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PETITIONER: ROY V.  D.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       10/11/2000

BENCH: S.N.Phukan, S.S.M.Quadri

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     Syed Shah Mohammed Quadri, J.

     Leave  to appeal is granted.  This appeal is  directed against  the  order  dated June 4, 1998 passed by  the  High Court  of Kerala at Ernakulam dismissing Crl.M.C.No.2417  of 1996  which was filed by the appellant praying the Court  to quash  proceedings in Session Case No.78 of 1993 on the file of Additional Sessions Judge, Thodupuzha.  The appellant was searched  by  the  Excise   Inspector,  Devikulam.   On  the allegation  of  recovering Ganja from his  possession  the appellant  was  taken  into custody on  November  21,  1990. Under  Section  20(b)(i) of Narcotic Drugs and  Psychotropic Substances  Act, 1985 (for short, the NDPS Act), a  charge was laid against him by the Excise Inspector on February 20, 1991,  whereas  the  statutory notification under  which  he became  competent so to do, was issued by the Government  of Kerala  in G.O.(MS)No.168/92/TD, authorising officers of and above the rank of Excise Inspectors of the Excise Department to  file complaints under Section 36A(1)(d) of the NDPS Act, on  October  20,  1992.   On  the  ground  that  the  Excise Inspector  was  not  authorised  to file  the  charge  sheet against  the appellant and, therefore, the complaint was not maintainable, the appellant was discharged under Section 227 of  Code  of  Criminal Procedure by the  learned  Additional Sessions  Judge, Thodupuzha, on February 22, 1993.  The said Excise  Inspector, Devikulam, however, filed a fresh  charge sheet  against the appellant in Crime No.56 of 1990 for  the very  same offence on May 17, 1993.  The case was  committed to  the court of the Additional Sessions Judge,  Thodupuzha, and  was  numbered  as  Session Case  No.78  of  1993.   The appellant  filed  Crl.M.C.  No.2417 of 1996 before the  High Court  of  Kerala  praying that the  entire  proceedings  in Session  Case  No.78  of  1993 on  the  file  of  Additional Sessions  Judge, Thodupuzha be quashed.  By the order  under challenge the High Court dismissed the petition.  Hence this appeal.    Mr.K.Sukumaran,   the   learned  senior   counsel appearing  for the appellant, contended that on the basis of recovery  of illicit material on search and seizure made  by an  Excise Inspector, not authorised under Sections 41(2) or 42(1)  of  the  NDPS  Act, no charge could  have  been  laid against  the  appellant  so  the High Court  ought  to  have quashed  the  impugned proceedings.  Mr.Mukul  Rohtagi,  the learned  Additional  Solicitor  General  appearing  for  the State/respondent,  argued  that the appellant could as  well

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raise  this plea at his trial before the Sessions Court  and when  the  High Court declined to quash the  proceedings  it would  not  be  appropriate  for this  Court  to  quash  the proceedings.  On these contentions, the question that arises for  consideration is :  whether the impugned proceedings in Session  Case  No.78 of 1993 are liable to be quashed  under Section  482  of the Criminal Procedure Code.  The life  and liberty  of an individual is so sacrosanct that it cannot be allowed  to be interfered with except under the authority of law.   It  is  a  principle which has  been  recognised  and applied  in  all civilised countries.  In our  Constitution, Article  21  guarantees  protection  of  life  and  personal liberty  not  only to citizens of India but also to  aliens. The ground on which the proceedings are sought to be quashed is  that search, seizure and the alleged recovery of Ganja are  all  in violation of Section 42(1) being by  an  Excise Inspector  who was not empowered under Sections 41(2) of the said  Act.   A reference to Sections 41 and 42 of  the  NDPS will  be  apposite.   They read as under:  41.   Power  to issue warrant and authorisation.-

     (1)  A Metropolitan Magistrate or a Magistrate of  the first  class or any Magistrate of the second class specially empowered  by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe  to  have  committed any  offence  punishable  under chapter  IV, or for the search, whether by day or by  night, of  any building, conveyance or place in which he has reason to  believe  any narcotic drug or psychotropic substance  in respect  of which an offence punishable under Chapter IV has been  committed  or any document or other article which  may furnish  evidence of the commission of such offence is  kept or concealed.

     (2)  Any  such  officer  of   gazetted  rank  of   the departments  of central excise, narcotics, customs,  revenue intelligence   of  any  other   department  of  the  Central Government  or of the Border Security Force 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 Chapter IV or that  any  narcotic drug,  or  psychotropic  substance in respect of  which  any offence  punishable  under Chapter IV has been committed  or any  document or other article which may furnish evidence of the commission of such offence has been 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 a 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.-

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     (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 or  of  the Border  Security  Force  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 personal knowledge  or information given by any person and taken down in   writing,  that  any   narcotic  drug,  or  psychotropic substance,  in respect of which an offence punishable  under Chapter  IV  has  been committed or any  document  or  other article which may furnish evidence of the commission of such offence  is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,-

     (a)   enter  into  and   search  any  such   building, conveyance or place;

     (b)  in  case of resistance, break open any  door  and remove any obstacle to such entry;

     (c)  seize  such drug or substance and  all  materials used  in  the manufacture thereof and any other article  and any  animal or conveyance which he has reason to believe  to be liable to confiscation under this Act and any document or other  article  which he has reason to believe  may  furnish evidence  of the commission of any offence punishable  under Chapter IV relating to such drug or substance;  and

     (d) detain and search, and if he thinks proper, arrest any  person whom he has reason to believe to have  committed any  offence  punishable under Chapter IV relating  to  such drug or substance:

     Provided  that  if such officer has reason to  believe that  a  search warrant or authorisation cannot be  obtained without  affording  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 sun set and sun rise 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 forthwith send a copy thereof to his immediate official superior.

     Sub-section  (1) of Section 41 of the NDPS Act enables a Metropolitan Magistrate or a Magistrate of the first class or  any  Magistrate  of the second class who  is  especially empowered  by the State Government in this behalf to issue a warrant  for the arrest of any person whom he has reason  to believe  to  have  committed any  offence  punishable  under chapter  IV  of  the said Act.  Such a warrant may  also  be issued  for the search of any building, conveyance or  place in  which he has reason to believe that any narcotic drug or psychotropic  substance  in  respect  of  which  an  offence punishable  under  Chapter  IV  has been  committed  or  any document  or other article which may furnish evidence of the commission  of such offence is kept or concealed.  Arrest or

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search  under a warrant issued in this provision can be made at  any time whether by day or by night.  Sub-section (2) of Section  41 of the NDPS Act entitles any officer of gazetted rank  of  the  departments  of  central  excise,  narcotics, customs, revenue intelligence or any other department of the Central  Government or of the Border Security Force who  has been empowered in that behalf by general or special order of the Central Government, or any officer of the revenue, drugs control,  excise, police or any other department of a  State Government  as  is  empowered in that behalf by  general  or special order of the State Government, to arrest a person or search a building, conveyance or a place or to 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. Sub-section  (3) of Section 41 of the NDPS Act says that the Officer to whom a warrant under sub-section (1) is addressed and  the officer who authorised the arrest or search and the officer  who  is so authorised under sub- section (2)  shall have  all the powers of an officer acting under Section  42. Sub-section  (1)  of Section 42 of the NDPS  enumerates  the powers  of any such officer as is specified therein and  who is  duly  empowered by the Central Government or  the  State Government, as the case may be.  If he has reason to believe either  from  personal knowledge or on information given  by any  person and taken down in writing, that (a) any narcotic drug,  or  psychotropic  substance, in respect of  which  an offence  punishable under Chapter IV has been committed;  or (b) any document or other article which may furnish evidence of  the  commission of such offence is kept or concealed  in any  building, conveyance or enclosed place, he may exercise the following powers, between sunrise and sunset.  They are: (i)  enter  into any building and search any such  building, conveyance  or place and if faced with any resistance, break open  any  door and remove any such obstacle to such  entry; (ii)  seize:  (a) such drug or substance and other materials any  other article or any animal or conveyance which he  has reason to believe to be liable to confiscation under the Act and (b) any document or other article which he has reason to believe  may  furnish  evidence  of the  commission  of  any offence  relating  to  such drug or  substance;   and  (iii) detain and search and if he thinks proper, arrest any person whom  he has reason to believe to have committed any offence punishable  under  Chapter  IV  relating  to  such  drug  or substance.   The  proviso to sub- section (1) says  that  an empowered   officer  may  also   enter  into  any  building, conveyance  or enclosed place at any time between sunset and sunrise if he 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 but in such a  case  before  so proceeding  he  is  enjoined to record the  grounds  of  his belief.  Sub-section (2) of Section 42 contains a procedural directive  to the officer who takes down any information  in writing  under  sub-section (1) or records grounds  for  his belief  under  the proviso thereto to send forthwith a  copy thereof to his immediate official superior.  It is thus seen that  for exercising powers enumerated under sub-section (1) of  Section  42  at any time whether by day or  by  night  a warrant  of  arrest  or  search  issued  by  a  Metropolitan Magistrate  or  a  Magistrate  of the  first  class  or  any Magistrate  of  the  second  class who  has  been  specially empowered  by  the  State Government in that  behalf  or  an authorisation  under  sub-section  (2) of Section 41  by  an empowered  officer is necessary.  Without such a warrant  or

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an  authorisation,  an empowered officer can exercise  those powers  only  between  sunrise  and  sunset.   However,  the proviso  permits such an empowered or authorised officer  to exercise  the  said  powers at any time between  sunset  and sunrise  if  he  has reason to believe that  such  a  search warrant   or  authorisation  cannot   be  obtained   without affording  opportunity  for the concealment of  evidence  or facility  for  the escape of an offender and he records  the grounds  of  his belief.  Now, it is plain that  no  officer other  than an empowered officer can resort to Section 41(2) or  exercise  powers under Section 42(1) of the NDPS Act  or make  a  complaint  under clause (d) of sub-section  (1)  of Section 36A of the NDPS Act.  It follows that any collection of  material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being  an  empowered officer or an authorised officer  under Section  41(2) of the NDPS Act, lacks sanction of law and is inherently  illegal  and  as such the same cannot  form  the basis  of a proceeding in respect of offences under  Chapter IV  of  the  NDPS  Act and use of such  a  material  by  the prosecution  vitiates the trial.  To the same effect is  the view  expressed by this Court in State of Punjab Vs.  Balbir Singh  [1994 (3) SCC 299].  In para 13 Jayachandra Reddy, J. speaking  for the Court observed thus :  Therefore, if  an arrest  or  search contemplated under Sections 41 and 42  is made  under  a warrant issued by any other Magistrate or  is made  by  any officer not empowered or authorised, it  would per  se be illegal and would affect the prosecution case and consequently vitiate the trial.

     It is well settled that the power under Section 482 of the  Cr.P.C.   has to be exercised by the High Court,  inter alia,  to  prevent the abuse of the process of any court  or otherwise  to  secure the ends of justice.   Where  criminal proceedings   are  initiated  based   on  illicit   material collected  on search and arrest which are per se illegal and vitiate  not  only a conviction and sentence based  on  such material  but also the trial itself, the proceedings  cannot be  allowed to go on as it cannot but amount to abuse of the process  of  the  court;  in such a case  not  quashing  the proceedings  would  perpetuate abuse of the process  of  the court  resulting  in  great hardship and  injustice  to  the accused.   In  our opinion, exercise of power under  Section 482  of the Cr.P.C.  to quash proceedings in a case like the one  on hand, would indeed secure the ends of justice.   The learned  Additional Solicitor General, however, relying upon conclusion  No.3  in para 57 of State of Punjab Vs.   Baldev Singh [1999 (6) SCC 172], contends that a search and seizure in  violation  of Sections 41 & 42 of the NDPS Act does  not vitiate  the trial but would render the recovery of  illicit article  suspect  and would only vitiate the conviction  and sentence  of the accused if the conviction has been recorded solely  on  the basis of such illicit article, so  the  High Court  was  right in not quashing the proceedings.   We  are afraid,  we  cannot accede to the contention of the  learned Additional  Solicitor General.  The conclusion, referred  to above,  may be extracted here :  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

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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.

     It  may be noticed that that conclusion was reached by the  Constitution Bench in the context of non-compliance  of Section  50  of the NDPS Act.  While emphasising that it  is imperative  on the officer who is making search of a  person to  inform him of his right under sub-section (1) of Section 50  of  the NDPS Act, it was held that the recovery  of  the illicit  article in violation of Section 50 of the NDPS  Act would render the recovery of illicit article suspect and use of  such material would vitiate the conviction and  sentence of  an accused.  It is manifest that the recovery of illicit article  in that case was by a competent officer but was  in violation  of  Section 50 of the NDPS Act.  In  the  instant case,  however,  the search and recovery were by an  officer who  was not empowered so to do.  Further in Balbir  Singhs case (supra) this Court took the view that arrest and search in violation of Sections 41 and 42 of the NDPS Act being per se  illegal  would vitiate the trial.  Therefore,  the  said conclusion  cannot  be  called in aid to support  the  order under challenge.  If the proceedings in the instant case are not quashed, the illegality will be perpetuated resulting in grave hardship to the appellant by making him to undergo the ordeal  of  trial  which is vitiated by the  illegality  and which  cannot result in conviction and sentence.  It is,  in our  view, a fit case to exercise power under Section 482 of Cr.P.C.   to  quash  the   impugned  proceedings.   For  the afore-mentioned  reasons, we set aside the order of the High Court,   allow  Crl.M.C.No.2417  of   1996  and  quash   the proceedings  in  Session Case No.78 of 1993 on the  file  of Additional  Sessions Judge, Thodupuzha.  The appeal is  thus allowed.