Supreme Court: Non-Compliance Of S.52A NDPS Act Not Ground For Bail; Irregular Seizure Won't Make Evidence Inadmissible

 The upshot of the above discussion may be summarized as under:

(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the Accused involved in the offences under the NDPS Act.

(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in Sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the Accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the Accused.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the Accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible Under Section 54 of the NDPS Act. {Para 39}

40. The impugned order based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the Accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. Since, the High Court has not considered the application of the Respondent on merits and has also not considered the mandatory requirement Under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the Respondent afresh on merits and in accordance with law.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 5544 of 2024.

Decided On: 20.12.2024

Narcotics Control Bureau Vs. Kashif

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/1384/2024,2024 INSC 1045.

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Under which circumstance irregularity in procedure will not amount to failure of justice?

 What does the expression 'failure of justice' mean? In Shamnsaheb M. Multani v. State of Karnataka   MANU/SC/0047/2001 : (2001) 2 SCC 577 it was held that the expression 'failure of justice' is too pliable or facile an expression which could be fitted in any situation. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. {Para 71}

72. This decision was followed in State of M.P. v. Bhooraji   MANU/SC/0481/2001 : (2001) 7 SCC 679 and also in Rattiram v. State of M.P.   MANU/SC/0125/2012 : (2012) 4 SCC 516 In the latter decision, it was held that the expression 'failure of justice' must be given its due significance otherwise every procedural lapse or interdict could be interpreted to result in a failure of justice making the criminal justice delivery system completely illusory. Rattiram dealt with non-compliance with Section 193 of the Code of Criminal Procedure and it was held that this did not result in a failure of justice. It was held in paragraphs 65 and 66 of the Report as follows:

We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the legislature deliberately obliterated certain rights conferred on the Accused at the committal stage under the new Code. The intendment of the legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

 An allegation of 'failure of justice' is a very strong allegation and use of an equally strong expression and cannot be equated with a miscarriage of justice or a violation of law or an irregularity in procedure-it is much more. If the expression is to be understood as in common parlance, the result would be that seldom would a trial reach a conclusion since an irregularity could take place at any stage, inadmissible evidence could be erroneously admitted, an adjournment wrongly declined etc. To conclude, therefore, Section 19(3)(c) of the PC Act must be given a very restricted interpretation and we cannot accept the over-broad interpretation canvassed by learned Counsel for the Appellants. {Para 77}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

Read full Judgement here: Click here.

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When court should not permit rectification of procedural irregularity committed by party?

In Kailash v. Nanhku and Ors. MANU/SC/0264/2005 : AIR2005SC2441 , this Court has categorically held:

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. MANU/SC/2173/2005 : AIR2006SC269 , it was observed:

17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:

i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.

ii) where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;

iii) where the non-compliance or violation is proved to be deliberate or mischievous;

iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.

v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2243 of 2009 (Arising out of SLP (C) No. 5026 of 2007)

Decided On: 08.04.2009

 Lakshmi  Vs.  Chinnammal and Ors.

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Whether order dismissing suit without framing issues on ground of res judicata is appealable?

The impugned order dismissing the suit on the ground
of Res Judicata does not cease to be a decree on account of a
procedural irregularity of non-framing an issue. The court ought

to treat the decree as if the same has been passed after
framing the issue and on adjudication thereof, in such
circumstances. What is to be seen is the effect and not the
process. Even if there is a procedural irregularity in the process
of passing such order, if the order passed is a decree under
law, no revision lies under Section 115 of the Code in view of
the specific bar under sub-Section (2) thereof. It is only
appealable under Section 96 read with Order XLI of the Code.
16. The order passed by the trial court is a composite order
on rejection of the plaint as there is no cause of action and
dismissal of the suit as not maintainable on the ground of Res
Judicata. Both aspects are covered by the definition of decree
under Section 2(2) of the Code and, therefore, the remedy is
only appeal and not revision even if there is any irregularity in
passing the order.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4543 OF 2016
(Arising out of S.L.P.(C) No. 538 of 2014)

RISHABH CHAND JAIN  Vs GINESH CHANDRA JAIN 

KURIAN, J.:
Citation:AIR 2016 SC2143

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Distinction between non- service of notice and notice though served but with procedural irregularities in serving

 In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained.

It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him.

If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused.
SUPREME COURT OF INDIA

Sri Prabin Ram Phukan & ANR. Vs. State of Assam & Ors.

[Civil Appeal Nos. 662-663 of 2008]

Citation; (2015) 3 SCC605

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Distinction between non service of notice and procedural lapse in service of notice

In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained.

It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him.

If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. The case in hand falls in former category of case.
SUPREME COURT OF INDIA

Sri Prabin Ram Phukan & ANR. Vs. State of Assam & Ors.

[Civil Appeal Nos. 662-663 of 2008]

Citation;2015) 3 SCC 605.

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