2002 (4) TMI 895 - SC - Indian Laws

Whether by reason of the respondent being a member of the Armed Forces would stand denuded of such a safeguard in the event the General Court Martial takes note of an offence under a specific statute? Held that - Turning attention on to the procedural aspect, be it noticed that Section 18 is an offence which cannot but be ascribed to be civil in nature in terms of the provisions of Army Act if Section 18 is to be taken recourse to then and in that event the provisions of the statute come into play in its entirety rather than piecemeal. The charge leveled against the respondent is not one of misdeeds or wrongful conduct in terms of the provisions of the Army Act but under the NDPS Act In the event, we clarify, a particular statute is taken recourse to, question of trial under another statute without taking recourse to the statutory safeguards would be void and the entire trial would stand vitiated unless, of course, there are existing specific provisions therefor in the particular statute. Needless to record that there were two other civilian accused who were tried by the Court at Patiala but were acquitted of the offence for noncompliance of the mandatory requirements of the NDPS Act. Once the petitioner was put on trial for an offence under the NDPS Act, the General Court Martial and the Army authorities cannot reasonably be heard to state that though the petitioner would be tried for an offence under Section 18 of the NDPS Act, yet the procedural safeguards as contained in the statutory provision would not be applicable to him being a member of the Armed Forces. The Act applies in its entirety irrespective of the jurisdiction of the General Court Martial or other Courts and since the Army authorities did not take into consideration the procedural safeguards as is embodied under the Statute, the question of offering any credence to the submissions of Union of India in support of the appeal does not and cannot arise. There is no material on record to show that the authorities who conducted the search and seizure at the house of the respondent herein has in fact done so in due compliance with Section 42 of the statute which admittedly stand fatal for the prosecution as noticed above as a matter of fact, two of the civilians stand acquitted therefor. Lastly, it has been contended by the respondent that the charge-sheet is not only vague, but devoid of all material particulars and does not even fulfil the requirements of the Army Rules and the entire proceedings in any event stand vitiated. We are, however, not expressing any opinion thereon, neither the same is required for the purposes of disposal of this matter. Suffice it to record, however, that the same has some substance. Having considered the matter in the perspective as above, we do not find any infraction of any law in the judgment of the High Court, neither the judgment can be faulted in any other way. This appeal, therefore, fails and is thus dismissed.

Summary

Issues Involved:
1. Applicability of Constitutional Rights to Army Personnel
2. Procedural Safeguards under NDPS Act for Army Personnel
3. Validity of Search and Seizure Conducted by Army Authorities
4. Vagueness of the Charge-Sheet

Issue-wise Detailed Analysis:

1. Applicability of Constitutional Rights to Army Personnel:
The judgment addresses whether Army personnel are entitled to Constitutional privileges. It states, "An Army Personnel is as much a citizen as any other individual citizen of this country." Article 33 allows Parliament to restrict or abridge rights for Armed Forces members, but this does not imply that Army personnel are entirely outside the Constitution's purview. The judgment cites previous cases, including Prithi Pal Singh vs. The Union of India, emphasizing that military personnel do not lose their citizenship rights, although these can be restricted for national security and discipline.

2. Procedural Safeguards under NDPS Act for Army Personnel:
The court examined whether procedural safeguards under the NDPS Act apply to Army personnel tried by General Court Martial. The judgment states, "The NDPS Act admittedly contains certain safeguards and the law reports are replete with case laws pertaining to these safeguards." It emphasizes that these safeguards are mandatory and cannot be diluted, even for Army personnel. The court referred to Sections 18, 42, and 50 of the NDPS Act, stressing the importance of compliance with these provisions. The court noted that the Army authorities did not adhere to these procedural safeguards, rendering the trial and conviction void.

3. Validity of Search and Seizure Conducted by Army Authorities:
The judgment scrutinizes the search and seizure procedures conducted by Army officers. It highlights the requirement for compliance with Sections 41 and 42 of the NDPS Act, which mandate proper authorization and search warrants. The court found that the officers conducting the search were not duly authorized, and no search warrants were issued, thus violating the NDPS Act. The court cited the decision in Roy V.D. v. State of Kerala, reinforcing that non-compliance with these sections vitiates the trial.

4. Vagueness of the Charge-Sheet:
The respondent argued that the charge-sheet was vague and lacked material particulars. The judgment notes, "the charge-sheet is not only vague, but devoid of all material particulars and does not even fulfil the requirements of the Army Rules." Although the court did not delve deeply into this issue, it acknowledged that the charge-sheet's vagueness contributed to the procedural flaws in the trial.

Conclusion:
The Supreme Court upheld the High Court's decision, finding no legal infraction in its judgment. The appeal was dismissed, affirming that Army personnel retain Constitutional rights, and procedural safeguards under the NDPS Act must be strictly followed in their trials. The court emphasized that non-compliance with statutory provisions, such as those in the NDPS Act, vitiates the trial and conviction, regardless of the jurisdiction of the General Court Martial.