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TMI Blog2024 (12) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... d unnecessarily detains, searches or arrests any person shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both. The notice which was given by the learned Special Judge to the appellant and other police officers was for the offence punishable under Sections 58(1) and (2) of the NDPS Act. As such, it could be seen that the proceedings which were initiated by the learned Special Judge against the appellant were for the offence punishable for which the maximum sentence provided in the NDPS Act was up to two years. Section 36-A (5) of the NDPS Act which begins with the nonobstante clause provides that notwithstanding anything contained in the Cr.P.C., the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. A bench of learned three Judges of this Court in the case of TOFAN SINGH VERSUS STATE OF TAMIL NADU [ 2020 (11) TMI 55 - SUPREME COURT] was considering a question as to whether officers of departments other than the police, on whom the powers of an officer in charge of a police station under Chapter XIV of the Cr.P.C., have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn, a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute. It has been held that there has to be material to attribute or impute an unreasonable motive behind an act to take away the immunity clause. Violation of Principles of Natural Justice - HELD THAT:- The facts in the present case are somewhat similar to the facts which fell for consideration before this Court in the case of State of West Bengal and Others v. Babu Chakraborthy [ 2004 (9) TMI 606 - SUPREME COURT ]. In the said case, the accused persons were convicted for an offence punishable under the NDPS Act. In the appeal preferred by them, while allowing the appeal, the High Court made several strictures and observations against two officers of the West Bengal Police in an IPS Cadre. In the said case also, the allegations against the said officers were with regard to violation of provisions of Section 42 of the NDPS Act. The learned Special Judge, without even giving notice to her, only on the basis of the arguments advanced at the stage of final hearing of the matter, made adverse observations against her by almost finding her gui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved in the sale of Opium, was having a large quantity of Opium with him and could be apprehended. Based on this, a raiding party was formed which reached the residence of Ran Singh. Shri Virender Kumar Vij, Deputy Superintendent of Police D.S.P. hereinafter , reached the spot and he directed a search to be conducted. Ran Singh was found near his residence, and he had covered himself in a blanket. He was apprehended and was found holding a white coloured plastic bag in his right hand. The plastic bag was searched and Opium weighing 8 Kgs. 700 grams was recovered. Based on the aforementioned facts, a First Information Report F.I.R. hereinafter No. 08 of 2005 was registered at Police Station, Shahbad, Kurukshetra for the commission of offence punishable under Section 18 of the NDPS Act. As per the report of the Forensic Science Laboratory, Haryana, Madhuban, Karnal, the material recovered was found to be Opium. 2.3. On 8th January 2005, an application was filed by Ran Singh through a relative, wherein he claimed that he was innocent, and that the Opium had been planted upon him by one Surjeet Singh and others. The appellant, utilizing her powers as the S.P., took cognizance of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Special Judge vide order dated 26th February 2007 issued Show-Cause Notice to the appellant under Section 58 of NDPS Act and directed her to remain present before the court on 15th March 2007. Pursuant to the said order, the appellant appeared before the learned Special Judge along with her counsel and the matter was adjourned to 12th April 2007 for filing of her reply to the notice. The reply was filed by the appellant. 2.8. The appellant challenged the Show-Cause Notice dated 26th February 2007 by way of Criminal Revision No. 956 of 2007 before the High Court, which was dismissed vide order dated 19th May 2008. It was observed that, prima facie, the allegations made against the appellant herein cannot be said to be false or not based on material on record. However, it was clarified that nothing stated in the said order shall be construed as an expression of opinion on the merits of the case. 2.9. On the next day, i.e. 20th May 2008, the learned Special Judge was informed of the decision of the High Court dated 19th May 2008 and the matter was fixed for 22nd May 2008 for the personal presence of the appellant as well as the then D.S.P. Ram Phal. 2.10. On 22nd May 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected that one more chance for personal hearing must be given to the appellant and in case she does not appear, it would be presumed that she does not want to avail any opportunity of hearing. The matter was adjourned to the next day, i.e. 30th May 2008. 2.15. On 30th May 2008, the learned Special Judge observed that neither was the appellant present nor any application for exemption had been filed. Further, before the order could be pronounced, an objection was raised on behalf of the appellant that in sensitive matters, orders should not be pronounced after the receipt of the transfer orders by the judicial officer. The learned Special Judge placed the typed and dictated order in a sealed cover and adjourned the matter to 4th June 2008. 2.16. Aggrieved by the order dated 30th May 2008, the appellant filed Criminal Revision No. 2194 of 2008 before the High Court of Punjab and Haryana at Chandigarh. The learned Single Judge of the High Court, vide the impugned final judgment and order dated 14th October 2010 dismissed the Criminal Revision and upheld the order of the learned Special Judge dated 30th May 2008. It was further directed that the Special Court, Kurukshetra would open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of notice on the premise that the appellant had committed an offence punishable under Section 58 of the NDPS Act was itself not sustainable. 6. Shri Nadkarni further submitted that the findings of the learned Special Judge are totally contradictory. On one hand, the learned Special Judge came to a specific finding that there was no violation of Sections 42, 50 and 55 of the NDPS Act; on the other hand, the learned Special Judge has issued a notice on the premise that the appellant and the other officers are guilty of an offence punishable under Section 58 of the NDPS Act. It is further submitted that the very approach of the learned Special Judge in issuing notice under Section 58 of the NDPS Act merely two days after the judgment and order dated 22nd/24th February 2007 and thereafter rushing the proceedings in a hurried manner would show that the learned Special Judge was predetermined to convict the appellant. It is submitted that this is clear from the said order of the learned Special Judge which was kept in a sealed cover and opened by this Court on 24th October 2024. 7. Shri Nadkarni submitted that the learned Special Judge failed to take into consideration that the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tected by Section 69 of the NDPS Act read with Section 76 of the Indian Penal Code, 1860. Shri Nadkarni submitted that the findings against the appellant in the judgment and order dated 22nd/24th February 2007 were rendered without arraying the appellant as additional accused. It is submitted that the procedure adopted by the learned Special Judge was contrary to the Constitution Bench judgment of this Court in the case of Sukhpal Singh Khaira v. State of Punjab (2023) 1 SCC 289 : 2022 INSC 1250 . 11. Shri Nadkarni further submitted that the learned Special Judge could not have taken cognizance for the offence punishable under Section 58 of the NDPS Act against the appellant in the absence of a valid sanction under Section 197 of the Cr.P.C. 12. Shri Nadkarni further submitted that the appellant is a highly meritorious officer, and she has received outstanding grading in her CRs and is also a recipient of the Presidential Medal. 13. The State has also supported the stand taken by the appellant. The State has also reiterated that the appellant was required to attend to an urgent law and order situation on account of the bomb blasts in Samjhauta Express and also the agitation. It fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus be seen that the reasons given by the learned Special Judge are that the present appellant and the other police officers have though exercised their powers under Sections 42, 43 and 44 of the NDPS Act, they were not exercised in a bona fide manner. The findings are beset with several legal infirmities pointed out hereinbelow. 17. We find that the judgment and order dated 22nd/24th February 2007 passed by the learned Special Judge so also the order dictated by the learned Special Judge on 30th May 2008 and kept it in a sealed cover to be pronounced by the successor of the learned Special Judge are unsustainable in law for more than one reason. Further, there has also been gross violation of principles of natural justice. a. Interpretation of the provisions of the NDPS Act and Cr.P.C.: 18. It will be relevant to refer to Section 36-A (5) of the NDPS Act, which reads thus: 36-A. Offences triable by Special Courts. (1) . (2) (3) . (4) .. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. 19. It will also be relevant to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be seen that the proceedings which were initiated by the learned Special Judge against the appellant were for the offence punishable for which the maximum sentence provided in the NDPS Act was up to two years. Section 36-A (5) of the NDPS Act which begins with the nonobstante clause provides that notwithstanding anything contained in the Cr.P.C., the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. It could thus be seen that even if the proceedings were to be initiated against the appellant for the offence punishable under Section 58 of the NDPS Act, the appellant was required to be tried summarily. 22. A bench of learned three Judges of this Court in the case of Tofan Singh (supra) was considering a question as to whether officers of departments other than the police, on whom the powers of an officer in charge of a police station under Chapter XIV of the Cr.P.C., have been conferred, are police officers or not within the meaning of Section 25 of the Evidence Act. This Court answered the question that the officers who are invested with powers under Section 53 of the NDPS Act are police officers within the meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority judgment has observed that under Section 36-A(1)(a) of the NDPS Act, it was only offences which were punishable with imprisonment for a term of more than three years that were exclusively triable by the Special Court. 24. It is thus clear that the statutory scheme, according to the provisions of Section 36-A(5) of the NDPS Act, prescribes that, for convicting a person under Section 58 of the NDPS Act, he/she must be tried summarily. 25. Section 260 of the Cr.P.C. provides that the power to try summarily is with any Judicial Magistrate, any Metropolitan Magistrate or any Magistrate of the first class specially empowered in this behalf by the High Court. Section 262 of the Cr.P.C. provides that the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned. A detailed procedure has been provided for trial of summons cases by the Magistrate under Section 251 to 259 of the Cr.P.C. 26. It is thus clear that the learned Special Judge could not have conducted the proceedings against the present appellant for the offence punishable under Section 58 of the NDPS Act inasmuch as such proceedings could have been conducted only by a Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 SC 1669] , Deena v. Bharat Singh [(2002) 6 SCC 336] and Goondla Venkateswarlu v. State of A.P. [(2008) 9 SCC 613 : (2008) 3 SCC (Cri) 829] ) 71. In Brijendra Singh v. State of U.P. [(1981) 1 SCC 597 : AIR 1981 SC 636] this Court while dealing with the issue held : (SCC p. 602, para 18) 18. The expression has several shades of meaning. In the popular sense, the phrase in good faith simply means honestly, without fraud, collusion, or deceit; really, actually, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme . (See Words and Phrases, Permanent Edn., Vol. 18-A, p. 91.) Although the meaning of good faith may vary in the context of different statutes, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for constituting good faith is conditioned by the context and object of the statute in which this term is employed. It is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour, light and content from the context. 72. For the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exemption while performing or discharging official duties and responsibilities. The act or the duty so performed are such for which an official stands excused by reason of his office or post. 76. It is for this reason that the assessment of a complaint or the facts necessary to grant sanction against immunity that the chain of events has to be looked into to find out as to whether the act is dutiful and in good faith and not maliciously motivated. It is the intention to act which is important. 30. It could be seen that this Court observed that anything done with due care and attention, which is not mala fide, is presumed to have been done in good faith. It has been observed that there should not be personal ill will or malice, no intention to malign and scandalise. It has been observed that good faith and public good are though a question of fact, they are required to be proved by adducing evidence. This Court held that as to whether the performance of duty acting in good faith either done or purported to be done in the exercise of the powers conferred under the relevant provisions can be protected under the immunity clause or not, would depend upon the facts of each case and ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers v. Babu Chakraborthy (2004) 12 SCC 201 : 2004 INSC 492 . In the said case, the accused persons were convicted for an offence punishable under the NDPS Act. In the appeal preferred by them, while allowing the appeal, the High Court made several strictures and observations against two officers of the West Bengal Police in an IPS Cadre. In the said case also, the allegations against the said officers were with regard to violation of provisions of Section 42 of the NDPS Act. This Court, after considering various earlier judgments, observed thus: 30. Replying to the arguments of Mr Viswanathan, Mr Tapash Ray, learned Senior Counsel submitted that the operating portion of the impugned judgment clearly brings out the perversity in the judgment. According to him, the strictures that have been passed against the appellants by the Division Bench of the High Court are wholly unjustified and are liable to be expunged. He is right in his submission. In our view, the High Court was not justified and correct in passing observations/strictures against Appellants 2 and 3 without affording an opportunity of being heard, and it is in violation of a catena of pronouncements of this Court that ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned Special Judge should not be construed as an expression of opinion on the merits of the matter. Immediately on the very next day of the passing of the said order of the High Court, the learned Special Judge proceeded to hear the matter at a lightning speed. Within 10 days, from 20th May 2008 to 30th May 2008, the learned Special Judge directed the matter to be heard on 7 dates. Though the transfer order was issued on 26th May 2008 and the learned Special Judge was directed to immediately relinquish the post/charge, the learned Special Judge again kept the matter on 27th May 2008, 28th May 2008, 29th May 2008 and finally on 30th May 2008. During the said period, the appellant was directed to supervise and ensure the maintenance of law and order inasmuch as the situation had deteriorated on account of some agitation. The same was also brought to the notice of the learned Special Judge. However, on 30th May 2008, the learned Special Judge proceeded to dictate and type the order and kept the same in a sealed cover. It is thus clear that the learned Special Judge had given a complete go-bye to all the principles of natural justice. 36. It is a well-settled principle of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: Well, even if the case had been properly conducted, the result would have been the same. That is mixing up doing justice with seeing that justice is done (per Lord Widgery, C.J. at p. 1375). 37. This Court, in the case of P.D. Dinakaran (I) v. Judges Inquiry Committee and Others (2011) 8 SCC 380 : 2011 INSC 452 has also observed thus: 41. In this case, we are concerned with the application of first of the two principles of natural justice recognised by the traditional English Law i.e. nemo debet esse judex in propria causa. This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Caesar's wife should be above suspicion. The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of interest, but of a challenge to the favour. Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be understood to say, that where there is a real bias of this sort this Court would not interfere; but in the present case there is no ground for doubting that the Justices acted perfectly bona fide; and the only question is, whether in strict law, under such circumstances, the certificate of such Justices is void, as it would be if they had a pecuniary interest; and we think that R. v. Dean and Chapter of Rochester [(1851) 17 QB 1] is an authority, that circumstances, from which a suspicion of favour may arise, do not produce the same effect as a pecuniary interest. CONCLUSION : 38. As already stated hereinabove, the matter went to the High Court in revision. The High Court, by the impugned judgment and order refused to interfere with the same and upheld the order dated 30th May 2008. The said impugned judgment and order was stayed by this Court vide order dated 26th October 2010. 39. When we opened the sealed cover on 24th October 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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