Summary
The Supreme Court quashed adverse observations and Section 58 NDPS Act proceedings initiated by a Special Judge against a former Superintendent of Police, holding that an offence under Section 58 carrying at most two years' imprisonment is to be tried summarily by a Magistrate under Section 36-A(5), that her acts of forwarding a representation for inquiry were protected by the good-faith immunity in Section 69, and that the findings were recorded without notice in gross breach of natural justice.
Issues
- Whether a Special Judge could conduct proceedings against a police officer for an offence under Section 58 of the NDPS Act, given Section 36-A(5).
- Whether the officer's actions were protected by Section 69 of the NDPS Act as acts done in good faith.
- Whether recording adverse findings and conducting Section 58 proceedings without notice or fair hearing violated the principles of natural justice.
Provisions considered
- Section 58, Narcotic Drugs and Psychotropic Substances Act, 1985Section 58(1) punishes vexatious entry, search, seizure or arrest by officers empowered under Sections 42 to 44 with up to six months, and Section 58(2) wilful and malicious false information causing arrest or search with up to two years. The notice issued covered both sub-sections, so the maximum sentence was two years. (¶¶ 15, 16, 19, 20, 21)
- Section 36-A(5) and Section 36-A(1)(a), Narcotic Drugs and Psychotropic Substances Act, 1985Section 36-A(5), with its non obstante clause, provides that offences punishable with imprisonment up to three years may be tried summarily; relying on Tofan Singh v. State of Tamil Nadu that only offences punishable with more than three years are exclusively triable by the Special Court, the Court held a Section 58 proceeding had to be tried summarily. (¶¶ 18, 21, 22, 23, 24)
- Sections 251 to 262, Code of Criminal Procedure, 1973Summary trial lies with the Magistrates named in Section 260 and follows the summons-case procedure under Section 262; the Special Judge could not conduct the Section 58 proceeding, and the summons-case procedure was not followed. (¶¶ 25, 26)
- Section 69, Narcotic Drugs and Psychotropic Substances Act, 1985Section 69 bars suits, prosecutions and other proceedings against officers for anything done in good faith under the Act. Applying General Officer Commanding, Rashtriya Rifles v. CBI, good faith is presumed for official acts done with due care and without malice and can be displaced only by cogent material. (¶¶ 27, 28, 29, 30, 31)
- Section 3(22), General Clauses Act, 1897The definition of good faith as a thing done honestly, whether negligently or not, as explained in the Rashtriya Rifles decision, was relied on in construing Section 69. (¶¶ 29, 30)
Held
- Since the maximum punishment for an offence under Section 58 of the NDPS Act is two years, the statutory scheme of Section 36-A(5) requires it to be tried summarily, and only a Magistrate empowered under Section 260 CrPC following the summons-case procedure could try it; the Special Judge had no power to conduct the proceedings, and the prescribed procedure was not followed. (¶¶ 21, 24, 25, 26)
- Section 69 of the NDPS Act protects officers for acts done in good faith under the Act. An official act done with due care and without malice is presumed to be in good faith; a decision that appears wrong is not necessarily malicious, and the presumption can be displaced only by cogent and clinching material imputing an improper motive. (¶¶ 27, 28, 30, 31)
- The Special Judge recorded findings that the officer was liable under Section 58 solely on arguments advanced by co-accused at the final hearing, without notice or hearing to her; following State of West Bengal v. Babu Chakraborthy, adverse remarks and directions for prosecution against officers without an opportunity of hearing are unjustified. (¶¶ 32, 33, 34, 35)
- Hearing the matter on seven dates within ten days after the High Court's order, continuing after his own transfer order despite the officer's law-and-order duties being brought to notice, and dictating an order kept in a sealed cover for his successor showed a complete disregard of natural justice; justice must not only be done but be seen to be done. (¶¶ 35, 36, 37)
- The sealed-cover order showed a predetermined approach and non-application of mind, as it recorded that the conviction-acquittal judgment had not been challenged and had become final when appeals by the State and the convicted accused were in fact pending and admitted. (¶ 39)
Result
Appeal allowed; High Court order dated 14.10.2010 set aside; paragraphs 49 and 50 of the Special Judge's judgment (containing observations against the appellant) quashed; Section 58 show-cause notice dated 26.02.2007 and all subsequent proceedings, including the sealed-cover order of 30.05.2008, quashed.