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1994 (3) TMI 173 - SC - CustomsWhether any arrest and search of a person or search of a place without conforming to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act ), become illegal and consequently vitiate the conviction? Held that - Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions also are there in the Cr. P.C. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two Sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.
Issues Involved:
1. Compliance with the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) during arrest, search, and seizure. 2. Legality of arrest, search, and seizure conducted without conforming to the NDPS Act. 3. Application of the Code of Criminal Procedure (Cr. P.C.) in cases under the NDPS Act. 4. Mandatory nature of provisions under Sections 41, 42, 50, 51, 52, and 57 of the NDPS Act. 5. Effect of non-compliance with procedural safeguards on the validity of the trial and conviction. Detailed Analysis: 1. Compliance with the NDPS Act During Arrest, Search, and Seizure: The primary issue was whether arrests and searches conducted without adhering to the NDPS Act provisions are illegal and vitiate the convictions. The trial courts acquitted the accused on the grounds of non-compliance with mandatory provisions of the NDPS Act, and the High Court refused to grant leave to appeal against these acquittals. 2. Legality of Arrest, Search, and Seizure: The State of Punjab contended that the police officers acted on reasonable suspicion of a cognizable offence, not on prior information of an NDPS Act offence, and thus compliance with the NDPS Act was not required. The court emphasized that the NDPS Act incorporates stringent provisions to safeguard against harassment and wrongful prosecution, making compliance with these provisions mandatory. 3. Application of the Cr. P.C. in NDPS Cases: The court noted that the NDPS Act is not a complete code and incorporates provisions from the Cr. P.C. where not inconsistent with the NDPS Act. Sections 100 and 165 of the Cr. P.C. apply to searches and seizures under the NDPS Act, provided they do not conflict with the NDPS Act's provisions. The court highlighted that non-compliance with the Cr. P.C. provisions amounts to irregularity, not illegality, unless it causes prejudice to the accused. 4. Mandatory Nature of NDPS Act Provisions: The court stressed that certain provisions of the NDPS Act, particularly Sections 41, 42, 50, 51, 52, and 57, are mandatory. Non-compliance with these sections can vitiate the trial and affect the prosecution's case. For instance: - Section 42 requires officers to record information in writing and send it to their immediate superior. - Section 50 mandates that the person to be searched must be informed of their right to be searched before a gazetted officer or magistrate. - Sections 52 and 57 outline procedural steps post-arrest and seizure, which, if not followed, can affect the probative value of evidence. 5. Effect of Non-Compliance on Trial and Conviction: The court concluded that non-compliance with mandatory provisions of the NDPS Act, such as Sections 41, 42, and 50, affects the prosecution case and vitiates the trial. However, non-compliance with procedural instructions under Sections 52 and 57, while not rendering the acts null and void, can impact the appreciation of evidence and the merits of the case. The court emphasized that prejudice to the accused must be shown for non-compliance to invalidate the trial or conviction. Conclusion: 1. Search and Arrest Without Prior Information: If a police officer conducts a search or arrest without prior information under the NDPS Act, Section 50 requirements do not apply. If narcotic substances are discovered, the officer must inform an empowered officer to proceed under the NDPS Act. 2. Empowered Magistrates and Officers: Only empowered magistrates and officers can issue warrants and conduct searches or arrests under the NDPS Act. Unauthorized actions are illegal and vitiate the trial. 3. Recording Information and Grounds: Empowered officers must record information in writing and grounds for belief when conducting searches or arrests. Failure to do so affects the prosecution case. 4. Section 50 Compliance: Officers must inform the person to be searched of their right to be searched before a gazetted officer or magistrate. Non-compliance with Section 50 is mandatory and vitiates the trial. 5. Post-Arrest Procedures: Sections 52 and 57 outline steps post-arrest and seizure. Non-compliance affects the probative value of evidence but does not automatically invalidate the trial. Specific Cases: - State of Punjab Cases: The court dismissed the State's petitions and appeals due to the significant delay and the improbability of a retrial after a long lapse of time. - Criminal Appeal No. 212/93: The appeal by the State of Punjab against acquittal was dismissed. - Criminal Appeals Nos. 334/90, 348/91, and S.L.P. (Crl.) No. 2437/92: These matters were delinked for regular hearing on merits in light of the court's conclusions.
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