Delve into the details of the State v. Accused No. 01( Smt. Najmunisha), 04(her husband), and 05(Nazir Ahmed alias Nazir Bazara) case, where multiple parties were involved in drug trafficking activities. The case involves the compliance with statutory requirements of the NDPS Act 1985, leading to convictions and acquittals. This blog explores the significance of confessional statements and procedural safeguards in ensuring a fair trial for all parties involved.
Facts
- Accused No 04 was reported to be carrying narcotics in an auto rickshaw on 11.12.1999 at 07:00 AM.
- Accused No 01 was involved in aiding drug trafficking conducted by Accused No 04.
- During a raid, charas was found in the possession of Accused No 01 and Accused No 02.
- Accused No 04 confessed to transporting and selling contraband to Accused No 05.
- Accused No 04 managed to escape despite attempts to stop the auto rickshaw he was in.
- The raiding party found additional contraband in the abandoned auto rickshaw linked to Shri Abdulgafar Gulamali Shaikh.
- Accused No 01, Accused No 04, and Accused No 05 were convicted while Accused No 02 and Accused No 03 were acquitted.
- The raid was carried out based on a secret information received by Mrs. Krishna Chaube, reported to Mr. Pawan Singh Tomar.
- Accused No. 05 was convicted under Section 20(b)(ii)(a) of the NDPS Act 1985 and sentenced to six months of rigorous imprisonment with a fine of INR 5,000/-
- Appeals by Accused No. 01 and Accused No. 04 were affirmed by the High Court of Gujarat, with an enhanced fine for Accused No. 01
- Accused No. 05 did not prefer any appeal
- The High Court acquitted Accused No. 02 due to lack of evidence, but affirmed the case against Accused No. 01 and Accused No. 04
- The joint possession of a house by Accused No. 01 and Accused No. 04 was established through witness testimonies and confessional statements
- The High Court found no infirmity in the handling and documentation of evidence by the prosecution
- The statements of Accused No. 01 and Accused No. 04 were deemed voluntary and without coercion, leading to their conviction
- The High Court noted compliance with various sections of the NDPS Act 1985 in conducting the raid and subsequent legal procedures
Also Read: Mrs. Original Name vs. Petitioner Legal Dispute
Arguments
- The raiding party conducted a search at the house of Accused No 04 in light of the ratio in Karnail Singh (supra), emphasizing substantial compliance over literal compliance.
- The search at the residence of Accused No. 04, where Accused No 01 was also present, was in continuation of the action based on secret information recorded by Mrs. Chaube.
- The contention regarding admissibility of statements recorded under Section 67 of the NDPS Act 1985 is raised, with reference to decisions such as Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1.
- The learned Counsel argues that the personal knowledge of the Gazetted Officer eliminates the need to take down information in writing as per Section 41(2) of the NDPS Act 1985.
- An emergent situation arose during action against Accused No 04, justifying the search at his nearby house to prevent his escape or potential removal of additional contraband.
- The scope of Section 50 of the NDPS Act 1985 is limited to the search on the person of an individual and does not include adherence to the search made on any premise(s).
- Presence of a Gazetted Officer is required only at the time of the search which is on the person and is not applicable during search of premises.
- Section 42(1)(a) of the NDPS Act 1985 comprehends search of a building, conveyance, or place, while Section 42(1)(d) contemplates for search of a person.
- Recovery of contraband from an individual raises a rebuttable presumption under Section 54 of the NDPS Act 1985 that the individual has committed an offence.
- Possession of contraband includes constructive possession as held in the case of Madan Lal v. State of Himachal Pradesh (2003) 7 SCC 465.
Also Read: Chandu v. Sankaran: Legal Battle Over Property Rights
Analysis
- Compliance with Section 42(2) of the NDPS Act 1985 is essential before conducting a search or raid.
- The Amendment Act of 2001 relaxed the requirement of sending the copy of the writing to the immediate official superior ‘forthwith’.
- The testimonies of the raiding party members indicate a lack of compliance with Section 41(2) regarding authorization.
- The High Court emphasized the voluntary nature of the accused’s statements, which were corroborated by evidence, leading to their conviction.
- The raiding party did not have written information for conducting the raid at the accused’s house, violating statutory requirements.
- The absence of search warrant, authorization, and grounds for the search raises doubts about the legality of the search conducted between sunset and sunrise.
- The contradictions in the prosecution witnesses’ statements cast doubt on the credibility of the case presented.
- The raid at the accused’s house was not based on personal knowledge of the Gazetted Officer, violating statutory mandates.
- The search at the accused’s residence was an afterthought, not a continuation of the action based on secret information.
- The lack of compliance with statutory safeguards and procedural requirements raises issues regarding the fair trial rights of the accused.
- The statutory provisions conferring authorities with the power to search and seize are well-regulated by reasonable restrictions.
- The general search warrants and seizure provisions were incorporated in the Code of Criminal Procedure.
- Section 41(1) of the NDPS Act 1985 empowers a Magistrate to issue search warrants for arrest or search of individuals suspected of committing offenses under the Act.
- The NDPS Act 1985 aims to curb the drug menace in the country.
- Key provisions to consider are Sections 41, 42, and 67 of the NDPS Act 1985.
- Section 6 of the IEA 1872 relates to the relevancy of facts forming part of the same transaction.
- Compliance with Section 42 of the NDPS Act 1985 is essential and requires literal or substantial compliance.
- Delayed compliance can be acceptable with a satisfactory explanation for the delay.
- The non-compliance of statutory requirements under the NDPS Act 1985 can lead to the vitiation of a criminal trial.
- The principle of acts forming part of the same transaction is significant in legal proceedings.
- Failure to record information received or send a copy to the official superior may not be treated as a violation of Section 42 in urgent situations.
- In cases where there is sufficient time to take action, failure to record information or inform the official superior is a clear violation of Section 42.
- Delayed compliance with satisfactory explanation for the delay is acceptable under Section 42.
- Section 41 of the NDPS Act 1985 empowers Magistrates and Gazetted Officers to issue warrants for arrest or search in relation to offenses under the Act.
- Confessional statements recorded under Section 67 of the NDPS Act 1985 have evidentiary value.
- The power to search and seize under the NDPS Act is limited by constitutional and statutory provisions.
- The grounds for belief must arise from personal knowledge or information taken in writing by the Gazetted Officer.
- A warrant for arrest may be issued by a Magistrate if there is reason to believe that an offense under Chapter IV has been committed.
- Statements recorded under Section 67 of the NDPS Act cannot be used as confessional statements in the trial of an offence under the NDPS Act.
- The benefit of inadmissibility of statements under Section 67 of the NDPS Act 1985 is to be granted to the appellants based on the decision in Tofan Singh case.
- Officers with powers under Section 53 of the NDPS Act are considered ‘police officers’ under Section 25 of the Evidence Act.
- Confessional statements made to such officers are barred under Section 25 of the Evidence Act and cannot be used to convict an accused under the NDPS Act.
Also Read: Laxmanrao vs. Vitthalrao Legal Case
Decision
- The appeals are allowed by setting aside the impugned judgment of the High Court and Trial Court.
- Pending applications, if any, are disposed of.
- The appellants are acquitted of the charges against them due to benefit of doubt.
Case Title: NAJMUNISHA ETC. Vs. THE STATE OF GUJARAT (2024 INSC 290)
Case Number: Crl.A. No.-002319-002320 / 2009
