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2000 (11) TMI 1207 - SC - Indian LawsWhether the impugned proceedings in Session Case No.78 of 1993 are liable to be quashed under Section 482 of the Criminal Procedure Code? Held that - It may be noticed that that conclusion in this case 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 (1994 (3) TMI 173 - SUPREME COURT OF INDIA) 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.
Issues Involved:
1. Authority of the Excise Inspector to conduct search and seizure under the NDPS Act. 2. Validity of the charge sheet filed by an unauthorized officer. 3. Applicability of Section 482 of the Criminal Procedure Code to quash proceedings. Issue-wise Detailed Analysis: 1. Authority of the Excise Inspector to Conduct Search and Seizure under the NDPS Act: The appellant was searched and allegedly found in possession of Ganja by the Excise Inspector, Devikulam, on November 21, 1990. The Excise Inspector filed a charge under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) on February 20, 1991. However, the statutory notification authorizing Excise Inspectors to file complaints under Section 36A(1)(d) of the NDPS Act was issued by the Government of Kerala only on October 20, 1992. Therefore, at the time of the search and seizure, the Excise Inspector was not authorized under Sections 41(2) or 42(1) of the NDPS Act to conduct such operations. The Supreme Court highlighted that only an empowered officer could exercise the powers under Section 41(2) or 42(1) of the NDPS Act. Any action taken by an unauthorized officer is inherently illegal and lacks the sanction of law, thus vitiating the trial. 2. Validity of the Charge Sheet Filed by an Unauthorized Officer: The appellant was initially discharged by the Additional Sessions Judge, Thodupuzha, on February 22, 1993, due to the lack of authorization of the Excise Inspector. Despite this, the same Excise Inspector filed a fresh charge sheet on May 17, 1993, for the same offense. The High Court of Kerala dismissed the appellant's petition to quash the proceedings. The Supreme Court reiterated that any material collected, detention, or arrest by an unauthorized officer is illegal and cannot form the basis of proceedings under the NDPS Act. This view aligns with the precedent set in State of Punjab Vs. Balbir Singh, where the Court held that actions by unauthorized officers vitiate the prosecution and the trial. 3. Applicability of Section 482 of the Criminal Procedure Code to Quash Proceedings: The Supreme Court emphasized the sacrosanct nature of life and liberty, protected under Article 21 of the Constitution. The Court noted that criminal proceedings based on illicit material collected through illegal search and arrest constitute an abuse of the process of the court. Therefore, under Section 482 of the Criminal Procedure Code, the High Court has the power to quash such proceedings to prevent abuse and secure the ends of justice. The Supreme Court disagreed with the Additional Solicitor General's reliance on the conclusion in State of Punjab Vs. Baldev Singh, which dealt with non-compliance of Section 50 of the NDPS Act by an empowered officer. In contrast, the present case involved actions by an unauthorized officer, thus necessitating the quashing of proceedings to prevent perpetuating illegality and hardship to the appellant. Conclusion: The Supreme Court set aside the High Court's order, allowed the appellant's petition (Crl.M.C.No.2417 of 1996), and quashed the proceedings in Session Case No.78 of 1993 on the file of Additional Sessions Judge, Thodupuzha. The appeal was thus allowed, emphasizing the need for adherence to legal authorizations and protections under the law.
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