Holding

A search, seizure or arrest conducted by an officer not empowered under Sections 41(2) or 42(1) of the NDPS Act is per se illegal, vitiates the trial, and the proceedings must be quashed under Section 482 of the Criminal Procedure Code.

Summary

The appellant Roy V.D. was searched and arrested by an Excise Inspector who, at the time of the search, was not authorized under Sections 41(2) or 42(1) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act to make such a seizure. A charge was filed, later dismissed, and a fresh charge sheet was lodged, leading the appellant to seek quashing of the proceedings under Section 482 of the Criminal Procedure Code. The Supreme Court held that any search, seizure or arrest by an officer not empowered under the NDPS Act is per se illegal and cannot form the basis of a prosecution, thereby vitiating the trial. The Court affirmed that the High Court’s power under Section 482 is to prevent abuse of process and to secure the ends of justice. Consequently, the proceedings were quashed, and the appeal was allowed.

Issues considered

Whether a search, seizure and arrest carried out by an officer not empowered under Sections 41(2) or 42(1) of the NDPS Act is illegal and vitiates the trial.
Whether the High Court could decline to quash such proceedings and whether the Supreme Court may intervene under Section 482 CrPC.
Whether the illegal search infringes the right to life and liberty guaranteed under Article 21 of the Constitution.

Legislation cited

Code of Criminal Procedure, 1973s. 227, s. 482
Constitution of Indias. Article 21
Narcotic Drugs and Psychotropic Substances Act, 1985s. 36A, s. 41, s. 42

Subjects

NDPS Actillegal searchempowered officerSection 41Section 42Section 482abuse of processquash proceedingsArticle 21life liberty

Judgment

ROYV.D. A
v.
STATE OF KERALA

NOVEMBER I 0, 2000

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 41
and 42-Power of entry, search, seizure and arrest without warrant or
authorisation under-Scope of-Held, any collection of material, detention C
or arrest ofa person or search ofa building or conveyance or seizure effected
by an officer not being an empowered officer or an authorised officer under
Section 41 (2) of the Act, lacks sanction of law and is inherently illegal and
as such cannot form the basis of a proceeding in respect of offences under
Chapter JV of the Act and use of such material by the prosecution vitiates
~~ D
Criminal Procedure Code, 1973-Section 482- Jurisdiction of High
Court under-Prosecution started on an illicit material collected on search
and arrest which were per se illegal, vitiate not only the conviction and
sentence based on such material but also the trial itself--Held, in such a case
not quashing the proceedings would perpetuate abuse of the process of the E
court resulting in great hardship and injustice to the accused-Thus, exercise
of power under Section 482 to quash such proceedings would indeed secure
the ends of justice.

Constitution of India-Article 2 I-Rights under-Held, the life and p
personal liberty of an individual is so sacrosanct that it cannot be allowed
to be interfered with except under the authority of law -Further, Article 2 J
guarantees protection of life and personal liberty not only to citizens but
also to aliens.

The appellant was searched by the Excise Inspector and was taken into G
custody on the allegation of recovering of 'Ganja' from his possession. A
charge under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic
Substances Act (NDPS Act) was filed against the appellant by the Excise
Inspector on 20.02.1991, whereas the statutory notification under which he
became competent so to do was issued by the State Government on H
539
540 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A 20.10.1992. The appellant was discharged under Section 227 Cr. P.C. by the
Addi. Sessions Judge on 22.02.1993 on the ground that the Excise Inspector
was not authorised to file the charge sheet against the appellant. The Excise
Inspector filed a fresh charge sheet against the appellant on 17.05.1993. The
appellant filed a petition under Section 482 Cr. P.C. for quashing the entire
B fresh prosecution against him but the same was dismissed by the High Court
Hence this appeal.

It was contended by the appellant that on the basis of recovery of illicit
material on search and seizure made by an Excise Inspector, not authorised
under Section 41(2) or 42 (1) of the NDPS Act, no charge could have been
C laid against the appellant.

· It was contended by the State that the appellant could as well raise this
plea at his trial_ before the Sessions Court; and that when High Court declined
to quash the proceedings it would not be appropriate for the Supreme Court
to quash the proceedings.
D
Allowing the appeal the Court

HELD: 1.1 For exercising powers enumerated under sub-section (1) of
Section 42 of the NDPS Act at any time whether by day or by night, a warrant
of arrest or search issued by a Metropolitan Magistrate or a Magistrate of
E the first class or any Magistrate of the second class who has been especially
empowered by the State Government ,in that behalf or an authorisation under
sub-section (2) of Section 41 by an empowered officer, is necessary. Without
r!

such a warrant or an authorisation, an empowered officer can exercise those
powers only between sunrise and sunset. However, the proviso permits such
F an empowered or authorised officers to exercise the said powers at any time
between sunset and sunrise if he has reason to believe that such a search
warrant or authorisation cannot be obtained without affording opportunity
for the concealment of evidence or facility for the escape of an offender and
he records the grounds of his belief. 1547-B-CJ

G 1.2. No officer other than an empowered officer can resort to Section
41(2) or exercise powers under Section 42(1) of the NDPS Act or make a
complaint under clause (d) of sub-section (1) of Section 36A of the NDPS
Act. It follows that any collection of material, detention or arrest of a person
or search of a building or conveyance or seizure effected by an officer not
being an empowered officer or an authorised officer under Section 41(2) of
H the NDPS Act, lacks sanction of law and is inherently illegal and as such the
ROY V.D. ''·STATE OF KERALA, [SYED SHAH MOHAMMED QUADRI, J.] 54}.

- ·same cannot form the basis of a proceeding in respect of offences under A
Chapter IV of the NDPS Act and use·ofsuch a material by the prosecution

- vitiates the trial. (547-D-EI

State of Punjab v. Ba/bir Singh, [199413SCC299, relied on.

State of Punjab v. Baldev Singh, (1999 I 6 SCC 172, distinguished. B
"" 2. It is well settled that the power under Section 482 Cr. P.C. has to be
exerCised by the High Court, inter a/ia, to prevent the abuse of the process of
any court or otherwise to secure the ends of just~ce. Where criminal
proceedings are initiated based ?n illicit material collec~ed on search an~.
arrest which are per se illegal and vitiate not only a conviction and sentence C
based on such material but also the trial Itself, the proceedings cannot be
allowed to go on as it cannot but amount to abuse of the process of the court;
in such a case not quashing the proceedings would perpetuate the abuse of
the process of the court resulting in great hardship and injustice to the
accused. Exercise of power under Section 482 Cr. P.C. to quash proceedings D
in a case like the one in hand, would indeed secure the ends of justice.
(547-H; 548-A-BI

3. The life and liberty of an individual is so sacrosanct that it cannot be
allowed to be interfered with except under the authority of law. It is a principle,
which has been recognised and applied in all civilised countries. Article 21 E
of our Constitution guarantees protection of life and personal liberty not only
to citizens of India but also to aliens. [543-BI
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 967
of2000.

From the Judgment and Order dated 4.6.98 of the Kerala High Court in F
Cr!. M.C. No. 2417 of 1996.

Mukul Rohtagi, Additional Solicitor General, K. Sukumaran, T.L.V. Iyer,
Mahendra Anand, Varghese Kalliath, Jayanth Muthraj, KR. Shonker;
R.Ravindran, Ms. Baby Krishnan, C.S. Srinivasa Rao, ·Rajiv· Mehta, Romy G
Chako, M.T. George and G. Prakash for the appearing parties.

The Judgment of the Court was delivered by

SYED SHAH MOHAMMEU QUADRI, J. Leave to appeal is granted.
This appeal is directed against the order dated June 4, 1998 passed by H
542 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A the High Court of Kerala at Ernakulam dismissing Crl. M.C. No. 2417 of 1996
which was filed by the appellant praying the Court to quash proceedings in
Session Case No. 78 of 1993 on the file of Additional Sessions Judge,

B
Thodupuzha.

The appellant was searched by the Excise Inspector, Devikulam. On the
allegation of recovering 'Ganja' from his possession the appellant was taken
-
into custody on November 21, 1990. Under Section 20(b)(i) of Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act'), a charge
was laid against him by the Excise Inspector on February 20, 1991, whereas
the statutory notification under which he became competent so to do, was
C issued by the Government ofKerala in G.O. (MS) No. 168/92/TD, authorising
officers of and above the rank of Excise Inspectors of the Excise Department
to file complaints under Section 36A(l )(d) of the NDPS Act, on October 20,
1992. On the ground that the Excise Inspector was not authorised to file the
charge sheet against the appellant and, therefore, the complaint was not
maintainable, the appellant was discharged under Section 227 of Code of
D Criminal Procedure by the learned Additional Sessions Judge, Thodupuzha,
on February 22, 1993. The said Excise Inspector, Devikulam, however, filed a
fresh charge sheet against the appellant in Crime No.56 of 1990 for the very
same offence on May 17, 1993. The case was committed to the court of the
Additional Sessions Judge, Thodupuzha, and was numbered as Session Case
E No. 78of1993. The appellant filed Crl. M.C. No.2417of1996 before the High
Court of Kerala praying that the entire proceedings in Session Case No.78 of
1993 on the file of Additional Sessions Judge, Thodupuzha be quashed. By
the order under challenge the High Court dismissed the petition. Hence this
appeal.

F Mr. K. Sukumaran, the learned senior counsel appearing for the appellant,
contended that on the basis of recovery of illicit material on search and
seizure made by an Excise Inspector, not authorised under Sections 41 (2) or
42(1) of the NDPS Act, no charge could have been laid against the appellant
so the High Court ought to have quashed the impugned proceedings.

G Mr. Mukul Rohtagi, the learned Additional Solicitor General appearing
for the State/respondent, argued that the appellant could as well raise this
plea at his trial before the Sessions Court and when the High Court declined
to quash the proceedings it would not be appropriate for this Court to quash
the proceedings.

H On these contentions, the question that arises for consideration 1s
ROY V.D. ''·STATE OF KERALA, [SYED SHAH MOHAMMED QUADRI, .I.] 543
whether the impugned proceedings in Session Case No.78 of 1993 are liable A
to be quashed under Section 482 of the Criminal Procedure Code.

-. The life and liberty of an individual is so sacrosanct that it cannot be
allowed to be interfered with except under the authority of law. It is a principle
which has been recognised and applied in all civilised countries. In our
Constitution, Article 21 guarantees protection of life and personal liberty not B

---- only to citizens of India but also to aliens.

The ground on which the proceedings are sought to be quashed is that
search, seizure and the alleged recovery of 'Ganja' are all in violation of
Section 42(1) being by an Excise Inspector who was not empowered under C
Sections 4 I (2) of the said Act.

A reference to Sections 4 I and 42 of the NDPS will be apposite. They
read as under:

"41. Power to issue warrant and authorisation.-
D
(I) A Metropolitan Magistrate or a Magistrate of the first class or
any Magistrate of the second class specially empowered by the
State Government in this behalf, may issue a warrant for the
arrest of any person whom he has reason to believe to have
committed any offence punishable under chapter IV, or for the
search, whether by day or by night, of any building, conveyance E
or place in which he has reason to believe any narcotic drug or
psychotropic substance in respect of which an offence punishable
under Chapter IV has been committed or any document or other
article which may furnish evidence of the commission of such
offence is kept or concealed. p
(2) Any such officer of gazetted rank of the departments of central
excise, narcotics, customs, revenue intelligence of any other
department of the Central Government or of the Border Security
Force as is empowered in this behalf by general or special order
by the Central Government, or any such officer of the revenue, G
drugs control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special
order of the State Government, if he has reason to believe from
personal knowledge or information given by any person and
taken in writing that any person has committed an offence
punishable under Chapter IV or that any narcotic drug, or H
I
544 SUf>REME COURT REPORTS [2000] SUPP. 4 S.C.R.
" . ~ .

A , psychotropic substance In' respect of which any offence
punishable u~der Ch~pter IV has been committed or any document

--
or other art.icle which may furnish evidence of the commission of
such offence pas been kept or concealed in any -building,
conveyance or place, _may authorise any officer subordinate to
him but ~uperior in rank to a peon, sepoy, or a constable, to arrest
B . such a persorf or search a building, conveyance or place whether
by day or by night or himself arrest a person or search a building,
conveyance or place.
(3) The Officer to whom· a warrant u.nder sub- section ( l) is addressed
arid the officer who authorised the arrest or search or. the officer
c who is so· authorised under sub-section (2) shall have all the
powers of an officel' acting under Section 42.

42. Power of entry, search, seizur~ and arrest without warrant or
authorisation.-

D (I) Any such officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central excise,
' ' '
narcotics,
- .
customs, revenue intelligence or any other department of the
Central· Government or 'of the Border Security Force as is
empowered in this. behalf by general or special order by the
Central Government, or any such ·officer (being an officer superior
E in rank to a peon, sepoy or constable}- of the revenue, drugs
control, excis~, poi~ce or any other' Clepartment of a State
Government as is empowered irr th.is be-half by general or special
order of the--State Government; if he nas reason to believe -from .
personal knowledge or information· given- by any person and
F taken down in writing, that any narcotic drug, ~r psychotropic
substance, in respect of which an offence punishable under
Chapter IV has been committed or any docum-ent or other article
which may furnish e".'idence of the commission of such offence
is ·kept or concealed in any bu.ilding, conveyance -or ~nclosed ·
place, inay, between sunrise and sunset,-
G
• (a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door. and remove any
obstacle to suc.h entry; '

H (c) seize such ·drug or substance· and all materials used in the

'
ROY V.D. v. STATE OF KERALA, [SYED SHAH MOHAMMED QUADRI, J.] 545
manufacture thereof and any other article and any animal or A
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under Chapter IV
relating to such drug or substance; and
B
(d) detain and search, and if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or
subs!a~.ce: .

Provided that if~such officer has reason to believe that a search C
warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for the escape
of an offender, he may enter and search such building, conveyance
or enclosed place at any time between sun set and sun rise after
recording the grounds of his·belief. D
(2) Where an officer takes down any information in writing under sub-
section (I) or records grounds for his belief under the proviso thereto,
he shall forthwith send a copy thereof to his immediate official
superior."
E
Sub-section (I) of Section 41 of the NDPS Act enables a Metropolitan
Magistrate or a Magistrate of the first class or any Magistrate of the second
class who is especially empowered by the State Government in this behalf to
issue a warrant for the arrest of any person whom he has reason to believe
to have committed any offence punishable under chapter IV of the said Act.
Such a warrant may also be issued for the search of any building, conveyance F
or place in which he has reason to believe that any narcotic drug or
psychotropic substance in respect of which an offence punishable under
Chapter IV has been committed or any document or other article which may
furnish evidence of the commission of such offence is kept or concealed.
Arrest or search under a warrant issued in this provision can be made at any G
time whether by day or by night.

Sub-section (2) of Section 41 of the NDPS Act entitles any officer of
gazetted rank of the departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central Government or of the
Border Security Force who has been empowered in that behalf by general or H
546 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A special order of the Central Government, or any officer of the revenue, drugs
control, excise, police or any other department of a State Government as is
empowered in that behalf by general or special order of the State Government,
to arrest a person or search a building, conveyance or a place or to authorise
any officer subordinate to him but superior in rank to a peon, sepoy or a
B constable, to arrest such a person or search a building, conveyance or place
whether by day or by night.

Sub-section (3) of Section 41 of the NDPS Act says that the Officer to ..,.
whom a warrant under sub-section (I) is addressed and the officer who
authorised the arrest or search and the officer who is so authorised under
C sub- section (2) shall have all the powers of an officer acting under Section
42.

Sub-section (I) of Section 42 of the NDPS enumerates the powers of
any such officer as is specified therein and who is duly empowered by the
Central Government or the State Government, as the case may be. If he has
D reason to believe either from personal knowledge or on infonnation given by
any person and taken down in writing, that (a) any narcotic drug, or
psychotropic substance, in respect of which an offence punishable under
Chapter IV has been committed; or (b) any document or other article which
may furnish evidence of the commission of such offence is kept or concealed
in any building, conveyance or enclosed place, he may exercise the following
E powers, between sunrise and sunset. They are: (i) enter into any building and
search any such building, conveyance or place and if faced with any resistance,
break open any door and remove any such obstacle to such entry; (ii) seize:
(a) such drug or substance and other materials any other article or any animal
or conveyance which he has reason to believe to be liable to confiscation
under the Act and (b) any document or other article which he has reason to
F believe may furnish evidence of the commission of any offence relating to
such drug or substance; and (iii) detain and search and if he thinks proper,
arrest any person whom he has reason to believe to have committed any
offence punishable under Chapter IV relating to such drug or substance. The
proviso to sub- section {I) says that an empowered officer may also enter into
G any building, conveyance or enclosed place at any time between sunset and
sunrise if he has reason to believe that a search warrant or authorisation
cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender but in such a case before
so proceeding he is enjoined to record the grounds of his belief.

H Sub-section (2) of Section 42 contains a procedural directive to the
ROY V.D. t'. STATE OF KERA LA, (SYED SHAH MOHAMMED QUADRI, J.) 547

officer who takes down any information in writing under sub-section (I) or A
records grounds for his belief under the proviso thereto to send forthwith a
copy thereof to his immediate official superior.

It is thus seen that for exercising powers enumerated under sub-section
(I) of Section 42 at any time whether by day or by night a warrant of arrest
or search issued by a Metropolitan Magistrate or a Magistrate of the first B
class or any Magistrate of the second class who has been specially empowered
by the State Government in that behalf or an authorisation under sub-section
(2) of Section 4 I by an empowered officer is necessary. Without such a
warrant or an authorisation, an empowered officer can exercise those powers
only between sunrise and sunset. However, the proviso permits such an C
empowered or authorised officer to exercise the said powers at any time
between sunset and sunrise if he has reason to believe that such a search
warrant or authorisation cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escape of an offender and he
records the grounds of his belief.
D
Now, it is plain that no officer other than an empowered officer can
resort to Section 4 I (2) or exercise powers under Section 42( I) of the NDPS
Act or make a complaint under clause (d) of sub-section (I) of Section 36A
of the NDPS Act. It follows that any collection of material, detention or arrest
of a person or search of a building or conveyance or seizure effected by an
officer not being an empowered officer or an authorised officer under Section E
4 I (2) of the NDPS Act, lacks sanction of law and is inherently illegal and as
such the same cannot form the basis of a proceeding in respect of offences
under Chapter IV of the NDPS Act and use of such a material by the
prosecution vitiates the trial.
F
To the same effect is the view expressed by this Court in State of
Punjab v. BalbirSingh, [1994] 3 SCC 299. In para 13 Jayachandra Reddy, J.
speaking for the Court observed thus :

"Therefore, if ah arrest or search contemplated under Sections 41 and
42 is made under a warrant issued by any other Magistrate or is made G
by any officer not empowered or authorised, it would per se be illegal
and would affect the prosecution case and consequently vitiate the
trial."

It is well settled that the power under Section 482 of the Cr.P.C. has ta
be exercised by the High Court, inter alia, to prevent the abuse of the H
548 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A process of any court or otherwise to secure .the ends of justice. Where
·criminal proceedings are initiated based ondllicit material collected on search
and arrest which are per se illegal and vitiate not only a conviction and
sentence based on such material but also the trial itself, the proceedings
cannot be allowed to go on as it cannot but amount to abuse of the process
of the court; in such a case not quashing the proceedings would perpetuate
B abuse of the process of the court resulting in great hardship and injustice to
the accused. In our opinion, exercise of power under Section 482 of the Cr.P.C.
to quash proceedings in a case like the one on hand, would indeed secure
the ends of justice.

C The learned Additional Solicitor General, however, relying upon
conclusion No. 3 in para 57 of State of Punjab v. Baldev Singh, [ 1999] 6 SCC
172, contends that a search and seizure in' violation of Sections 41 & 42 of
the NDPS Act does not vitiate the trial but would render the recovery of illicit
article suspect and wou.ld only vitiate the conviction and sentence of the
accused if the conviction has been recorded solely on the basis of such illicit
D article, so the High Court was right in not quashing the proceedings. We are
afraid, we cannot accede to the contention of the learned Additional Solicitor
General. The conclusion, referred to above, may be extracted here :

"That a search made by an empowered officer, on prior information,
without informing the person of his right that if he so requires, he
shall be taken before a gazetted officer or a Magistrate for search and
in case he so opts, failure to conduct his search before a gazetted
officer or a Magistrate, may not vitiate the trial but would render the
r~covery of the ~illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has been recorded only
on the basis of the possession of the illicit article, recovered from his
F person, during a search conducted in violation of the provisions of
Section 50 of the Act.''

It may be noticed that conclusion was reached by the Constitution
Bench in the context of non-compliance of Section 50 of the NDPS Act. While
G 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 ~entence of an
accused. It is manifest that the recovery of illicit article in that case was by
H a competent officer but was in violation of Section 50 of the NDPS Act. In
ROY V.D. v. STATE OF KERALA, [S)'ED SHAH MOHAMMED QUADRI, J.] 549
the instant case, however, the search and recovery were by an officer who A
was not .empowered so to do. Further in Balbfr Singh's case (supra) 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 B
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.

. For the afore-ment,ioned reasons, we set aside the order of the High C
Court, allow Crl. M.C. No. 2417 of 1996 and quash the proceedings in Session
Case No. 78 of 1993 on the file of Additional Sessions Judge, Thodupuzha.
The appeal is thus· allowed.

RK.S. Appeal allowed.