February 12, 2019
In this recent case, the High Court of Kerala emphasized on the need of observing statutory safeguards under the NDPS Act by the detecting officers. The Court opined that when the mandatory formalities under the Act are breached, it would result in travesty of justice.
Case name: Basanth Balram v. State of Kerala
The appellants in the case have been accused for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). The Appellants herein have challenged their conviction on the ground that very search and seizure and provisions of the NDPS Act had been blatantly violated by the concerned officers.
In view of materials available on record, the High Court of Kerala granted bail to the appellants. While granting bail, the Court was of the view that when applicants are able to show that there are materials to suspect the very seizure and the provisions of the Act have been blatantly violated. The Court additionally made the following observations in the case and highlighted the substantial need of observance of statutory safeguards by detecting officers.
- While elucidating on the object of NDPS Act, the Court observed that when the inbuilt safeguards are violated with impunity and when the mandatory formalities are breached, it would result in travesty of justice to leave the question of their compliance to be looked into only at the stage of trial.
- That the object of the Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided, which in the context, have to be observed strictly.
- That the legislature envisaged that the provisions are to be strictly observed to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law-enforcement agencies. It would thus be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted officer or a Magistrate and the procedure contemplated under the Act are to be strictly followed.
- That the failure to comply with the provisions of NDPS Act would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.
- That the safeguards provided under the Statute is to ensure that persons are searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. Very severe punishment are provided under the Act for mere possession of illicit drugs and narcotic substances. Personal search is a critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously.
- A procedure based on systematic and unconscionable violation of law by the official responsible for the enforcement of law cannot be considered to be a fair, just or reasonable procedure. As held by the Apex Court, the more severe the punishment, greater has to be the care taken to ensure that all the safeguards provided in a statute are scrupulously followed.
Hence, in view of the aforesaid observations, the Court noted that in the instant the statutory safeguards were not at all observed by the detecting officer, thereby entitling the appellants to be released on bail.