https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=763298 https://www.taxtmi.com/caselaws?id=763298 Proceedings initiated against the appellant for the offence punishable under Section 58 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Interpretation of the provisions of the NDPS Act and Cr.P.C. - Good Faith - Violation of Principles of Natural Justice - recovery of opium. Interpretation of the provisions of the NDPS Act and Cr.P.C. - HELD THAT:- A perusal of sub-section (1) of Section 58 of the NDPS Act would reveal that if any person empowered under Section 42 or Section 43 or Section 44, who, without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place, or vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under the Act, or of seizing any document or other article liable to be seized under Section 42, Section 43 or Section 44; or vexatiously and 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 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 meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. It is 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 - It is 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 Magistrate. Undisputedly, the procedure as required under Chapter XX i.e. Sections 251 to 256 of the Cr.P.C. has also not been followed. Good faith - HELD THAT:- Section 69 of the NDPS Act provides immunity to the Central Government, State Government or any officer of the Central or State Government or any other person exercising any powers or discharging any functions or performing any duties under this Act or any rule or order made thereunder from civil or criminal proceedings. 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 cannot be a subject matter of any hypothesis. It has been held that for availing such immunity, the act has to be official and not private - It has been held that the presumption of good faith therefore could be dislodged only by cogent and clinching material and so long as such a conclusion was not 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 guilty of the offence punishable under Section 58 of the NDPS Act - the learned Special Judge had given a complete go-bye to all the principles of natural justice. It is a well-settled principle of law that justice should not only be done but should be seen to be done. 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 - The judgment and order dated 14th October 2010 passed by the High Court in Criminal Revision No. 2194 of 2008 is quashed and set aside - Appeal allowed. Case-Laws Indian Laws Fri, 13 Dec 2024 00:00:00 +0530