NDPS Act | Officer Must Mandatory Record In Writing Reasons For Arrest/Search As Per S.41(2), Violation Will Vitiate Trial : Supreme Court

The Supreme Court recently (on April 09) overturned the conviction of the accused individuals under the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act), rejecting the interpretation of Section 41 (Power to issue warrant and authorization) put forth by the National Bureau of Narcotics.Imperatively, this Section empowers 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.” 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. In this context, the Court turned down the National Bureau of Narcotics's contention that there is no need to take down information when it arises from personal knowledge.“The learned Counsel of the Respondent No. 02 presents an alternate argument that the expressions “personal knowledge” and “and taken in writing” contemplated by Section 41(2) of the NDPS Act 1985 ought to be read disjunctively, thereby eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer. We are not inclined to accept this interpretation.,” the Court said.To bolster this finding, the Court also cited the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299. In this case, the Court had stressed on recording the reasons specifically when the empowered officer has a reason to personally believe that an offence under the act has been committed and a search is necessary between sunset and sunrise. The Court also went on to add in Balbir Sing, “To this extent, these provisions are mandatory, and contravention of the same would affect the prosecution case and vitiate the trial.”The facts of this case are such that one Krishna Chaube (Intelligence Officer/Inspector) had received secret information that Accused No. 04 would be carrying narcotic substances in an auto-rickshaw. She recorded the secret information and reported it to her superior officer, Pawan Singh Tomar. However, as per the prosecution's stance, the accused sped away at a high speed to escape from the raiding team. Thereafter, the team found the abandoned vehicle, though the accused had escaped. Eventually, the team conducted a search in the accused's house and arrested all the involved accused persons. The Trial Court convicted three accused persons and acquitted the remaining two. The High Court also did not interfere with the conviction. In this background, the case traveled to the Supreme Court.In the stream of observations, the Top Court also highlighted that 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. “From the aforementioned, we are of the view that the raid/search conducted at the house of the Accused No. 01 and Accused No. 04 was not based on the personal knowledge of Mr Tomar, rather it was an action on the part of raiding party bereft of mandatory statutory compliance of Section 41(2) of the NDPS Act 1985.,” the Court said. Pointing out these procedural discrepancies, the bench of Justices Aniruddha Bose and Augustine George Masih also recognised the statutory safeguards granted to the accused and how the authorities have failed to protect the same in the instant case. At the same time, the Court also reiterated that the power to search and seize is a mere temporary interference with the rights of the accused. This is due to the reasonable restrictions outlined within the provisions themselves. Thence, such a power cannot be considered as a violation of any fundamental rights of the person concerned., the Court added. Other Relevant Observations Of The Supreme Court While examining the facts of the case, the court referred to Section 6 of the Indian Evidence Act of 1872. This provision deals with the relevancy of facts forming part of the same transaction. To elaborate on this principle further, the Court relied upon the decision of Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh (1996) 6 SCC 241. In this case, the Court held that it was based on the spontaneity and immediacy of such statement or fact in relation to the fact in issue. However, if there was an interval...

NDPS Act | Officer Must Mandatory Record In Writing Reasons For Arrest/Search As Per S.41(2), Violation Will Vitiate Trial : Supreme Court

Gyanvi Khanna

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