was felt to enact some comprehensive legislation on the subject. With a view to meet the social challenge of great dimensions, the Parliament enacted the Act to consolidate and amend the existing provisions relating to control over drug abuse and to provide for enhanced penalties under the Act. The Act provides enhanced and stringent penalties. The offending section is claimed to be not violative of Arts. 14, 19 and 21 of the Constitution of India. To fulfil the international obligations and to achieve the objectives of curbing the menace of illegal trafficking, the section was enacted not only to take away the power of the Executive under S. 433 of the Code but also the power under the Code to suspend, remit or commute the sentences passed under the Act. The convicts under the Act are stated to be a class in themselves justifying the discrimination without offending guarantee of equality enshrined in the Constitution. To support the constitutional validity of the section, the respondents have also relied upon the Lok Sabha debates on the subject.

5. Before dealing with the main issue regarding the validity of S. 32-A, a side issue, projected in Writ Petition No. 169, is required to be dealt with. The writ petition appears to be based upon the misconception of the provisions of law and in ignorance to the various pronouncements of this Court.

6. Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government Orders. “Parole” means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually been in jail serving part of sentence.

7. Grant of parole is essentially an Executive function to be exercised within the limits prescribed in that behalf. It would not be open to the Court to reduce the period of detention by admitting a detenu or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it. Dealing with the concept of parole and its effect on period of detention in a preventive detention matter, this Court in Poonam Lata v. M. L. Wadhawan (1987) 3 SCC 347 held:

“There is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically ‘parole’ is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement, but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. (See The Oxford Companion to Law, edited by Walker, 1980 Edn., p. 931; Black’s Law Dictionary, 5th Edn., p. 1006; Jowitt’s Dictionary of English Law, 2nd Edn., Vol. 2, p. 1320; Kenny’s Outlines of Criminal Law, 17th Edn., pp. 574-76; the English Sentencing System by Sir Rupert Cross at pp. 31-34; 87 et seq; American Jurisprudence, 2nd Edn., Vol. 59, pp. 53-61; Corpus Juris Secundum, Vol. 67; Probation and Parole, Legal and Social Dimensions by Louis P. Carney). It follows from these authorities that parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of mishebaviour.”

8. This position was again reiterated in State of Haryana v. Mohinder Singh (2000) 3 SCC 394.

9. The Constitution Bench of this Court in Sunil Fulchand Shah v. Union of India (2000) 3 SCC 409 considered the distinction between bail and parole in the context of reckoning the period which a detenu has to undergo in prison and held:

“Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘bail’ is surety. In Halsbury’s Laws of England, 4th Edn., Vol. 11, para 166, the following observation succinctly brings out the effect of bail:

The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

‘Parole,’ however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of “parole” is:

The Concise Oxford Dictionary – (New Edition)

“The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour.”

Black’s Law Dictionary – (6th Edition)

“Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles paroles to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.”

According to the Law Lexicon, “Parole” has been defined as:

“A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.”

According to Words and Phrases:

“Parole” ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v. Murphy (135 NE 2d 567, 571, 1 NY 2d 367, 153 NYS 2d 21, 26).

‘Parole’ does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen (Ky, 255 SW 2d 1000, 1002).

A ‘parole’ is not a ‘suspension of sentence,’ but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the Court. Jenkins v. Madigan (CA Ind, 211 F 2d 904, 906).

A ‘parole’ does not suspend or curtail the sentence originally imposed by the Court as contrasted with a ‘commutation of sentence’ which actually modifies it.”

10. Again in State of Haryana v. Nauratta Singh (2000) 3 SCC 514, it was held by this Court as under:

“Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.”

11. It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of S. 32-A of the Act. Notwithstanding the provisions of the offending S. 32-A, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions. The Writ Petition No. 169 of 1999 apparently appears to be misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with Jail Manual applicable in the matter.

12. We will now deal with the crux of the matter relating to the constitutional validity of S. 32-A in the light of the challenge thrown to it. Section 32-A of the Act reads:

“32-A. No suspension, remission or commutation in any sentence awarded under this Act.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of S. 33, no sentence awarded under this Act (other than S. 27) shall be suspended or remitted or commuted.”

13. A perusal of the section would indicate that it deals with three different matters, namely, suspension, remission and commutation of the sentences. Prohibition contained in the section is referable to Ss. 389, 432 and 433 of the Code. Section 432 of the Code provides that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced in the manner and according to the procedure prescribed therein. Section 433 empowers the appropriate Government to commute:

“(a) a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine.”

14. However, Section 389 of the Code empowers an appellate Court to suspend the sentence pending the appeal and release the appellant on bail. Section 32-A of the Act, therefore, takes away the powers both of the appellate Court and the State Executive in the matter of suspending, remitting and commuting the sentence of a person convicted under the Act other than for an offence under S. 27 of the Act. This Court in Maktool Singh’s case (supra) held that S. 32-A of the Act was a complete bar for the appellate Court to suspend a sentence passed on persons convicted of offences under the Act (except under S. 27) either during the pendency of any appeal or otherwise. It has an overriding effect with regard to the powers of suspension, commutation and remission provided under the Code. After referring to some conflicting judgments of the High Courts, this Court concluded:

“The upshot of the above discussion is that S. 32-A of the Act has taken away the powers of the Court to suspend a sentence passed on persons convicted of offences under the Act (except S. 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Ss. 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32-A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code.”

15. The restriction imposed under the offending section, upon the Executive are claimed to be for a reasonable purpose and object sought to be achieved by the Act. Such exclusion cannot be held unconstitutional, on account of its not being absolute in view of the constitutional powers conferred upon the Executive. Articles 72 and 161 of the Constitution empowers President and the the Governor of a State to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the Executive power of the Union and State exists. For the exercise of aforesaid constitutional powers circulars are stated to have been issued by the appropriate Governments. It is further submitted that the circulars prescribe limitations both as regards the prisoners who are eligible and those who have been excluded. The restriction imposed upon the Executive, under the section, appears to be for a reasonable purpose and object sought to be achieved by the section. While moving the Amendment Bill, which included S. 32-A, in the Parliament on 16th December, 1988, the Minister of State in Department of Revenue in the Ministry of Finance explained to the Parliament that the country had been facing the problem of transit traffic in illicit drugs which had been escalated in the recent past. The spill over from such traffic had been causing problems of abuse and addiction. The Government was concerned with the developing drug situation for which a number of legislative, administrative and preventive measures had been taken resulting in checking the transit traffic to a considerable extent. However, increased internal drug traffic, diversion of opium from illicit growing areas and attempts of illicit manufacture of drugs within the country threatened to undermine the effects of the counter measures taken. Keeping in mind the magnitude of the threat from drug trafficking from the Golden Crescent region comprising Pakistan, Afghanistan and Iran and the Golden Triangle region comprising Burma, Thailand and Laos and having regard to the internal situation, a 14 point directive was stated to have been issued by the then Prime Minister on 4th April, 1988, as a new initiative to combat drug trafficking and drug abuse. Keeping in mind the working of the 1985 Act, the Cabinet Sub-Committee recommended that the Act be suitably amended, inter alia:

“(i) to provide for the constitution of a fund for control of drug abuse and its governing body. The fund is to be financed by such amounts as may be provided by the Parliament, the sale proceeds of any property forfeited under the Act and any grants that may be made by any person or institution;

(ii) to provide for death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs;

(iii) to provide that no sentence awarded under the Act, other than S. 27, should be suspended, remitted or commuted;

(iv) to provide for constitution of Special Courts;

(v) to provide that every offence punishable under this Act shall be cognizable and non-bailable;

(vi) to provide immunity from prosecution to the addicts volunteering for treatment for deaddiction or detoxification once in their lifetime;

(vii) to bring certain substances which are neither narcotic drugs nor psychotropic substances but are used in the manufacture or production of these drugs or substances, under the ambit of the Act. Such controlled substances would be regulated by issue or order;

(viii) violation of the provisions relating to the controlled substances would be liable for punishment with rigorous imprisonment for a term which may extend to 10 years and fine which may extend to ` 1 lakh;

(ix) financing illicit traffic and harbouring drug offenders would be offences liable to punishment at the same level as per drug traffic offences.”

The distinction of the convicts under the Act and under other statutes, in so far as it relates to the exercise of the Executive powers under Ss. 432 and 433 of the Code is concerned, cannot be termed to either arbitrary or discriminatory being violative of Art. 14 of the Constitution. Such deprivation of the executive can also not be stretched to hold that the right to life of a person has been taken away except, according to the procedure established by law. It is not contended on behalf of the petitioners that the procedure prescribed under the Act for holding the trial is not reasonable, fair and just. The offending section, in so far as it relates to the Executive in the matter of suspension, remission and commutation of sentence, after conviction, does not, in any way, encroach upon the personal liberty of the convict tried fairly and sentenced under the Act. The procedure prescribed for holding the trial under the Act cannot be termed to be arbitrary, whimsical or fanciful. There is, therefore, no vice of unconstitutionality in the section in so far as it takes away the powers of the Executive conferred upon it under Ss. 432 and 433 of the Code, to suspend, remit or commute the sentence of a convict under the Act.

16. Learned counsel appearing for the parties were more concerned with the adverse effect of the section on the powers of the judiciary. Impliedly conceding that the section was valid so far as it pertained to the appropriate Government, it was argued that the Legislature is not competent to take away the judicial powers of the Court by statutory prohibition as is shown to have been done vide the impugned section. Awarding sentence, upon conviction, is concededly a judicial function to be discharged by the Courts of law established in the country. It is always a matter of judicial discretion, however, subject to any mandatory minimum sentence prescribed by the law. The award of sentence by a Criminal Court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judicial function embracing within its ambit the power to suspend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal.

17. Not providing at least one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the Court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Art. 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits at least in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the Court cannot be denuded by Executive or judicial process.

18. This Court in Bhagwan Rama Shinde Gosai v. State of Gujarat, AIR 1999 SC 1859 held that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. The suspension of the sentence by the appellate Court has, however, to be within the parameters of the law prescribed by the Legislature or spelt out by the Courts by judicial pronouncements. The exercise of judicial discretion on well recognised principles is the safest possible safeguards for the accused which is at the very core of criminal law administered in India. The Legislature cannot, therefore, make law to deprive the Courts of their legitimate jurisdiction conferred under the procedure established by law.

19. Thomas M. Cooley in his “Treatise on the Constitutional limitations” 8th Edition observed that if the Legislature cannot thus indirectly control the action of the Courts by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry. In Denny v. Mattoon (2 Allen 361), it was stated:

“If, for example, the practical operation of a statute is to determine adversary suits pending between party and party, by substituting in place of the well settled rules of law the arbitrary will of the legislature, and thereby controlling the action of the Tribunal before which the suits are pending, no one can doubt that it would be an unauthorised act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary. It is exclusive province of Courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process. The legislature have no power to interfere with this jurisdiction in such manner as to change the decision of cases pending before Courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been once judicially settled. The right of a review, or to try a new facts which have been determined by a verdict or decree, depends on fixed and well settled principles, which it is the duty of the Court to apply in the exercise of a sound judgment and discretion. These cannot be regulated or governed by legislative action.”

20. Cooley further opined that forfeiture of rights and property cannot be adjudged by legislative act, confiscations without a judicial hearing after due notice would be void as not being due process of law. Rights of the parties, without the authority of passing consequential or interim orders in the interest of justice, would not be a substantive one.

21. Offending section is stated to have been enacted in discharge of the international obligations as claimed by the concerned Minister in the Parliament. This submission also appears to be without any substance. Countries, parties to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, in the 6th Plenary Meeting held on 19th December, 1988 resolved to adopt means and measures to curb the rising trend in the illicit production of demand for and traffic in narcotic drugs and psychotropic substances which posed a serious threat to the health and welfare of the human beings and adversely affected the economic, cultural and political foundations of the society. The member countries, inter alia agreed to adopt such measures as may be necessary to establish as criminal offences in its domestic law when committed intentionally:

“(a) (i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention;

ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and 1961 Convention as amended;

iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above;

iv) The manufacture, transport, or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances;

v) The organisation, management or financing of any of the offences enumerated in (i), (ii), (iii) or (iv) above;

(b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with sub-paragraph (a) of this paragraph, or from an act, of participation in such offence or offences, for the purpose of concealing or disguising the illicit (sic) original of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions,

iii) The concealment or disguise of the true nature, source, location, disposition, movement rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with paragraph (a) of this paragraph or from an act of participation in such an offence or offences;

It was further agreed that subject to the constitutional principles and the basic concept of its legal system each country shall provide for:

“(i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with sub-paragraph (a) of this paragraph or from an act of participation in such offence or offences;

(ii) The possession of equipment or materials or substances listed in Table I and Table II, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances;

(iii) Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly;

(iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, facilitating and counselling the commission of any of the offences established in accordance with this article.”

22. The parties to the Convention further resolved to provide in addition to conviction and punishment for an offence that the offender shall undergo measures such as treatment, education, after care, rehabilitation or social re-integration. It was further agreed:

“The parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences.

The parties shall ensure that their Courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph 1 of this article and the circumstances enumerated in paragraph 5 of this article when considering the eventuality of early release or parole of persons convicted of such offences.”

23. A perusal of the agreement of the Convention to which India is claimed to be a party, clearly and unambiguously show that the Court’s jurisdiction with respect to the offences relating to narcotic drugs and psychotropic substances was never intended to be ousted, taken away or curtailed. The Declaration was made, subject to “constitutional principles and the basic concepts of its legal system prevalent in the polity of a member country”. The international Agreement emphasised that the Courts of the member countries shall always bear in mind the serious nature of offences sought to be tackled by the Declaration while considering the eventuality of early release or partly of persons convicted of such offences. There was no International Agreement to put a blanket ban on the power of the Court to suspend the sentence awarded to a criminal under the Act notwithstanding the constitutional principles and basic concepts of its legal system. It cannot be denied that judicial review in our country is the heart and soul of our constitutional scheme. The judiciary is constituted the ultimate interpreter of the Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the Government, ensuring that action of any branch does not transgress its limits. A Constitution Bench of this Court in S. P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 held that “it is also a basic principle of the Rule of Law which permeates very provision of the Constitution and which forms its very core and essence that the exercise of power by the Executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the Executive and other authorities. This function is discharged by the judiciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the Rule of Law would become a teasing illusion and a promise of unreality”. Again in S. S. Bola v. B. D. Sardana, AIR 1997 SC 3127 it was reiterated that judicial review is the basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people’s sovereign power for their protection and establishment of egalitarian social order under the Rule of Law. The judicial review was, therefore, held to be an integral part of the Constitution as its basic structure. Similarly, the filing of an appeal, its adjudication and passing of appropriate interim orders is concededly a part of the legal system prevalent in our country.

24. In Ram Charan v. Union of India, 1991 (9) LCD 160, the Allahabad High Court while dealing with the question of the constitutional validity of Section 32A found that as the Section leaves no discretion to the Court in the matter of deciding, as to whether, after conviction the sentence deserves to be suspended or not without providing any guidelines regarding the early disposal of the appeal within a specified period, it suffers from arbitrariness and thus violative of mandate of Articles 14 and 21 of the Constitution. In the absence of right of suspending a sentence, the right of appeal conferred upon accused was termed to be a right of infructuous appeal. However, Gujarat High Court in Ishwarsingh M. Rajput v. State of Gujarat, (1990) 2 Guj LR 1365:1991 (2) Crimes 160, while dealing with the case relating to grant of parole to a convict under the Act found that Section 32-A was Constitutionally valid. It was held:

“Further, the classification between the prisoners convicted under the Narcotics Act and the prisoners convicted under any other law, including the Indian Penal Code is reasonable one, it is with specific object to curb deterrently habit forming, booming and paying (beyond imagination) nefarious illegal activity in drug trafficking. Prisoners convicted under the Narcotics Act are class by themselves. Their activities affect the entire society and may, in some cases, be a death-blow to the persons, who become addicts. It is much more paying as it brings unimaginable easy riches. In this view of the matter, the temptation to the prisoner is too great to resist himself from indulging in same type of activity during the period, when he is temporarily released. In most of the cases, it would be difficult for him to leave that activity as it would not be easy for the prisoner to come out of the clutches of the gang, which operates in nefarious illegal activities. Hence, it cannot be said that Section 32-A violates Article 14 of the Constitution on the ground that it makes unreasonable distinction between a prisioner convicted under the Narcotics Act and a prisoner convicted for any other offences.”

25. Judged from any angle the Section insofar as it completely debars the appellate Courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charan’s case (supra) has correctly interpreted the law relating to the constitutional validity of the Section and the judgment of Gujarat High Court in Ishwarsingh M. Rajput’s case cannot be held to be good law.

26. Despite holding that Section 32-A is unconstitutional to the extent it affects the functioning of the criminal Courts in the country, we are not declaring the whole of the section as unconstitutional in view of our finding that the Section, insofar as it takes away the right of the Executive to suspend, remit and commute the sentence, is valid and intra vires of the Constitution. The Declaration of Section 32-A to be unconstitutional, insofar as it affects the functioning of the Courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending section being distinct and severable.

27. Holding Section 32-A as void insofar as it takes away the right of the Courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the Courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Section 37 of the Act provides:

“37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail.

28. This Court in Union of India v. Ram Samujh, (1999) 9 SCC 429 held that the jurisdiction of the Court to grant bail is circumscribed by the aforesaid section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which convicted and he is not likely to commit any offence while on bail and during the period of suspension of the sentence. The Court further held:

“The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:

“Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985 the need to amend the law to further strengthen it, has been felt”.

                                                                                (Emphasis supplied)

It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Dilier v. Chief Secretary, Union Territory of Goa, (1990) 1 SCC 95 as under (SCC p. 104, para 24):

“24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.”

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail,are satisfied.”

29. Under the circumstances the writ petitions are disposed of by holding that (1) Section 32-A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment.

30. The petitioner in Writ Petition No. 169/99 shall be at liberty to apply for parole and his prayer be considered and disposed of in accordance with the statutory provisions, if any, Jail Manual or Government Instructions without implying Section 32-A of the Act as a bar for consideration of the prayer. Similarly petitioner in Writ Petition No. 243/99 is at liberty to move the High Court for suspension of sentence awarded to him under the Act. As and when any such application is filed, the same shall be disposed of in accordance with law and keeping in view the limitations prescribed under Section 37 of the Act and the law laid down by this Court.

Arif Khan @ Agha Khan Vs. State of Uttarakhand[ ALL SC 2018 APRIL]

KEYWORDS:-NDPS-

c

DATE-April 27, 2018

Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law

ACTS:- Section 20 & 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985

SUPREME COURT OF INDIA

Arif Khan @ Agha Khan Vs. State of Uttarakhand

[Criminal Appeal No. 273 of 2007]

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused against the final judgment and order dated 26.06.2006 passed by the High Court of Uttaranchal at Nainital in Criminal Appeal No.368 of 2004 whereby the High Court confirmed the judgment and order dated 09.11.2004 passed by the Additional Sessions Judge, Fast Track Court II, Udham Singh Nagar in Special Sessions Trial No.20 of 2003 by which the appellant-accused was convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-.

2. In order to appreciate the issue involved in the appeal, few facts need to be mentioned hereinbelow.

3. In short, the case of the prosecution is as under:

4. On 23.11.2002, a secret information was received in P.S. Kichha from one unknown informant that one person is travelling in a roadways bus carrying with him some contraband articles. The secret informant also gave information that the person concerned would get down near the railway crossing from the Bus and would approach towards a place called “Chowki Pul Bhatta” along with contraband article.

5. The raiding party headed by SHO-Harish Mehra, who was on duty at P.S. Kichha along with the police officials on duty accordingly left for the place informed by the informant.

6. On reaching the informed place, the raiding party waited for sometime and thereafter spotted the person concerned, who was approaching towards the place informed to them. The raiding party intercepted the person concerned.

7. Thereafter, the accused was asked by the police personnel of raiding party as to whether he is in possession of contraband “Charas”. The accused admitted that he is in possession of “Charas”. On apprehending the accused, he was informed by the police personnel that he has a legal right to be searched in the presence of a Gazetted Officer or a Magistrate to which the accused replied that he has a faith on the raiding police party and consented to be searched by them.

8. The raiding police party accordingly obtained his consent in writing to be searched by the raiding police party. The raiding police party then searched the accused which resulted in seizure of “Charas” weighing around 2.5 K.G. in quantity from his body.

9. It is this incident, which gave rise to prosecution of the appellant (accused) for commission of the offence punishable under Section 20 of the NDPS Act in Special Sessions Trial No.20/2003. After investigation, the prosecution filed the charge sheet (Ex- 11) against the appellant 5 and examined 5 witnesses to bring home the charge levelled against the appellant.

10. By order dated 09.11.2004, the Additional Sessions Judge/ Fast Track Court II, Udham Singh Nagar held that the prosecution was able to prove the case beyond reasonable doubt against the appellant and accordingly convicted him for the offences punishable under Section 20 of the NDPS Act and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-.

11. The accused felt aggrieved and filed appeal in the High Court at Nainital. By impugned judgment, the High Court dismissed the appeal and upheld the order of Additional Sessions Judge, which has given rise to filing of the present appeal by the accused by way of special leave in this Court.

12. Heard Mr. J.C. Gupta, learned senior counsel for the appellant (accused) and Mr. Ashutosh Kumar Sharma, learned counsel for the respondent-State.

13. Learned counsel for the appellant (accused) while assailing the legality and correctness of the impugned judgment contended that both the Courts below erred in holding the appellant guilty of commission of the offence in question and thus erred in convicting him for the alleged offence under the NDPS Act.

14. Learned counsel contended that the prosecution has failed to ensure mandatory compliance of Section 50 of the NDPS Act inasmuch as the alleged recovery/search of the contraband (Charas) made by the raiding police party from the appellant’s body was not done in accordance with 7 the procedure prescribed under Section 50 of the NDPS Act which according to learned counsel is mandatory as held by this Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2011(1) SCC 609.

15. Learned counsel urged that the search/recovery of the alleged contraband from the appellant ought to have been made only in the presence of either a Magistrate or a Gazetted Officer only.

16. It was urged that since admittedly the prosecution did not make the search/recovery from the appellant in the presence of a Magistrate or a Gazetted Officer and, therefore, the alleged recovery of the contraband “Charas” from the appellant is rendered illegal being in contravention of requirements of Section 50 of the NDPS Act thereby entitling the appellant for an acquittal from the charges.

17. In reply, learned counsel appearing for the respondent (State) supported the reasoning and conclusion arrived at in the impugned judgment and, therefore, prayed for upholding of the impugned judgment.

18. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned judgment acquit the appellant from the charges in question.

19. The short question which arises for consideration in the appeal is whether the search/recovery made by the police officials from the appellant (accused) of the alleged contraband (charas) can be held to be in accordance with the  procedure prescribed under Section 50 of the NDPS Act.

20. In other words, the question that arises for consideration in this appeal is whether the prosecution was able to prove that the procedure prescribed under Section 50 of the NDPS Act was followed by the Police Officials in letter and spirit while making the search and recovery of the contraband “Charas” from the appellant (accused).

21. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev 10 Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).

22. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

23. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392)

24. Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure 12 prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband “Charas” from the appellant and, if so, whether it was done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband “Charas” from the appellant in conformity with the requirements of Section 50.

25. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer.

26. It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling  him about his legal right available to him under Section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.

27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband “Charas” does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.

28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “Charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “Charas” from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “Charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.

29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.

30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.

31. In the light of the foregoing discussion, the appeal succeeds and is allowed. Impugned judgment is set aside. As a consequence thereof, the appellant’s conviction is set aside and he is acquitted of the charges in question.

………………………………..J (R.K. AGRAWAL)

…………………………………..J. (ABHAY MANOHAR SAPRE)

New Delhi,

April 27, 2018

NDPS ACT JUDGMENTS [SUPREME COURT OF INDIA]

LAW LIBRARY

supreme court of india 1

UPDATED UP TO 2018

Arif Khan @ Agha Khan Vs. State of Uttarakhand [2018]
Dadu @ Tulsidas Vs. State of Maharashtra[2000]
Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra
Durgo Bai & Anr Vs. State of Punjab
E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau …
Harjit Singh Vs. State of Punjab
Hussain Vs. Union of India
Naresh Kumar vs State of HP…
Nikesh Tarachand Shah Vs. Union of India
Noor Aga Vs. State of Punjab & ANR.
Pradeep Bachhar Vs. State of Chhattisgarh
Radhey Shyam Vs. Union of India
Rajiv Dawar Vs. High Court of Delhi
Sami Ullaha Vs. Superintendent, Narcotic Central Bureau
State of Himachal Pradesh Vs. Trilok Chand
State of Punjab Vs. Balbir Singh
State of Rajasthan Vs. Jag Raj Singh @ Hansa
State of Uttaranchal Vs. Rajesh Kumar Gupta
Sukhdev Singh Vs. State of Haryana
Suresh Vs. State of Madhya Pradesh
Tara Singh Vs. Union of India
Thana Singh Vs. Central Bureau of Narcotics .
The State of Punjab Vs. Baldev Singh
Union of India Vs. Leen Martin
Union of India Vs. Meera Mohideen
Union of India Vs. Sheo Shambhu Giri

 

PROCEDURAL SAFEGUARDS UNDER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985[NDPS]

THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

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 this Act, 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 or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed.

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the paramilitary forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is 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 such 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 arrest without warrant or authorisation.—

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or 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 in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation 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.

43. Power of seizure and arrest in public place.—

Any officer of any of the departments mentioned in section 42 may —
(a)seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

(b)detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation:— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

44. Power of entry, search, seizure and arrest in offences relating to coca plant, opium poppy and cannabis plant.—

The provisions of sections 41, 42 and 43, shall so far as may be, apply in relation to the offences punishable under Chapter IV and relating to coca plant, the opium poppy or cannabis plant and for this purpose references in those sections to narcotic drugs, or psychotropic substance, or controlled substance, shall be construed as including references to coca plant, the opium poppy and cannabis plant.

45.Procedure where seizure of goods liable to confiscation not practicable.—

Where it is not practicable to size any goods (including standing crop) which are liable to confiscation under this Act, any officer duly authorised under section 42 may serve on the owner or person in possession of the goods, an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer.

46. Duty of land holder to give information of illegal cultivation.—

Every holder of land shall give immediate information to any officer of the police or of any of the departments mentioned in section 42 of all the opium poppy, cannabis plant or coca plant which may be illegally cultivated within his land and every such holder of land who knowingly neglects to give such information, shall be liable to punishment.

47. Duty of certain officers to give information of illegal cultivation.—

Every officer of the Government and every panch, sarpanch and other village officer of whatever description shall give immediate information to any officer of the Police or of any of the departments mentioned in section 42 when it may come to his knowledge that any land has been illegally cultivated with the opium poppy, cannabis plant or coca plant, and every such officer of the Government, panch, sarpanch and other village officer who neglects to give such information, shall be liable to punishment.

48. Power of attachment of crop illegally cultivated.—

Any Metropolitan Magistrate, Judicial Magistrate of the first class or any Magistrate specially empowered in this behalf by the State Government or any officer of a gazetted rank empowered under section 42 may order attachment of any opium poppy, cannabis plant or coca plant which he has reason to believe to have been illegally cultivated and while doing so may pass such order (including an order to destroy the crop) as he thinks fit.

49. Power to stop and search conveyance.—

Any officer authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance or controlled substance, in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and —
(a)rummage and search the conveyance or part thereof;
(b)examine and search any goods on the animal or in the conveyance;
(c)if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon.

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 shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).
(3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

50A. Power to undertake controlled delivery.—

The Director General of Narcotics Control Bureau constituted under sub-section (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to—
(a)any destination in India;
(b)a foreign country, in consultation with the competent authority of such foreign country to which such consignment is destined, in such manner as may be prescribed.

51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.—

The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.

52. Disposal of persons arrested and articles seized.—

(1) Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to–
(a)the officer-in-charge of the nearest police station, or
(b)the officer empowered under section 53.
(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article.

52A. Disposal of seized narcotic drugs and psychotropic substances.—

(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—

(a)certifying the correctness of the inventory so prepared; or
(b)taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or
(c)allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.

53. Power to invest officers of certain departments with powers of an officer-in-charge of a. police station.—

(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.
(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

53A. Relevancy of statements under certain circumstances.—

(1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,—
(a)when the person who made the statement is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or

(b)when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.

(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act or the rules or orders made thereunder, other than a proceeding before a court, as they apply in relation to a proceeding before a court.

54. Presumption from possession of illicit articles.—

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of—
(a)any narcotic drug or psychotropic substance or controlled substance;
(b)any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c)any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d)any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured,
for the possession of which he fails to account satisfactorily.

55. Police to take charge of articles seized and delivered.—

An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

56.Obligation of officers to assist each other.—

All officers of the several departments mentioned in section 42 shall, upon notice given or request made, be legally bound to assist each other in carrying out the provisions of this Act.

57. Report of arrest and seizure.—

Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

57A. Report of seizure of property of the person arrested by the notified officer.—

Whenever any officer notified under section 53 makes an arrest or seizure under this Act, and the provisions of Chapter VA apply to any person involved in the case of such arrest or seizure, the officer shall make a report of the illegally acquired properties of such person to the jurisdictional competent authority within ninety days of the arrest or seizure.

58 . Punishment for vexatious entry, search, seizure or arrest.—

(1) Any person empowered under section 42 or section 43 or section 44 who–
(a)without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place;
(b)vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under this Act, or of seizing any document or other article liable to be seized under section 42, section 43 or section 44; or
(c)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.
(2) Any person willfully and maliciously giving false information and so causing 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.

59. Failure of officer in duty or his connivance at the contravention of the provisions of this Act.—

(1) Any officer, on whom any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraws himself from the duties of his office shall, unless he has obtained the express written permission of his official superior or has other lawful excuse for so doing, be punishable with imprisonment for a term which may extend to one year or with fine or with both.
(2) Any officer on whom any duty has been imposed by or under this Act or any person who has been given the custody of–
(a)any addict; or
(b)any other person who has been charged with an offence under this Act,
and who willfully aids in, or connives at, the contravention of any provision of this Act or any rule or order made there under, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Explanation:— For the purposes of this sub-section, the expression “officer” includes any person employed in a hospital or institution maintained or recognised by the Government or a local authority under section 64A for providing de-addiction treatment.
(3) No court shall take cognizance of any offence under sub-section (1) or sub-section (2) except on a complaint in writing made with the previous sanction of the Central Government, or as the case may be, the State Government.

60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.

(1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.
(2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.
(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.

61. Confiscation of goods used for concealing illicit drugs or substances.—

Any goods used for concealing any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under this Act shall also be liable to confiscation.
Explanation: In this section “goods” does not include conveyance as a means of transport.

62.Confiscation of sale proceeds of illicit drugs or substances. —

Where any narcotic drug, psychotropic substance or controlled substance is sold by a person having knowledge or reason to believe that the drug or substance is liable to confiscation under this Act the sale proceeds thereof shall also be liable to confiscation.

63. Procedure in making confiscations.—

(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly.
(2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly:
Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim:
Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, controlled substance, the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.

64.Power to tender immunity from prosecution.—

(1) The Central Government or the State Government may, if it is of opinion (the reasons for such opinion being recorded in writing) that with a view to obtaining the evidence of any person appearing to have been directly or indirectly concerned in or privy to the contravention of any of the provisions of this Act or of any rule or order made thereunder it is necessary or expedient so to do, tender to such person immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act or State Act, as the case may be, for the time being in force, on condition of his making a full and true disclosure of the whole circumstances relating to such contravention.
(2) A tender of immunity made to, and accepted by, the person concerned, shall, to the extent to which the immunity extends, render him immune from prosecution for any offence in respect of which the tender was made.
(3) If it appears to the Central Government or, as the case may be, the State Government, that any person to whom immunity has been tendered under this section has not complied with the conditions on which the tender was made or is willfully concealing anything or is giving false evidence, the Central Government or, as the case may be, the State Government, may record a finding to that effect and thereupon the immunity shall be deemed to have been withdrawn and such person may be tried for the offence in respect of which the tender of immunity was made or for any other offence of which he appears to have been guilty in connection with the same matter.

64A. Immunity from prosecution to addicts volunteering for treatment.—

Any addict, who is charged with an offence punishable under section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances:
Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.

65. Power to make rules regulating disposal of confiscated articles and rewards.— Rep

66. Presumption as to documents in certain cases.—

Where any document—

(i)is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or

(ii)has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed by the Central Government) in the course of investigation of any offence under this Act alleged to have been committed by a person, and such document is tendered in any prosecution under this Act in evidence against him, or against him and any other person who is tried jointly with him, the court shall—

(a)presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person’s handwriting; and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b)admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;

(c)in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document.

67. Power to call for information, etc.—

Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,–
(a)call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b)require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c)examine any person acquainted with the facts and circumstances of the case.

68. Information as to commission of offences.—

No officer acting in exercise of powers vested in him under any provision of this Act or any rule or order made thereunder shall be compelled to say whence he got any information as to the commission of any offence.

Devider

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