Significance of Procedural Laws

Dec 15, 2020

Drugs are the substances that cause a change in the physical and psychological condition of a person. Countries across the world have various laws on illegal supply, production, transportation, purchase, sale and consumption of drugs. In India, activities about the drug are governed, controlled, and regulated by the Narcotic and Drugs and Psychotropic Substances Act, 1985 (the Act). Chapter IV and V of the Act are vital, as it laid down the punishments for contravention of several factors, illegal import-export, illicit financing and so on. The officer, irrespective of Central or State Government, has to obey or undertake the search procedure as given in Chapter V of the Act, and failure to which diminishes the chances of the Accused to be punished under the Act. The nearly identical issue arose before the Supreme Court (SC) in The State of Punjab vs Baljinder Singh & Anr, where SC has analytically interpreted Section 50 of the Act, by quoting the decisions given by itself.

The incident happened on 19.8.2009 when some police officers saw a Qualis car coming from Ambala. The police saw the car, and on a suspicious note, they stopped the car. The police informed Mr Baljinder Singh of their right to get the search conducted in the presence of a Magistrate or gazetted Police Officer. Further, on bilateral consent, police searched the vehicle; subsequently, recovered and seized the seven bags of 34 kgs each, containing poppy husk. The police have arrested Mr Baljinder Singh and Khushi Khan under Section 15 of the Act. The Special Court, Patiala, on its judgment dated 08.09.2011 has convicted both under Section 15 of the Act. In the appeal, the Learned High Court of Punjab and Harayana (HC) observed that the provisions of Section 50 of the Act were violated by police, as the personal search was not conducted before the Magistrate. Aggrieved with the order of the HC, the State of Punjab has filed Criminal Appeal No.1565-66 of 2019 before SC.

The significant issue before SC about the non-compliance of Section 50 of the Act and whether Section 50, apart from personal search, would be applicable for the search of bags, vehicles etc.? The counsel for Mr Baljinder Singh, taking the reference of Dilip & Anr vs the State of MP., argued that the benefit should extend in favour of Mr Baljinder Singh for violation of Section 50 of the Act. The SC, for answering the above mentioned issue, considered the case of State of Punjab vs Baldev Singh, where the constitution bench has already considered the nearly identical issue.

The Constitutional bench observed that the authorised or empowered police personnel must inform the suspect about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate. Failure to which, perhaps not spoil the trial but could be able to spoil the case based on the illicit articles recovered as a piece of evidence and may spoil the conviction and sentence of the accused person. The bench further observed that the investigating agencies must strive to follow the procedural laws for conducting just and fair trial against accused, the conviction in consequence of non-compliance of procedural laws is completely unjust. Further, it is also observed that seizure of the articles, by way of non-compliance of Section 50 of the Act or other procedural laws, would be treated as illicit articles by unlawful recovery and would not amount as a piece of evidence. The reliance of other SC case Ajmer Singh vs the State of Haryana, the SC observed, Section 50 of the Act expressly speaks about personal search and not the search of bags, vehicle, briefcase, container, etc. Therefore, the poppy hustle recovered from the bags after searching the car and not by personal search of Mr Baljinder Singh does not fall within the ambit of Section 50 and no benefit extended to Mr Baljinder Singh. The SC, by allowing the appeal, set aside the order of HC and convicted Mr Baljinder Singh and Khushi Khan and sentenced those ten years of rigorous imprisonment and payment of fine.

Dealing with such crucial issues and minute wordings, the SC has conferred the significance of interpretation. The word personal in Section 50 has restricted its scope and ambit to the searching of a person only. Thus, under Section 50 of the Act, police can search for bags, vehicles, etc. without the presence of a Magistrate or Gazetted Officer. Compliance of procedural laws by investigating authorities is a vital part of conducting just and fair trial, failure could consequent as a defeat of the concept of justice.