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Sarija Banu Vs. State Through Inspector Of Police
CITATION (2004)12SCC266
DATE OF JUDGEMENT26 February 2004  
COURTSupreme Court of India
APPELLANTSarija Banu
RESPONDENTState Through Inspector of Police
BENCHJustice K.G. Balakrishnan, B.N. Srikrishna

Introduction:

This case concerns itself with a violation of the appellants’ right to be released on bail pending trial for offenses under section 20(b)(ii)(c) and 25 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The appellants were involved in a criminal process after the police action that would reveal large quantities of narcotic products and large amounts of money. The appellants argue that the charges were falsely created and they have provided procedural irregularities in their apprehension and investigation. Issues set for determination include legal formalities under the NDPS Act and appellants’ detention; alleged violation of fundamental human rights through rigorous anti-drug regimens and injustice to the accused. From the judgement, it can be noted that the process requires a complex and individual consideration especially in cases of serious criminal charges and alleged procedural irregularities for bail to be granted under certain conditions.

Facts of the Case:

  1. On July 10, 2003, at 10:00 p. m., the police were informed by a Hagonuer CH1000 white Cruiser that drugs might be transported in a Hyundai Accent GLS car. Acting on this information, the police intercepted a car on Madurai Ring Road, Madurai, Chennai, it states very clearly that this service begins at 11: 00 p.m.
  2. As for the car, it was behind the wheels of an unidentified person only known as A-3 while the first appellant was a passenger in the car. The search operation in the car led to the arrest of two and the recovery of 5 kg of ganja and rupees ten lakhs in cash. The first appellant was arrested on July 10, 2003, precisely at 11:15 p.m.
  3. Based on a confessional statement from the first appellant, police searched for building No. 4/1078-A of Bharat Street, Anbu Nagar, Madurai, In detail, on 15 July 2003 at 15:00 hours. The second appellant was found residing in the house and was taken into custody at 1:15 a.m. Further investigations led to a search of house No. 486-C in Chennai, where different qualities of 10 kg ganja and 1,00,18,000/- in cash were seized.
  4. The appellants were prosecuted under Sections 20(b)(ii)(c) and 25 of the NDPS Act on account of being found in possession of narcotic drugs and for transporting the same without a license. Their bail application was initially rejected by the Sessions Court though they engaged the services of other legal firms. The appellants then sought bail under section 439 of the Cr. P. C. before the High Court in this case also the application was rejected.
  5. The appellants stated that the charges preferred against them were a fallacy. On July 10, 2003, at 1: 53 p.m. there was a telegram received from one Kandasamy informing several high-ranking officials of the appellant’s illegal confinement and safety concerns. This telegram was aired from Chennai and was accompanied by two affidavits of Kandasamy and two of the lawyers, contending that the police detained the suspects themselves and used unlawful procedures.
  6. Regarding the telegram, the prosecution did not controversy it; nonetheless, they could not trace Kandasamy. From the enticing part of this judgment, it appears that the police received the content of the telegram but lacked the courtesy of registering a case or investigation of the incidences that led to the appellants’ arrest. For instance, in the defense’s case, they affirmed that Section 42 of the NDPS Act, which deals with search and seizure procedures was gravely violated.
  7. The Supreme Court also acknowledged that there was no question that the telegram was sent, and no police intervention in relation to it. What was lacking in the High Court’s order was the fact that the court stressed on Section 42’s provision as obligatory in dealing with NDPS cases.
  8. Taking into account all the procedural violations and the special circumstances of the case, the Supreme Court provided multiple conditions for the appellants’ bail: deposits, restrictions on their movement, and mandatory daily visits to the police station.

Key Issue:

Did the police act ultra-vires the mandatory procedural provision of section 42 of the NDPS Act during the search and seizure operations, and if yes, should this fact of infringement of the provision vitiate the appellants’ right to bail?

Appellants’ Arguments:

  1. The appellants also claimed that the police concocted a case against them. This they said without any merit and assertively accused the white side of having conspired to impose charges on them.
  2. To support their claim of false charges, the appellants highlighted a telegram sent on July 10, 2003, at 1:53 p.m. by Kandasamy of the following: The telegram written was to: the home secretary, the governor, the commissioner of police, and the superintendent of police. The telegram alleged that the police party had tortured the appellants by illegally entering the house they occupied and had detained them, the appellant’s whereabouts are unknown subsequently there was fear for their lives.
  3.  When the bail application was before the High Court, Kandasamy who alleged to have sent the telegram filed an affidavit and also affidavits of two lawyers. These affidavits alleged that they got some information about the illegal detainment of the appellants and then reached Chennai with the help of advocates’ instruction of sending a telegram.
  4.  From the appellants’ observation, they noted that even though the telegram contained serious material, the police failed to file a case or carry out an investigation. This inactivity pointed out that the cops may have been trying to hush up their ore wrongdoings.
  5.  The accused also contended that there had been a complete violation of Section 42 of the NDPS Act regarding search and seizures. They claimed that compliance with Section 42 is compulsory and should have been considered when the court was dealing with the bail application. Another disadvantage was that the High Court had not paid attention to this violation.
  6.  They went on to argue that due to the procedural irregularities and a failure to adhere to legal provisions during the arrest of the appellants and the searches that followed the charges pressed against them were baseless.

Respondent’s Arguments:

  1. The respondents further asserted that the arrest of the appellants and the seizure of narcotic substances and cash legitimized under section 61 were properly conducted, because the police received credible information on July 10, 2003. The information provided was used in the crackdown on the Hyundai Accent GLS car in which the prohibited items were seized.
  2. The respondents pointed particularly to the recoveries made from the car, where 5 kg of ganja was seized besides Rs. 10 lakhs in cash. Besides, in connection with the confessional statement made by the same inspector, more search was made and 10 kg of ganja and Rs. 1,00,18,000 in cash were recovered from a house in Chennai. These discoveries corroborated the allegations against the appellants under the provisions of the NDPS Act.
  3.  From the responses, the respondents did not deny the fact that Kandasamy sent a telegram, but one was wondering whether it was so material to the case and two whether it was genuine. They noted that the whereabouts of Kandasamy were not known, which they said raised questions about the substance of the allegations contained in the telegram and the affidavits.
  4.  Admittedly, the police kept silent and did not register a case or commence an investigation at the back of the telegram; however, the respondents stressed that it did not mean that the police were corrupt. They said that such allegations as was contained in the telegram were unreliable and called for no action to be taken.
  5. The respondents noted that Section 37 of the NDPS Act lays down rigorous conditions that must be met before a person can be granted bail especially if the amount of narcotic drugs is large. They stated that the nature of the offenses and the quantity of the drugs which was seized were Stated that the seriousness of the charges and the amount of the bail of the drugs petition be refused bail.
  6.  In so far as Section 42 of the NDPS Act has been invoked as having been violated, these respondents voiced their arguments stating that it was unnecessary to discuss this matter over at the bail stage. They submitted that if there was any substance in such arguments, then the procedural infractions should be corrected at the trial stage and not at the bail stage.
  7. The respondents pointed out that it is of great concern to guarantee the appellants’ appearance during the trial. They were against reducing the chances of bail and amounted to the appellants being allowed to reside outside Tamil Nadu so that they could face the charges against them in court.

Court’s Judgement:

According to the legal provisions of the nation, having review both the parties’ arguments, the Supreme Court allowed the appellants to receive bail. The Court observed the procedural anomalies that occurred namely the absence of a police response to the telegram which claimed cases of unlawful confinement and the serious violation of Section 42 of the NDPS Act. Stressing the fact mentioned in Section 42 that it is mandatory to be complied with and although the High Court failed to consider it, yet the Supreme Court concluded that these factors entitled the appellants to be released on bail. The Court further ordered the appellants to mansion and execute a bail bond of Rs. 50,000 each with two solvent sureties, and subsequently stated the following conditions on their liberty and responsibility: Although the stay condition was met, the Court rejected the appellants’ application to go outside Tamil Nadu by stressing on the importance of their attendance during trial. The Special Judge was also directed to fast-track the trial. The Court’s decision brought out a scenario about the rigidity of the NDPS Act and the rights of the accused to a bail consideration.

Conclusion:

The decision of the Supreme Court to quash the certification of the police and admiralty officers as a party to the case and subsequently grant bail to the appellants is thus a principle applied that brings procedural compliance and fairness when dealing with serious criminal charges under the NDPS Act. Thus, the Court recognized the possible procedural violation and Section 42 requirements, as well as false charges supported by the telegram evidence to stand for justice and due process of law. The Court elaborated on acceptance of bail under certain conditions such as strict bail sureties and restricted freedom of movement stressing its concern for fulfilment of the appellant’s right to a fair trial. This case is a perfect example of the jurisdiction’s timely intervention to guarantee an individual’s rights while implementing strict legal measures to eliminate narcotics crimes.

REFERENCE

  1. https://indiankanoon.org

This Article is written by Priyal Saxena student of SVKM’S NMIMS Deemed-to-be-University; Intern at Legal Vidhiya.

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.


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