The Aryavarth Express
Agency (New Delhi): The Supreme Court has allowed the criminal appeals of Smt. Najmunisha and Abdul Hamid Chandmiya alias Ladoo Bapu, setting aside the judgments of the Gujarat High Court and Trial Court which had convicted them under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The case arose from a raid conducted by the Narcotics Control Bureau (NCB) on December 11, 1999, based on secret information that Accused No. 4, Abdul Hamid Chandmiya, would be transporting narcotic substances in an auto rickshaw. During the raid, the auto rickshaw sped away and was later found abandoned with 1.450 kg of charas. The NCB then raided the house of Accused No. 4, where his wife Accused No. 1 Smt. Najmunisha was present, and recovered 2.098 kg of charas.
The Trial Court convicted Accused No. 1 and 4 under Sections 20, 25 and 29 of the NDPS Act. The Gujarat High Court affirmed their convictions, relying on the accused’s confessional statements under Section 67 of the Act and holding that there was substantial compliance with statutory requirements under Section 42.
However, the Supreme Court noted several discrepancies in the prosecution’s case. It found that the search of the house was not a continuation of the action based on the secret information about the auto rickshaw. There was a time gap of 40-45 minutes, and the idea to search the house appeared to be an afterthought to recover more contraband rather than to apprehend the absconding accused.
The Court held that the search was not based on the personal knowledge of the officer as required under Section 42(1) of the NDPS Act. Relying on its judgments in “State of Punjab v. Balbir Singh” and “Karnail Singh v. State of Haryana”, the Court reiterated that the officer must record the grounds of his belief before conducting a search without a warrant. The NCB’s failure to do so vitiated the search of the house and the conviction of Accused No. 1 based on the recovery made.
The Court also found fault with the prosecution’s failure to follow the mandatory requirements under Section 41(2) of the NDPS Act, which requires the officer to take down information in writing when it forms the basis for a search. As the secret information was limited to the auto rickshaw and did not mention the house, the search of the house was illegal.
Further, relying on its constitution bench judgment in “Tofan Singh v. State of Tamil Nadu”, the Supreme Court held that confessional statements recorded under Section 67 of the NDPS Act are inadmissible as evidence. The Court clarified that the powers under Sections 41, 42 and 67 are limited to entry, search, seizure and arrest, and do not extend to investigation. Statements recorded are not confessional in nature and cannot be used to convict the accused.
Accordingly, the Supreme Court set aside the convictions of the two accused by giving them the benefit of doubt. The judgment underscores the importance of strict compliance with statutory safeguards and procedures under the NDPS Act to protect the rights of the accused and ensure a fair trial. It also settles the law on the admissibility of statements made to officers under the Act during the investigation.
