Special Court Cannot Conduct Criminal Proceedings U/s. 58 NDPS Act As It Can Be Tried Summarily Only By A Magistrate: Supreme Court

The Court quashed criminal proceedings and allowed the challenge against the Judgment of the Punjab and Haryana High Court which upheld the Order passed by the Special Court initiating criminal proceedings under Section 58 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 against the Superintendent of Police (Appellant) investigating a case pertaining seizure of opium.

The Bench of Justice B.R Gavai, Justice Prashant Kumar Mishra and Justice K.V. Viswanathan observed, “Section 36-A (5) of the NDPS Act which begins with the nonobstante clause provides that notwithstanding anything contained in the Cr.P.C., the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. It could thus be seen that even if the proceedings were to be initiated against the appellant for the offence punishable under Section 58 of the NDPS Act, the appellant was required to be tried summarily.”

Senior Advocate Atmaram N.S. Nadkarni represented the Appellant, while Senior AAG Lokesh Sinhal appeared for the Respondent.

The Appellant had arrested an accused for possession opium. The Appellant took cognizance of the application filed by the accused claiming that he was innocent and that the Opium had been planted upon him by others and subsequently discharged him.

However, the Special Court dismissed the discharge application filed by the accused observing that the conduct of the Investigating Agency was suspicious. The Special Court requested the Director General of Police to conduct an enquiry into the matter, as a commercial quantity of Opium was involved and the Police officers involved in the case had sought the discharge of the prime accused after merely three days of his arrest.

During the trial, the Special Court convicted the accused and issued a show-cause notice to the Appellant as to why proceedings under Section 58 of the NDPS Act must not be initiated against her.

The Supreme Court remarked that the Special Judge had acted in a “predetermined manner” as the only reason given in the order was that the present Appellant and the other police officers exercised their powers under Sections 42, 43 and 44 of the NDPS Act, but not in a bona fide manner. “The findings are beset with several legal infirmities,” the Bench remarked.

It was pointed out that the proceedings initiated by the Special Judge against the Appellant were for the offence punishable by a maximum sentence of up to two years. Therefore, the offences punishable under the NDPS Act with imprisonment for a term of not more than three years have to be tried summarily.

The Court referred to its decision in Tofan Singh v. State of Tamil Nadu (2021) wherein the Apex Court held that only the offences which were punishable with imprisonment for a term of more than three years were exclusively triable by the Special Court.

Consequently, the Court observed, “It is thus clear that the learned Special Judge could not have conducted the proceedings against the present appellant for the offence punishable under Section 58 of the NDPS Act inasmuch as such proceedings could have been conducted only by a Magistrate. Undisputedly, the procedure as required under Chapter XX i.e. Sections 251 to 256 of the Cr.P.C. has also not been followed.”

Accordingly, the Supreme Court allowed the Appeal.

Cause Title: Bharti Arora v. The State of Haryana (Neutral Citation: 2024 INSC 976)

Appearance:

Appellant: Senior Advocate Atmaram N.S. Nadkarni; AOR Ambar Qamaruddin; Advocates Divyakant Lahoti, Bijender Singh, Tejasvi Kumar, Shashank Garg, Kumar Vinayakam Gupta, S.S. Rebello, Deepti Arya, A. Parul, Manisha Gupta, Himanshi Nagpal, Rishikesh Haridas, Yanthanshan Yantha and Himani Verma

Respondent: Senior AAG Lokesh Sinhal; AAG Rajesh Kumar Singh; Advocates Nikunj Gupta, Himanshi Sakhya, Fateh Singh and Aakanksha; AOR Samar Vijay Singh

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