Search & Seizure Provisions Of NDPS Act Do Not Affect Article 20(3) Of Constitution : Supreme Court
The Supreme Court recently (on April 09) observed that Article 20(3) of the Indian Constitution remains unaffected by the provisions of search and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act). Article 20 (3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself."In the instant case, we...
The Supreme Court recently (on April 09) observed that Article 20(3) of the Indian Constitution remains unaffected by the provisions of search and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act). Article 20 (3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself.
"In the instant case, we are primarily affected by virtue of the jurisprudence of Section 41(2) of the NDPS Act 1985, which begins from the power of search and seizure conferred by the State upon its executive or administrative arms for the protection of social security in any civilized nation. 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.” Justices Aniruddha Bose and Augustine George Masih marked in their judgment.
Elaborating on this aspect, the Division Bench also stated that the power to search and seize is a mere “temporary interference” with the rights of the accused. Reasoning this, the Court said reasonable restrictions to this power are outlined within the provisions themselves.
The court added: “Thence, such a power cannot be considered as a violation of any fundamental rights of the person concerned.” To support this observation, the Court also placed its reliance on MP Sharma v. Satish Chandra Sharma, District Magistrate, Delhi 1954 SCR 1077, which reiterated the same finding.
In the present case, the Court overturned the conviction of the accused individuals under the Act due to non-compliance with Section 41 by the competent authorities. Imperatively, this Section enables the competent officer to arrest or conduct a search.
To do so, the officer must have a reason to believe that an offence that requires a search has been committed. As per Section 41(2) of the Act, such reason to believe must arise either from personal knowledge of the said Officer or information given by any person to him. Additionally, such knowledge or information is required to be reduced into writing by virtue of expression “and taken in writing.”
However, in the present case, there was no written information, as stipulated under the Act, with the raiding party before it commenced the search in the accused house. The detailed facts of the case can be read here.
Apart from this, there were certain other significant loopholes in the case. For instance, when the search was conducted in the house of an accused, there was neither personal knowledge nor any other information. The information received by the officer who conducted the search was limited to the extent that an auto rickshaw was carrying contraband. Nevertheless, there was no indication of any possession of contraband in the accused's home that prompted the instant search.
In this context, the Court also went ahead and recognised the statutory safeguards granted to the accused and how the authorities failed to protect them in the instant case.
Bringing into light all the discrepancies in the case, the Court concluded that the search conducted in the present case was in violation of the statutory mandate of Section 41(2) of the Act.
“… the secret information, as received by Mrs Chaube in the present facts was limited to the apprehension that Accused No. 04 was to carry contraband via an auto rickshaw from a particular route. There is no reference to the apprehension of existence of contraband in the house of the Accused No. 04 in the said recorded information. Thence, the raid at the house of the Accused No. 01 and Accused No. 04 is in violation of the statutory mandate of Section 41(2) of the NDPS Act 1985…”
Accordingly, the Court gave the benefit of doubt to the accused persons and set aside the impugned judgments of their conviction.
Case Title: Smt. Najmunisha, Abdul Hamid Chandmiya alias Ladoo Bapu Vs. State of Gujarat, Narcotics Control Bureau
Citation : 2024 LiveLaw (SC) 298
Click here to read/ download the judgment