ROY V.D. versus STATE OF KERALA

Citation: [2000] SUPP. 4 S.C.R. 539 · Decided: 10-11-2000 · Supreme Court of India · Bench: S.S.M. QUADRI · Disposal: Appeal(s) allowed

Judgment (excerpt)

ROYV.D. 
A 
v. 
STATE OF KERALA 
NOVEMBER I 0, 2000 
[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] 
B 
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 41 
and 42-Power of entry, search, seizure and arrest without warrant or 
authorisation under-Scope of-Held, any collection of material, detention C 
or arrest of a person or search of a building or conveyance or seizure effected 
by an officer not being an empowered officer or an authorised officer under 
Section 41 (2) of the Act, lacks sanction of law and is inherently illegal and 
as such cannot form the basis of a proceeding in respect of offences under 
Chapter JV of the Act and use of such material by the prosecution vitiates 
~~ 
D 
Criminal Procedure Code, 1973-Section 482- Jurisdiction of High 
Court under-Prosecution started on an illicit material collected on search 
and arrest which were per se illegal, vitiate not only the conviction and 
sentence based on such material but also the trial itself--Held, in such a case 
not quashing the proceedings would perpetuate abuse of the process of the E 
court resulting in great hardship and injustice to the accused-Thus, exercise 
of power under Section 482 to quash such proceedings would indeed secure 
the ends of justice. 
Constitution of India-Article 2 I-Rights under-Held, the life and p 
personal liberty of an individual is so sacrosanct that it cannot be allowed 
to be interfered with except under the authority of law -Further, Article 2 J 
guarantees protection of life and personal liberty not only to citizens but 
also to aliens. 
The appellant was searched by the Excise Inspector and was taken into G 
custody on the allegation of recovering of 'Ganja' from his possession. A 
charge under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic 
Substances Act (NDPS Act) was filed against the appellant by the Excise 
Inspector on 20.02.1991, whereas the statutory notification under which he 
became competent so to do was issued by the State Government on H 
539 
540 
SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R. 
A 20.10.1992. The appellant was discharged under Section 227 Cr. P.C. by the 
Addi. Sessions Judge on 22.02.1993 on the ground that the Excise Inspector 
was not authorised to file the charge sheet against the appellant. The Excise 
Inspector filed a fresh charge sheet against the appellant on 17.05.1993. The 
appellant filed a petition under Section 482 Cr. P.C. for quashing the entire 
B fresh prosecution against him but the same was dismissed by the High Court 
Hence this appeal. 
It was contended by the appellant that on the basis of recovery of illicit 
material on search and seizure made by an Excise Inspector, not authorised 
under Section 41(2) or 42 (1) of the NDPS Act, no charge could have been 
C laid against the appellant. 
D 
· It was contended by the State that the appellant could as well raise this 
plea at his trial_ before the Sessions Court; and that when High Court declined 
to quash the proceedings it would not be appropriate for the Supreme Court 
to quash the proceedings. 
Allowing the appeal the Court 
HELD: 1.1 For exercising powers enumerated under sub-section (1) of 
Section 42 of the NDPS Act at any time whether by day or by night, a warrant 
of arrest or search issued by a Metropolitan Magistrate or a Magistrate of 
E the first class or any Magistrate of the second class who has been especially 
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 
r! 
such a warrant or an authorisation, an empowered officer can exercise those 
powers only between sunrise and sunset. However, the proviso permits such 
F an empowered or authorised officers to exercise the said powers at any time 
between sunset and sunrise if he has reason to believe that such a search 
warrant or authorisation cannot be obtained without affording opportunity 
for the concealment of evidence or facility for the escape of an offender and 
he records the grounds of his belief. 1547-B-CJ 
G 
1.2. No officer other than an empowered officer can resort to Section 
41(2) or exercise powers under Section 42(1) of the NDPS Act or make a 
complaint under clause (d) of sub-section (1) of Section 36A of the NDPS 
Act. It follows that any collection of material, detention or arrest of a person 
or search of a building or conveyance or seizure effected by an officer not 
being an empowered officer or an 

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