Smt. Najmunisha vs The State of Gujarat

Held: s.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 – s.41(2) further enables a Gazetted Officer, so empowered to arrest or conduct a search – The empowered Gazetted Officer must have reason to believe that an offence has been committed under Chapter IV, which necessitated the arrest or search– As per s.41(2), such reason to believe must arise from either his personal knowledge or information given by any person to him – Additionally, such knowledge or information is to be reduced into writing by virtue of expression “and taken in writing” used therein – The secret information received by PW-2 was limited to the apprehension that Accused No.4 was to carry contraband via an auto rickshaw from a particular route – There was no reference to the apprehension of existence of contraband in the house of Accused No.4 in the said recorded information – There was no prior information to the raiding party, including PW-3 (Gazetted Officer) that there was contraband in his house, necessitating search for the same – PW-1 deposed that he was asked to accompany the raiding party to the house of Accused No.4, located nearby for carrying out a search thereof and admits of having no knowledge about any written information with the raiding party for conducting raid at the said house – PW-2 admitted that the raiding team proceeded to the house for the search of the contraband pursuant to the discussions carried by them and not particularly on the personal knowledge of PW-3 – She further admitted that it was obligatory for her to obtain a written authorization from her superior officer, PW-3 however, omitted seeking the said authorization on the premise that there was an emergent need to conduct search at the house – Such major inconsistency as to the ‘source’ of information of existence of contraband at the house of Accused No.4 weakens the case of prosecution – Plea that the expressions “personal knowledge” and “and taken in writing” contemplated by s.41(2) ought to be read disjunctively, eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer, rejected – Raid/search at the house of the Accused No.1 and 4 was not based on the personal knowledge of PW-3, rather it was an action on the part of raiding party bereft of mandatory statutory compliance of s.41(2) – Conviction of Accused No.1 premised on the recovery of 2.098 kgs of charas from the house was not in consonance with the mandatory statutory compliance of s.41(2)– Prosecution not able to establish its case beyond reasonable doubt – Impugned judgment of the High Court and Trial Court, set aside – Appellants acquitted by giving benefit of doubt. [Paras 42-47, 54]

Narcotics Drugs and Psychotropic Substances Act, 1985 – s.42(1), (2), s.41(2) – Amendment Act of 2001: Held: s.42(1) obligates an officer empowered by virtue of s.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 s.42(1) in case an empowered officer proceeds on his personal knowledge – While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the s.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 hereto – This relaxation contemplated by virtue of s.42(2) was brought about through the Amendment Act of 2001 to the NDPS Act wherein prior to this position s.42(2) mandated the copy of the said writing to be sent to the immediate official superior “forthwith”. [Para 31]

Evidence Act, 1872 – s.6 – “acts forming part of same transaction” – Search conducted at the residence of the Accused No.4 if was in continuance of action of the raiding party towards the search of the auto rickshaw based on the secret information received by PW-2 (Intelligence Officer/Inspector):

Held: No – The attempt towards raiding/searching the residence of Accused No.4 was not explicitly in pursuance of detaining the said accused – Testimonies of the members of the raiding party showcase the idea of search of the house to be an afterthought with an admitted time gap of 40-45 minutes between having raided the auto rickshaw which was alleged to be abandoned by the driver and Accused No.4 and subsequent search of the house of Accused No.4, wherein Accused No.1 was present – Moreover, it appears from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance – Hence, the search conducted at the residence of the Accused No.4 was not a continuance of action of the raiding party towards the search of the auto rickshaw based on the secret information received by PW-2 – Accordingly, it does not appropriately fulfill the requirements of the test laid down in Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh – Searches of the abandoned auto rickshaw, and at the house wherein Accused No.1 was present, were thus, different transactions. [Paras 28, 29]

Narcotics Drugs and Psychotropic Substances Act, 1985 – s.67 – Statement of the appellants-accused recorded u/s.67 – Plea of the appellants that same was not admissible and ought not to have been the basis of conviction of the appellantsAccused No.1 and 4: Held: In Tofan Singh v. State of Tamil Nadu it was held held that s.67 is at an antecedent stage to the investigation, which occurs after the empowered officer u/s.42 of the NDPS Act has the reason to believe upon information gathered in an enquiry made in that behalf that an offence under NDPS Act has been committed and is thus not even in the nature of a confessional statement – Hence, question of its being admissible in trial as a confessional statement against the accused does not arise - The same, therefore, cannot be considered to convict an accused person under the NDPS Act – By virtue of the decision in Tofan Singh, the benefit is to be granted to the appellants in regard to the inadmissibility of their statements u/s. 67. [Paras 51, 52]

Narcotics Drugs and Psychotropic Substances Act, 1985 – s.41(2) – Power of search and seizure – Limited by the recognition of fundamental rights by the Constitution and statutory limitations:

Held: s.41(2) begins from the power of search and seizure conferred by the State upon its executive or administrative arms – Such power is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations – At the same time, it is not legitimate to assume that Article 20(3) of the Constitution of India would 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 – Such a power cannot be considered as a violation of any fundamental rights of the person concerned. [Para 41]

Narcotics Drugs and Psychotropic Substances Act, 1985 – Constitution of India – Article 21 – Just and fair trial, a fundamental right – Actions of authorities within the NDPS Act must ensure upholding the rights of the accused to have a fair trial:

Held: Article 21 necessitates a just and fair trial to be a humane and fundamental right and actions of the prosecution as well as the authorities concerned within the meaning of the NDPS Act 1985 must be towards ensuring of upholding of the rights of the accused in order to allow to have a fair trial – The harmonious balance between the Latin maxims 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) is not only crucial and pertinent but lies at the core of the doctrine that welfare of an individual must yield to that of the community subject to the State being right, just, and fair. [Para 24]