TaxTMI 
TaxTMI 
2002 (4) TMI 895
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....mentary legislation. The language used by the framers is unambiguous and categorical and it is in this perspective Article 33 may be noticed at this juncture. The said Article reads as below :- "33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. - Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to, - (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) persons employed in, or in connection with, the telecommunication system set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them." A plain reading thus would reveal that the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the f....
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....rt answered it in the affirmative since such procedural safeguards are said to be mandatory in nature. Adverting to the factual matrix presently under consideration, it appears that on a petition filed under Articles 226/227 of the Constitution of India, the respondent herein prayed for quashing of the charge-sheet, sentence of the General Court Martial, order of confirmation of General Officer Commanding and also to quash the trial of the General Court Martial. The facts of the matter however briefly are as below: The petitioner was serving the Indian Army having joined the same on 28.10.1976. He was posted to 18 Cavalry C/o 56 A.P.O. during the year 1990-91 at Patiala Cantt. He was residing with his family in a Government married accommodation being House No.255/30 K.S. Colony, Patiala Cantt. On 28.12.1991 a search of his residence was conducted by Army Officers/Officials and allegedly opium weighing 4.900 Kgs. was recovered from his family quarter. The petitioner was thereafter placed under Arrest in military custody and was put in the quarter guard of his unit aforesaid and F.I.R. No.378 was lodged at Police Station....
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....ed in this behalf by warrant of [the Chief of the Army Staff]." Having outlined the factual score as above and upon noting of the two several provisions of the Army Act, it would be worthwhile to note Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Needless to record that the petitioner was tried under Section 69 of the Army Act for an offence punishable under Section 18 of the NDPS Act the trial did take place before a General Court Martial and conviction and sentence was also passed therein. It is this sentence and conviction which stands challenged in the writ petition moved before the High Court, as noticed above. The NDPS Act admittedly contains certain safeguards and the law reports are replete with case laws pertaining to these safeguards. Dilution of the safeguards as prescribed in the statute has strongly been criticised and negated and the same were ascribed to be strictly mandatory in nature. The issue thus : whether by reason of the respondent being a member of the Armed Forces would stand denuded of such a safeguard in the event the General Court Martial takes note of an offence under a specific statute. Article 33 of the Constituti....
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.... an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset :- (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 such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing of forfeiture under Chapter VA of this Act; and (d) detain and search and, if he thinks proper arrest any person ....
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....he Constitution Bench of this Court in Baldev Singh (State of Punjab v. Baldev Singh (1999) 6 SCC 172) has the following to state : "24. There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. 25. To be searched before a Gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuab....
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....sions (in particular Sections 41 and 42) the submission as above cannot but be termed as it has been inevitable and inescapable. A recent decision of this Court in Roy V.D. v. State of Kerala (2001 SCC (Cri) 42) however, lends credence to conclusion as above since this Court as a matter of fact dealt with the true purport of Sections 41 and 42 of the NDPS Act. The felicity expression as contained therein, however, prompts us to note the same in extenso as below :- "15. It is thus seen that for exercising powers enumerated under sub-section (1) 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 Class or any Magistrate of the Second Class who has been specifically 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 such a warrant or an authorisation, an empowered officer can exercise those powers only between sunrise and sunset. However, the proviso permits such an empowered or authorised officer to exercise the said powers at any....
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....eing a 'person' belonging to the Armed Forces, question of usual formalities as regards the procedural aspect under NDPS Act would not arise, as such infraction of Section 42 of the NDPS Act cannot be said to be of any consequence : On the second count it has been the definite contention that since Section 50 specifically records "about to search any person" and since the contraband item has been in fact recovered from the private residence of the respondent herein, Section 50 cannot be said to be of any application. It is on this score the charge-sheet, though not included in the paper book, but upon leave of the Court, was produced and placed reliance upon in support of the appeal. We also deem it fit and convenient to note the charge-sheet herein below :- "CHARGE SHEET The accused No 1059403N LD (Subs) Balam Singh of 18 Cavalry, attached to 64 Cavalry is charged with :- Army Act COMMITTING A CIVIL OFFENCE, THAT IS TO Section 69 SAY, POSSESSING OPIUM IN CONTRAVENTION OF SECTION 18 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 in that he, at Patiala on 28 Dec 91 was found in illegal possession of 4 kgs and 900 grams of opium. Place : Patiala Sd/ x x x x Date : ....