Apex Court refers to U.S. Supreme Court's landmark Miranda ruling highlighting balance between safety of people & state; acquits convicts in NDPS case
Justices Aniruddha Bose & Augustine George Masih [09-04-2024]

Read Order: SMT. NAJMUNISHA AND ORS v. THE STATE OF GUJARAT AND ORS [SC- CRIMINAL APPEAL NOS. 2319-2320 OF 2009]

Tulip Kanth 

New Delhi, April 15, 2024: While setting aside the conviction of the appellants-accused on account of inadmissibility of their statements under Section 67 of the NDPS Act 1985, the Supreme Court has observed that Article 21 of the Constitution necessitates a just and fair trial to be a humane and fundamental right.

The incident is of the year 1999 when an Intelligence Officer/Inspector received a secret information that the Accused No. 4 would be carrying narcotic substances in an auto rickshaw at about 7:00 AM on 11.12.1999 and shall be passing through one Shahpur Darwaja. The said secret information was recorded by her and reported to her superior officer (PW-3). The members of the raiding party arranged for and chased the said auto rickshaw which was eventually found abandoned near a road. On conducting the search of the said auto rickshaw, the raiding party found a driving license of one Shri Abdulgafar Gulamali Shaikh alias Rajubhai in addition to charas to the tune of 1.450 Kilograms.

As Accused No. 4 had run away, the raiding party eventually was led to his house wherein the Accused No. 1 was already present. Thereinafter, the son of Accused No.1 and Accused No.4 –Abdul Rajak (Accused No. 02) – came inquiring. Eventually the raiding party conducted a search of the said house and found a transparent plastic bag contained 2.098 Kilograms of charas. Thereafter, the necessary formalities were completed and Accused No. 1 and Accused No.2 were arrested. 

The criminal appeals before the Top Court arose out of a SLP assailing the Common Impugned Judgment of the Division Bench of Gujarat High Court moved by the Original Accused No. 1 (Najmunisha) and Original Accused No. 4 (Abdul Hamid Chandmiya) whereby their conviction stood affirmed, while the fine imposed on Accused No.1 was enhanced as aforementioned and the default sentence was reduced. 

It was the case of the appellant-accused that their statement recorded under Section 67 of the NDPS Act 1985 was not admissible and ought not to have been the basis of conviction. It was contended that there existed no secret information apropos the house wherein the subsequent search/raid was conducted by the raiding party. 

However, the respondent submitted that there had been substantial compliance of the statutory requirements under Section 42 as the Intelligence Officer/Inspector had recorded the secret information in writing and conveyed the same to her superior officer prior to the raid conducted.

At the outset, the Division Bench of Justice Aniruddha Bose Justice Augustine George Masih observed, “it is pertinent to refer to the heart and soul of the Constitution of India, 1950 (hereinafter referred to as Constitution of India) – Article 21 – necessitates a just and fair trial to be a humane and fundamental right and actions of the prosecution as well as the authorities concerned within the meaning of the NDPS Act 1985 must be towards ensuring of upholding of the rights of the accused in order to allow to have a fair trial. The harmonious balance between the Latin maxims salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) is not only crucial and pertinent but lies at the core of the doctrine that welfare of an individual must yield to that of the community subject to the State being right, just, and fair as was iterated in the decision of Miranda v. Arizona (1966) 384 US 436.”

The Bench opined that the attempt towards raiding/searching the residence of Accused No.4 was not explicitly in pursuance of detaining the said accused but the testimonies of the members of the raiding party showcased the idea of search of the house to be an afterthought with an admitted time gap of 40-45 minutes between having raided the auto rickshaw which was alleged to be abandoned by the driver and Accused No. 4 and subsequent search of the house of Accused No.4, wherein Accused No.1 was present. Moreover, it appeared from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance. 

The Bench came to the conclusion that the search conducted at the residence of the Accused No.4 was not a continuance of action of the raiding party towards the search of the auto rickshaw based on the secret information received by the Inspector. The Bench further observed that it did not transpire from the material on record as to exactly how the Accused No.4 came into the fiasco here except for the claim by the Superior Officer of having identified him as the auto rickshaw per the secret information fled the scene. It created a doubt in the mind of the Court apropos the case presented by the prosecution.

As per the Bench, the inconsistencies in the testimonies and lack of observation of due process of law by the investigating agency had severely impacted the case of the prosecution.

Referring to Section 41(2) of the NDPS Act 1985, which begins from the power of search and seizure conferred by the State upon its executive or administrative arms for the protection of social security in any civilized nation, the Bench observed that such power is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations. At the same time, it is not legitimate to assume that Article 20(3) of the Constitution of India would be affected by the provisions of search and seizure. As per the Bench, such a power cannot be considered as a violation of any fundamental rights of the person concerned. 

The Top Court noted that there was no prior information to the raiding party, including the Gazetted Officer that there was contraband in the house of Accused No. 4, thereby necessitating search for the same. There was no reference to the apprehension of existence of contraband in the house of the Accused No. 4 in the said recorded information and so, the raid at the house of the Accused No. 1 and Accused No. 4 was in violation of the statutory mandate of Section 41(2).

“Consequently, the conviction of Accused No. 01 premised on the recovery of 2.098 kilograms of charas from the house is not in consonance with the mandatory statutory compliance of Section 41(2) of the NDPS Act 1985”, the Bench held while also adding, “Accordingly, the authorities have further failed to protect the inherent rights granted to the Accused No. 01 by virtue of the statutory safeguards.”

Furthermore, referring to its judgment in Tofan Singh vs. State of Tamil Nadu wherein it has been opined that a statement recorded under Section 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act, the Apex Court opined that the benefit is to be granted to the appellants in regard to the inadmissibility of their statements under Section 67.

Thus, allowing the appeals, the Bench acquitted the appellants of the charges framed against them by giving benefit of doubt.