Brief Facts
- An intelligence officer had received information about accused No. 4 /appellant carrying narcotics in an auto-rickshaw. A raiding party attempted to intercept the auto-rickshaw, which fled, leading to a chase and the discovery of abandoned narcotics. Subsequently, narcotics were found in appellant’s house, leading to the arrest of appellant (Accused No.1) and Accused No. 2
- Accused No.1, 4& 5 was originally convicted under Sec 29 read with 20(b)(ii)(c) and 25 of the Narcotics Drugs and Psychotropic Substances Act, 1985 by Trial Court.
- The High Court, while partly allowing appeal to the effect that the fine was enhanced and the default sentence was reduced.
- Hence, the appeal is filed before the Supreme court.
Issues
- Whether the mandatory statutory compliance under section 41(2), NDPS Act was followed in the search and seizure procedure?
- Whether the statement of the accused/Appellants under section 67 of NDPS Act were confessional statement or not?
- Whether the power to search, seizure under 41(2) of NDPS Act is violation of fundamental rights?
- Whether the prosecution had proven case beyond reasonable doubt?
Held
- The Supreme Court allowed the appeals, setting aside the impugned judgment of the High Court as well as that of the Trial Court. The Appellants are acquitted of the charges framed against them by giving benefit of doubt. The findings of the court are as under:
- If there was an interval which ought to have been sufficient for purpose of fabrication then the said statement having been recorded, with however slight delay there may be, is not part of res gestae. The idea of search of the house of Accused No. 4, is an afterthought with an admitted time gap of 40-45 minutes. The search conducted at the residence of the Accused No. 04 is not a continuance of action based on the secret information received.
- The bar under Section 25 of the IEA 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Section 41 and 42 of the NDPS Act 1985
- Section 41(2) empowers a Magistrate to issue search warrant for the arrest of any person or for search, whom he has reason to believe to have committed any offence under the NDPS Act. As per Section 41(2), such reason to believe must arise from either personal knowledge or information given by any person to him and is required to be reduced into writing. The search conducted at the house of Accused No. 01 and Accused No. 04 was not based on the personal knowledge, rather it was an action bereft of mandatory statutory compliance of Section 41(2). The raid at the house of the Accused No. 01 and Accused No. 04 is in violation of the statutory mandate of Section 41(2) of the NDPS Act 1985.
- Power of search and seizure under Section 41(2) of the NDPS Act 1985, is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations. Article 20(3) of the Constitution would not be affected by the provisions of search and seizure. The statutory provisions conferring authorities with the power to search and seize are a mere temporary interference with the right of the accused as they stand well regulated by reasonable restrictions emanating from the statutory provisions itself.
- The provision obligates an officer empowered by virtue of Section 41(2) to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1), in case an empowered officer proceeds on his personal knowledge. The grounds of belief is to be conveyed to the immediate official superior, prior to the search and in case of any inability to do so, the Section 42(2) provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso. Absolute non-compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay.
- Information received under section 67 is not in the nature of a confessional statement. Such statements cannot be used against the accused.
Relevant Para No.
- 27, 31, 50,51 and 53