Holding

Army personnel are citizens entitled to constitutional protection and the procedural safeguards of the NDPS Act apply to them; a trial without such compliance is void.

Summary

The case concerned L.D. Balam Singh, an Indian Army officer, who was tried by a General Court Martial under Section 69 of the Army Act for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The High Court had set aside his conviction on the ground that the search and seizure of opium from his residence violated mandatory procedural safeguards under Sections 41, 42 and 50 of the NDPS Act. On appeal, the Supreme Court examined whether army personnel are excluded from constitutional protection under Article 33 and whether the NDPS Act’s procedural requirements apply to them. The Court held that army personnel are citizens entitled to the Constitution’s guarantees and that Article 33 does not by itself abrogate those rights; consequently, the NDPS Act’s safeguards apply irrespective of the forum of trial. Because the search and seizure were conducted without compliance with the statutory safeguards, the trial before the General Court Martial was vitiated, and the High Court’s decision was affirmed. The appeal was therefore dismissed.

Issues considered

Whether army personnel constitute a class of citizens outside the purview of the Constitution and Article 33.
Whether the procedural safeguards mandated by Sections 41, 42 and 50 of the NDPS Act apply to army personnel tried by a General Court Martial.
Whether a trial under the Army Act for an offence punishable under the NDPS Act, without compliance with those safeguards, is void.

Legislation cited

Army Act, 1950s. Section 109, s. Section 69
Code of Criminal Procedure, 1973s. Section 100
Constitution of Indias. Article 33
Narcotic Drugs and Psychotropic Substances Act, 1985s. Section 18, s. Section 41, s. Section 42, s. Section 50

Subjects

ConstitutionArticle 33Army personnelFundamental rightsNDPS ActProcedural safeguardsSearch and seizureGeneral Court MartialMilitary lawTrial vitiated

Judgment

UNION OF INDIA AND ORS. A
v.
L.D. BALAM SINGH

APRIL 24, 2002

[UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ.] B

,. "' Constitution of India, I950-Article 33-Fundamental rights-
Applicability of to army personnel-Held, army personnel does not form a
class of citizen fa/ling outside the purview of the Constitution-The provision C
by itself does not abrogate any rights-Its applicability is dependent 011
par/iamellfary legislation.

Narcotic Drugs and Psychotropic Substances Act, I985-Sections 4I,
42 and 50-Procedural safeguards-Applicability of to army perso11nel-
Offence under NDPS Act-Trial under Army Act-Held, trial without taking D
recourse to statutory safeguards under NDPS Act would be void and hence

. the trial would stand vitiated-Army Act, 1950-Section 69.

Opium was recovered from the family quarter of.respondent accused
who was serving in Indian Army and two other civilians. Respondent was
put to trial hy General Court Martial and tried under Section 69 of Army E
Act, 1950 for offence punishable under Section 18 of Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act) and convicted and sentenced
thereunder. However, other two civilians who were tried by the Criminal
Court were acquitted of the offence on the ground of non-compliance of
mandatory requirements of NDPS Act.
F
Respondent challenged the conviction and sentence by General Court
Martial by filing writ petition which was allowed by High Court.

In appeal to this Court the questions for consideration before this Court
were whether an army personnel form a class of citizens not entitled to the
Constitution's benefit and are outside the purview of the Constitution and G
whether substantive and procedural safeguards under a specific legislation
are available to them.

Respondent contended that entire proceedings stand vitiated due to
non-compliance of Sections 41 and 42 as no search warrants were issued and H
385
386 SUPREME COURT REPORTS [2002] 3 S.C.R.

A officers conducting the search were admittedly not duly authorised under
NDPS Act

Petitioner contended that by reason of the fact of the petitioner being a -
'persons' belonging to the armed forces, question of usual formality as regards
the procedural aspects under NDPS Act would not arise; and that Section 50
B was not applicable in the instant case as contranband items were recovered
from the residence of the respondent and not from the person of the
respondent. ,,...

Dismissing the appeal, the Court

C HELD : I.I. An Army Personnel is as much a citizen as any other
individual citizen of this country. Incidentally, the provisions as contained in
Article 33 does not by itself abrogate any rights and its applicability is
dependent on Parliamentary legislation. The language used by the framers is
unambiguous and categorical and it is in this perspective Article 33 may be
D noticed. [388-B, CJ

1.2. A plain reading of Article 33 of the Constitution would reveal that
the extent of restrictions necessary to be imposed on any of the fundamental
rights in their application to the armed forces and the forces charged with
the maintenance of public order for the purpose of ensuring proper discharge
E of their duties and maintenance of discipline among them would necessarily
depend upon the prevailing situation at a given point of time and it would be
inadvisable to encase it in a rigid statutory formula. [388-G)

B. Viswar and Ors. v. Union of India and Ors., AIR (I983) (SC) 658; Lt.
Col. Amal Sankar Bhaduri v. Union ofIndia and Ors., (I987) CLT 1 and Prithi
F Pal Singh v. The Union of India, AIR (I982) SC 14I3, referred to.

2.1. Having a perusal of the relevant statutory provisions (in particular
Sections 4I and 42) the contention by respondent that the entire proceedings
stand vitiated, since no search warrants were issued and officers conducting
the search were admittedly not duly authorised under NJ)PS Act, cannot but
G be termed as it has been inevitable and inescapable. [395-E]

Roy V.D. v. State of Kera/a, [2001) SCC (Crl.) 42, relied on.

2.2. Section 50 is not applicable by reason of the faetum of the same
being made applicable to the person and not t.he place. Section 50 sub-section
H (1) by reas.on of the language used therein, does not amJ cannot have any
U.O.l. v. L.D. BAI.AM SINGH 387

manner of application. in the facts of the present case. [398-D, F] A
State of Pu,Yab v. Baldev Singh (1999] 6 SCC 172, referred to.

2.3. As regards the procedural aspect, it may be noticed that Section
18 is an offence which cannot but be ascribed to be civil in nature in terms of
the provisions of Army Act, 1950 if Section 18 is to be taken recourse to then B
and in that event the provisions ~f the statute come into play in its entirety
rather than piecemeal. The charge levelled against the respondent is not one
of misdeeds or wrongful conduct in terms of the provisions of the Army Act
• "' but under the NDPS Act In the event, a particular statute is taken recourse
to, question of trial under another statute without taking recourse to the
statutory safeguards would be void and the entire trial would stand vitiated
c
unless, there are existing specific provisions therefor in the particular statute.
Once the petitioner was put on trial for an offence under the NDPS Act, the
General Court Martial and the Army authorities cannot reasonably be heard

. to state that though the petitioner would be tried for an offence under Section
18 of the NDPS Act, yet the procedural safeguards as contained in the D
statntory provision would not be applicable to him being a member of the
Armed Forces. NDPS Act applies in its entirety irrespective of the jurisdiction
....
.... of the General Court Martial or other Courts and since the Army authorities
did not take into consideration the procedural safeguards as is embodied under
the statute, the question ofoffering any credence to the submissions of Union
of India in support of the appeal does not and cannot arise. There is no E
material on record to show that the authorities who conducted the search and
seizure at the house of the respondent herein has in fact done so in due
compliance with Section 42 of the statute which admittedly stand fatal for
the prosecution-as a matter of fact, two of the civilians stand acquitted
therefor. (398-F, G, H; 399-A, B, CJ F
~

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1368 of 1999.

From the Judgment and Order dated 15.3.1999 of the Punjab and
Haryana High Court in Crl. W. P. No. 1632 of 1996. G
V.C. Mahajan, Shreekant N. Terdal and K.K. Rai, for the Appellants.

Ms. Indu Malhotra for the Respondents.

The Judgment of the Court was delivered by
H
388 SUPREME COURT REPORTS [2002] 3 S.C.R.

A BANERJEE, J. While it is true that Army personnel ought to be
subjected to strictest form of discipline and Article 33 of the Constitution has
conferred powers on to the Parliament to abridge the rights conferred under
Part III of the Constitution in respect of the members of the Armed Forces,
but does that mean and imply that the Army Personnel would be denuded of
B the Constitutional privileges as guaranteed under the Constitution ? Can it be
said that the Army Personnel form a class of citizens not entitled to the
Constitution's benefits and are outside the purview of the Constitution ? To
answer above in the affirmative would be a violent departure to the basic
tenets of the Constitution. An Army Personnel is as much a citizen as any
other individual citizen of this country. Incidentally, the provisions as contained
C in Article 33 does not by itself abrogate any rights and its applicability is
dependent on Parliamentary legislation. The language used by the framers is
unambiguous and categorical and it is in this perspective Article 33 may be
noticed at this juncture. The said Article reads as· below :-

"33. Pown of Parliament to modify the rights conferred by this
D Part in their application to Forces, etc. - Parliament may, by law, ...
determine to what extent any of the rights conferred by this Part
shall, in their application to -
~
(a) the members of the Armed Forces; or Ji.--

(b) the members of the Forces charged with the maintenance of public
E order; or
(c) persons employed in any bureau or other organisation established
by the State for purposes of intelligence or counter intelligence;
or

F (d) persons employed in, or in connection with, the telecommunication
system s_~tup for the purposes of any Force, bureau or organisation ~
'--
referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the proper discharge of their
duties and the maintenance of discipline among them."
G
A plain reading thus would reveal that the extent ofrestrictions necessary
to be imposed on any of the fundamental rights in their application to the
armed forces and the forces charged with the maintenance of public order for
the purpose of ensuring proper discharge of their duties and maintenance of
discipline among them would necessarily depend upon the prevailing situation
H at a given point of time and it would be inadvisable to encase it in a· rigid
l
U.0.1. v. L.D. BAI.AM SINGH [BANERJEE, J.) 389
statutory fonnula. The Constitution makers were obviously anxious that no A
more restrictions should be placed than are absolutely necessary for ensuring
proper discharge of duties and the maintenance of discipline amongst the
Armed Force Personnel and therefore Article 33 empowered the Parliament
to restrict or abridge within permissible extent, the rights conferred under
Part III of the Constitution in so far as the Anned Force Personnel are B
concerned. (In this context reference may be made to the decision of the
Supreme Court in the case of B. Viswar and Ors. v. Union of India and Ors.,
reported in AIR (1983) S.C. 658 as also a judgment of the Calcutta High
Court in the case of Lt. Col. Amal Sankar Bhaduri v. Union ofIndia and Ors.
(1987) CLT 1 of which one of us (U.C. Banerjee, J.) was a party.

This Court in the case of Prithi Pal Singh v. The Union of India, AIR
c
1982 SC 1413, observed :

"It is one of the cardinal features of our Constitution that a person by
enlisting in or entering anned forces does not cease to be a citizen so
as to wholly deprive him of his rights under the Constitution. More D
so when this Court held in Sunil Batra v. Delhi Administration, [1979]
I SCR 392 at p. 495 : AIR (1978) SC 1675 at p. 1727 that even
prisoners deprived of personal liberty are not wholly denuded of their
fundamental rights. In the larger interest of national security and
military discipline Parliament in its wisdom may restrict or abridge
such rights in their application to the Anned Forces but this process E
should not be carried so far as to create a class of citizen not entitled
to the benefits of liberal spirit of the Constitution. Persons subject to
Anny Act are citizens of this ancient land having feeling of belonging
to the civilized community governed by the liberty oriented
Constitution." F
While answer to the first question posed above is in the affinnative,
the contextual facts bear out and pose a further issue as regards
availability of substantive and procedural safeguards under a specific
legislation the High Court answered it in the affinnative since such
procedural safeguards are said to be mandatory in nature. G
Adverting to the factual matrix presently under consideration, it appears
that on a petition filed under Articles 226/227 of the Constitution of India,
the respondent herein prayed for quashing of the charge-sheet, sentence of
the General Court Martial, order of confirmation of General Officer
Commanding and also to quash the trial of the General Court Martial. The H
390 SUPREME COURT REPORTS [2002] 3 S.C.R.

A facts of the matter however briefly are as below:
The petitioner was serving the Indian Army having joined the same on
28.10.1976. He was posted to 18 Cavalry C/o 56 A.P.O. during the year
1990-91 at Patiala Cantt. He was residing with his family in a Government
married accommodation being House No. 255/30 K.S. Colony, Patiala Cantt.
B On 28.12.1991 a search of his residence was conducted by Army Officers/
Officials and allegedly opium weighing 4.900 Kgs. was recovered from his
family quarter. The petitioner was thereafter placed under Arrest in military
custody and was put in the quarter guard of his unit aforesaid and F.l.R. No.
378 was lodged a• Police Station Sadar Patiala on 28.12.1991. A sample of
C the opium recovered was forwarded to the Chemical Examiner for analysis
and the remaining quantity of the opium, a contraband was kept with the
Polite.

; The summary of evidence was ordered by the Commanding Officer of
64 Cavalry and on the basis of directions from the Brigade Commander, the
D petitioner was put to trial by the General Court Martial convened under the
Convening Order. The petitioner was tried under Section 69 of the Army Act
for an offence punishable under Section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act).
After the trial was over, the petitioner was convicted and sentenced by the
General Court Martial.
E
Before adverting, however, to the rival contentions as advanced before
this Court, it would be worthwhile to refer to the relevant provisions of the
Army Act and the Rules framed thereunder. Chapter VI of the ·Army Act,
1950 stands ascribed to the offences and Section 69 therein deals with the
F civil offences, which reads as below :-

69. Civil offences-Subject to the provisions of Section 70, any person
subject to this Act who at any place in or beyond India, commits any
civil offence, shall be deemed to be guilty of an offence against this
Act and, if charged therewith under this section, shall be liable to be
G tried by a court-martial and, on conviction, be punishable as follows,
that is to say -

(a) if the offence is one which would be punishable under any law
in force in India with death or with transportation, he shall be
liable to suffer any punishment, other than whipping, assigned
H for the offence, by the aforesaid law and such less punishment as
U.0.1. v. L.D. BALAM SINGH [BANERJEE, J.] 391
is in this Act mentioned; and . A
(b) in any other case, he shall be liable to suffer any punishment,
other than whipping, assigned for the offence by the law in force
in India, or imprisonment for a term which may extend to seven
years, or such less punishment as is in this Act mentioned."

It is on this score that Section 109 in Chapter X ought also to be B
noticed at this juncture. The Section reads as below :

"109. Power to convene a general court-martial.-A general court-
martial may be convened by the Central Government of [the Chief of
the Army Staff] or by any officer empowered in this behalf by warrant C
of [the Chief of the Army Staff]."
Having outlined the factual score as above and upon noting of the two
several provisions of the Army Act, it would be worthwhile to note Section
18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS
Act). Needless to record that the petitioner was tried under Section 69 of the D
Army Act for an offence punishable under Section 18 of the NDPS Act the
trial did take place before a General Court Martial and conviction and sentence
_.. was also passed therein. It is this sentence and conviction which stands
challenged in the writ petition moved before the High Court, as noticed
above. The NDPS Act admittedly contains certain safeguards and the law
reports are replete with case laws pertaining to these safeguards. Dilution of E
the safeguards as prescribed in the statute has strongly been criticised and
negated and the same were ascribed to be strictly mandatory in nature. The
issue thus : whether by reason of the respondent being a member of the
Armed Forces would stand denuded of such a safeguard in the event the
General Court Martial takes note of an offence under a specific statute. Article
'1 33 of the Constitution though conferred a power but has not been taken F
recou;se to put a bar or restraint as regards the non-availability of the statutory
safeguards in terms therewith. Before proceeding further, however, it would
be convenient to note certain provisions of the NDPS Act, namely, Sections
18:42:50, which read as under : -

18. Punishment for contravention in relation to opium poppy and G
opium. Whoever, in contravention of any provision of this Act or
any rule or order made or condition of licence granted thereunder,
cultivates the opium poppy or produces, manufactures, possesses,
sells, purchases, transports, imports inter-State, exports inter-State
or uses opium shall be punishable - H
IA.

392 SUPREME COURT REPORTS (2002] 3 S.C.R.

A (a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, or with
fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than ten
B years but which may extend to twenty years and shall also be
liable to fine which shall not be less than one lakh rupees which
may extend to two lakh rupees:
,,,,.
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees. ·"'
c (c) in any other case, with rigorous imprisonment which may extend
to ten years and with fine which may extend to one lakh rupees.
42. Power of entry, search, seizure and arrest without warrant or
authorisation :
(I) Any such officer (being an officer superior !n rank to a peon,
D
sepoy or constable) of the department of central excise, narcotics,
customs, revenue, intelligence or any other department of the
~- ,.-
Central Government including para-military forced or armed forces
as is empowered in this behalf by general or special order by the
Central Government, or any such officer (being an officer superior
E in rank to a peon, sepoy or constable) of the revenue, drugs
control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special
order of the State Government, if he has reason to believe from
personal knowledge or information given by any person and taken
down in writing, that any narcotic drug, or psychotropic substance,
F ~ ....
or controlled substance in respect of which an offence punishable
under this Act has been committed or any document or other
article· which may furnish evidence of the commission of such
offence or any illegally acquired property or any document or
.other article which may furnish evidence of holding any illegally
G acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is kept or concealed in
any building, conveyance or enclosed place, may between sunrise
and sunset :- ..J...

(a) enter into and search any such building, conveyance or place;
H
U.0.1. v. L.D. BALAM SINGH [BANERJEE, J.] 393

.,, (b) in case of resistance, break open any door and remove any obstacle A
to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article B
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is liable
.. .... for seizure or freezing of forfeiture under Chapter VA of this Act;
and
c
(d) detain and search and, if he thinks proper arrest any person whom
he has reason to believe to have committed any offence punishable
under this Act :
Provided that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording D
opportunity for the concealment of evidence or facility for the
escape of an offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset and
sunrise after •ecording the grounds of his belief.
(2) Where an officer takes down any information in writing under
E
Sub-Section (I) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof to
his immediate official superior.

50. Conditions under which search of persons shall be conducted:-

- ~ (1) When any officer duly authorised under Section 42 is about to
search any person under the provisions of Section 41, Section 42
or Section 43, he shall, if such person so requires, take such
F

person without unnecessary delay to the nearest Gazetted Officer
of any of the departtnents mentioned in Section 42 or to the
nearest Magistrate. G
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the Magistrate
.... referred to in sub-section (I) .
(3 The Gazetted Officer or the Magistrate before whom any such
person is brought shall, ifhe sees no reasonable ground for search, H
394 SUPREME COURT REPORTS [2002] 3 S.C.R.

A forthwith discharge the person but otherwise shall direct that search
be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to
believe that it is not possible to take the person to be searched to
B
the nearest Gazetted Officer or Magistrate without the possibility
of the person to be searched parting with possession of any narcotic
drug or psychotropic substance, or controlled substance or article
or document, he may, instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to search the person as
c provided under section I 00 of the Code of Criminal Procedure,
1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such
search and within seventy-two hours send a copy thereof to his
D immediate official superior."

As regards the mandatory effect of the provisions as contained in Section
50 above, the Constitution Bench of this Court in Baldev Singh (State of
Punjab v. Baldev Singh, [1999] 6 SCC 172 has the following to state :

E "24 ............... There is, thus, unanimity of judicial pronouncements to
the effect that it is an obligation of the empowered officer and his
duty before conducting the search of the person of a suspect, on the
basis of prior information, to inform the suspect that he has the right
to require his search being conducted in the presence of a Gazetted
officer or a Magistrate and that the failure to so inform the suspect
F of his right, would render the search illegal because the suspect would
not be able to avail of the protection which is inbuilt in Section 50.
Similarly, if the person concerned requires, on being so informed by
the empowered officer or otherwise, that his search be conducted in
the presence of a Gazetted officer or a Magistrate, the empowered
G officer is obliged to do so and failure on his part to do so would also
render the search illegal and the conviction and sentence of the accused
bad.

25. To be searched before a Gazetted officer or a Magistrate, if the
suspect so requires, is an extremely valuable right which the legislature
H has given to the person concerned having regard to the grave
U.0.1. v. L.D. BALAM SINGHJBANERJEE, J.) 395

consequences that may entail the possession of illicit articles under A
the NDPS Act. It appears to have been incorporated in the Act keeping
in view the severity of the punishment. The rationale behind the
provision is even otherwise manifest. The search before a Gazetted
officer or a Magistrate would impart much more authenticity and
creditworthiness to the search and seizure proceedings. It would also
verily strengthen the prosecution case. There is, thus, no justification B
for the empowered officer, who goes to search the person, on prior
information, to effect the search, of not informing the person concerned
•• of the existence of his right to have his search conducted before a
Gazetted officer or a Magistrate, so as to enable him to avail of that
right. It is, however, not necessary to give the information to the C
person to be searched about his right in writing. It is sufficient if such
information is communicated to the person concerned orally and as
far as possible in the presence of some independent and respectable
persons witnessing the arrest and search. The prosecution must,
however, at the trial, establish that the empowered officer had conveyed
the information to the person concerned of his right of being searched D
in the presence of a Magistrate or a Gazetted officer, at the time of
the intended search. Courts have to be satisfied at the trial of the case
about due compliance with the requirements provided in Section 50.
No presumption under Section 54 of the Act can be raised against an
accused, unless the prosecution establishes it to the satisfaction of the E
court, that the requirements of Section 50 were duly complied with."

On the factual matrix Mrs . Indu Malhotra appearing for the respondent
rather emphatically contended that it is an admitted situation that there is
non-compliance of Sections 41 and 42 of the NDPS Act since no search
warrants were issued and officers conducting the search were admittedly not F
duly authorised under the Act and by reason therefor the resultant effect of
state of the situation as above, rendered the entire proceeding stand vitiated.
The decision in Baldev Singh (supra) mainly dealt with the provisions of
Section 50, which would be dealt with shortly hereafter but presently having
a perusal of the relevant statutory provisions (in particular Sections 41 and G
42) the submission as above cannot but be termed as it has been inevitable
and inescapable. A recent decision of this Court in Roy V.D. v. State of
Kera/a, [2001] SCC (Crl) 42) however, lends credence to conclusion as
above since this Court as a matter of fact dealt with the true purport of
Sections 41 and 42 of the NDPS Act. The felicity expression as contained
therein, however, prompts us to note the same in extenso as below :- H
396 SUPREME COURT REPORTS [2002) 3 S.C.R.
~
A "15. It is thus seen that for exercising powers enumerated under sub-
section (1) of Section 42 at any time whether by day or by night a
warrant of arrest or search issued by a Metropolitan MagisU"ate or a
Magistrate of the First Class or any Magistrate of the Second Class
who has been specifically empowered by the State Government in
that behalf or an authorisation under sub-section (2) of Section 41 by
B an empowered officer is necessary. Without such a warrant or an
authorisation, an empowered officer can exercise those powers only
y
between sunrise and sunset. However, the proviso permits such an ...
empowered or authorised officer to exercise the said powers at any
time between sunset and sunrise if he has reason to believe that such
c a search warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence of facility for the escape
of an offender and he records the grounds of his belief.

16. Now, it is plain that no officer other than an empowered officer
can resort to Section 41 (2) or exercise powers under Section 42(1) of
D the NDPS Act or make a complaint under clause (d) of sub-section
(1) .of Section 36-A of the NDPS Act. It follows that any collection ,..._ __,
of materials, 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 authorised officer under Section 41(2) of
the NDPS Act, lacks sanction of law and is inherently illegal and as
E such the same cannot form the basis of a proceeding in respect of
•
offences under Chapter IV of the NDPS Act and use of such a material
by the prosecution vitiates the trial.
17. To the same effect is the view expressed by this Court in State
of Punjab v. Balbir Singh, [1994] 3 SCC 299 : [1994] SCC (Crl) ~ ~
F 634). In para 13 Jayachandra Reddy, J. speaking for the Court observed
thus: (SCC p. 313)
"13. Therefore, if an arrest or search contemplated under Sectfons
41 and 42 is !11ade under a warrant issued by any other Magistrate
or is made by any officer not empowered or authorised, it would
G per se be illegal and would affect the prosecution case and
consequently vitiate the trial."
.J..
...............................................................................................................................
19. The learned Additional Solicitor General, however, relying upon
H conclusion No. (3) iii para 57 of State of Punjab v. Baldev Singh
U.0.1. v. L.D. BALAM SINGH [BANERJEE, J.) 397
[1999) 6 sec 172 : [1999) sec (Crl) 1080) contends that a search A
and 5eizure in violation of Sections 41 and 42 of the NDPS Act does
not vitiate the trial but would render the recovery of illicit article
suspect and would only vitiate the conviction and sentence of the
accused if the conviction has been recorded solely on the basis of
such an illicit article, so the High Court was right in not quashing the B
proceedings. We are afraid, we cannot accede to the contention of the
learned Additional Solicitor General... .......... "

The appellant herein, however, rather emphatically voiced two specific
counts in support of the appeal. On the first, it has been contended that by
reason of the fact of the petitioner being a 'person' belonging to the Armed C
Forces, question of usual fonmalities as regards the procedural aspect under
NDPS Act would not arise, as such infraction of Section 42 of the NDPS Act
cannot be said to be of any consequence : On the second count it has been
the definite contention that since Section 50 specifically records "abo11t to
search any person" and since the contraband item has been in fact recovered
from the private residence of the respondent herein, Section 50 cannot be D
said to be of any application. It is on this score the charge-sheet, though not
included in the paper book, but upon leave of the Court, was produced and
placed reliance upon in support of the appeal. We also deem it fit and
convenient to note the charge-sheet hereinbelow :-

"CHARGE SHEET E
The accused No 1059403N LD (Subs) Balam Singh of 18 Cavalry,
attached to 64 Cavalry is charged with :-

- Army Act
Section 69
COMMITTING A CIVIL OFFENCE, THAT IS TO
SAY, POSSESSING OPIUM IN CONTRAVENTION OF
SECTION 18 OF THE NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985
F

in that he,
at Patiala on 28 Dec 91 was found in illegal possession of 4 kgs
and 900 grams of opium. G
Place : Patiala Sd/xxxx
Date : 12 Mar 92 (SD Singh) Colonel
Commanding Officer
The 64 Cavalry
To be tried by General Court Martial. H
398 SUPREME COURT REPORTS (2002] 3' S.C.R.

A Station : Patiala Sd/xxxx
Clo 56 APO (Kamaljit Singh)
Major General
Dated : 14 Mar 92 General Officer Commanding
l Armoured Division"
B We shall have the occasion to deal with the specific grievance as
submitted in support of the respondent's contention later on in this judgment,
but for the present suffice it to record that the same stated to be relating to
possession of opium in contravention of Section 18 of the NDPS Act since
he was found in illegal possession of 4 Kgs and 900 grams of opium at
Patiala on 28th December, 1991. The charge-sheet, however,' is stated to be,
C as noticed above, issued under Section 69 of the Army Act ,by one Shri S.D.
Singh, Colonel/Commanding Officer 64th Cavalry and it is this charge-sheet
which has been directed by the General Officer Commanding, Major General
Kamaljir-Singh to be tried by the General Court Martial.

D In the writ petition filed before the High Court after the conclusion of
the Court Martial proceedings and recording of the finding of guilt of the
charge the petitioner/respondent herein specifically raised a plea of the charge
being vague .. Before, however, we deal with the same let us get back to the
two specific counts noticed hereinbefore, namely, procedural aspect and non-
applicability of Section 50. Dealing with the second count first, as regards
E non-applicability of Section 50 by reason of the factum of the same being
made applicable to the person and not the place, we cannot but record our
concurrence therewith. Section 50 sub-section ( l) by reason of the language
used therein, does not and cannot have any manner of application in the facts
presently under consideration.

F Turning attention on to the procedural aspect, be it noticed that Section
18 is an offence which cannot but be ascribed to be civil in nature in terms
of the provisions of Army Act-if Section .1 s is to be taken recourse to then
and in that event the provisions of the statute come into play in its entirety
rather than piecemeal. The charge levelled against the. respondent is not one
G of misdeeds or wrongful conduct in terms of the provisions of the Army Act
but under the NDPS Act-In the event, we clarify, a particular statute is
taken recourse to, question of trial under another statute without taking recourse
to the statutory safeguards would be void and the entire trial would stand
vitiated unless, of course, there are existing specific provisions therefor in the
particular statute. Needless to record that there were two other civilian accused
H who were tried by the Court at Patiala but were acquitted of the offence for
U.0.1. v. L.D. BALAM SINGH [BANERJEE, J.] 399
non-compliance of the mandatory requirements of the NDPS Act. Once the A
petitioner was put on trial for an offence under the NDPS Ac~ the General
Court Martial and the Army authorities cannot reasonably be heard to state
that though the petitioner would be tried for an offence under Section 18 of
the NDPS Ac~ yet the procedural safeguards as contained in the statutory
provision would not be applicable to him being a member of the Armed
Forces. The Act applies in its entirety irrespective of the jurisdiction of the B
General Court Martial or other Courts and since the A.my authorities did not
take into consideration the procedural safeguards as is embodied under the
• Statute, the question of offering any credence to the submissions of Union of
India in support of the appeal does not and cannot arise. There is no material
on record to show that the authorities who conducted the search and seizure C
at the house of the respondent herein has in fact done so in due compliance
with Section 42 of the statute which admittedly stand fatal for the prosecution
as noticed above-as a matter of fact, two of the civilians stand acquitted
therefor.

Lastly, it has been contended by the respondent that the charge-sheet D
is not only vague, but devoid of all material particulars and does not even
...
-- fulfil the requirements of the Army Rules and the entire proceedings in any
event stand vitiated. We are, however, not expressing any opinion thereon,
neither the same is required for the purposes of disposal of this matter.
Suffice it to record, however, that the same has some substance.
E
Having considered the matter in the perspective as above, we do not
find any infraction of any law in the judgment of the High Court, neither the
judgment can be faulted in any other way. This appeal, therefore, fails and
is thus dismissed.
F
K.K.T. Appeal dismissed.