Supreme Court of India
Bharti Arora vs The State Of Haryana on 13 December, 2024
Author: B.R. Gavai
Bench: Prashant Kumar Mishra, B.R. Gavai
2024 INSC 976 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1699 OF 2011
BHARTI ARORA ...APPELLANT(S)
VERSUS
THE STATE OF HARYANA ...RESPONDENT(S)
INDEX
Sl. No. Particulars Para Nos.
I. INTRODUCTION 1
II. FACTS 2-2 to 2.19
III. SUBMISSIONS 3 to 14
IV. CONSIDERATION 15 to 37
a. Interpretation of the provisions
of the NDPS Act and Cr.P.C. 18 to 26
b. Good Faith 27 to 31
c. Violation of Principles of Natural
Justice 32 to 37
V. CONCLUSION 38 to 41
JUDGMENT
B.R. GAVAI, J.
I. INTRODUCTION:
1. The present appeal challenges the final judgment and
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
order dated 14th October 2010, passed by the learned Single
Date: 2024.12.13
14:01:18 IST
Reason:
Judge of the High Court of Punjab and Haryana at Chandigarh
1
in Criminal Revision No. 2194 of 2008, whereby the learnedSingle Judge dismissed the Criminal Revision filed by the
appellant herein and upheld the order dated 30th May 2008
passed by the Presiding Officer1, Special Court, Kurukshetra
wherein the learned Special Judge placed the typed and
dictated order relating to the proceedings initiated against the
appellant for the offence punishable under Section 58 of the
Narcotic Drugs and Psychotropic Substances Act, 19852 in a
sealed cover to be delivered by the successor learned Special
Judge.
II. FACTS:
2. Shorn of details, the facts leading to the present appeal
are as under:
2.1. The appellant was posted as the Superintendent of
Police3, Kurukshetra from the period 21st May 2004 to 18th
March 2005.
2.2. On 6th January 2005, Inspector Ram Kumar, along with
other Police officials, was present at the ‘T’ point in village
Masana on G.T. Road, District Kurukshetra in a Government
1
‘Special Judge’ hereinafter.
2
‘NDPS Act’ hereinafter.
3
‘S.P’ hereinafter.
2
Vehicle, for the purpose of patrolling. Secret information was
received that one Ran Singh, who was involved in the sale of
Opium, was having a large quantity of Opium with him and
could be apprehended. Based on this, a raiding party was
formed which reached the residence of Ran Singh. Shri
Virender Kumar Vij, Deputy Superintendent of Police4,
reached the spot and he directed a search to be conducted.
Ran Singh was found near his residence, and he had covered
himself in a blanket. He was apprehended and was found
holding a white coloured plastic bag in his right hand. The
plastic bag was searched and Opium weighing 8 Kgs. 700
grams was recovered. Based on the aforementioned facts, a
First Information Report5 No. 08 of 2005 was registered at
Police Station, Shahbad, Kurukshetra for the commission of
offence punishable under Section 18 of the NDPS Act. As per
the report of the Forensic Science Laboratory, Haryana,
Madhuban, Karnal, the material recovered was found to be
Opium.
4
‘D.S.P.’ hereinafter.
5
‘F.I.R.’ hereinafter.
3
2.3. On 8th January 2005, an application was filed by Ran
Singh through a relative, wherein he claimed that he was
innocent, and that the Opium had been planted upon him by
one Surjeet Singh and others. The appellant, utilizing her
powers as the S.P., took cognizance of the application and
directed Shri Ram Phal, D.S.P. to conduct an inquiry. The
inquiry was conducted, and the report was submitted on the
same day, wherein it was revealed that Ran Singh was
innocent, and the Opium had been planted by Surjeet Singh,
Angrez Singh and Mehar Deen. The report was sent to the
appellant on the next day, i.e. 9th January 2005, and on the
same day, the discharge report of Ran Singh was prepared. A
discharge application was filed by Ran Singh on 10th January
2005 before the learned Special Judge, but the same was
dismissed by order dated 20th January 2005.
2.4. The appellant was transferred on 18th March 2005, and
joined as S.P., Government Railway Police, Haryana.
Meanwhile, the investigation was concluded and the final
report under Section 173 of the Code of Criminal Procedure,
19736, was filed on 24th March 2005. The final report revealed
6
‘Cr.P.C.’ Hereinafter.
4
that the Opium was planted by Surjeet Singh, Angrez Singh
and Mehar Deen and they were made the accused persons.
2.5. Ran Singh filed another application for discharge on the
grounds that he was not named in the final report, but the
learned Special Judge vide order dated 27th September 2005
dismissed the discharge application observing that the
conduct of the Investigating Agency is suspicious and further,
requested the Director General of Police, Haryana and
Inspector general of Police, Ambala Range, Ambala to conduct
an enquiry into the matter, as commercial quantity of Opium
was involved and the Police officers involved in the case had
sought discharge of the prime accused after merely three days
of his arrest. Pursuant to the order dated 27th September
2005, the report was submitted wherein it was maintained
that Ran Singh was innocent, and that the Opium was planted
by the three accused due to some pre-existing enmity.
2.6. The trial was conducted, and the learned Special Judge
vide final judgment dated 22nd February 2007 convicted Ran
Singh and acquitted Surjeet Singh, Angrez Singh and Mehar
Deen. The learned Special Judge observed in the said
judgment that the story wherein Ran Singh was implicated by
5
the trio was made up by the Senior Police officials including
the appellant herein and it has been found to be false and
concocted, and hence Show-Cause Notice must be issued to
them as to why proceedings under Section 58 of the NDPS Act
must not be initiated against them.
2.7. The learned Special Judge vide order dated 26th February
2007 issued Show-Cause Notice to the appellant under
Section 58 of NDPS Act and directed her to remain present
before the court on 15th March 2007. Pursuant to the said
order, the appellant appeared before the learned Special Judge
along with her counsel and the matter was adjourned to 12 th
April 2007 for filing of her reply to the notice. The reply was
filed by the appellant.
2.8. The appellant challenged the Show-Cause Notice dated
26th February 2007 by way of Criminal Revision No. 956 of
2007 before the High Court, which was dismissed vide order
dated 19th May 2008. It was observed that, prima facie, the
allegations made against the appellant herein cannot be said
to be false or not based on material on record. However, it was
clarified that nothing stated in the said order shall be
6
construed as an expression of opinion on the merits of the
case.
2.9. On the next day, i.e. 20th May 2008, the learned Special
Judge was informed of the decision of the High Court dated
19th May 2008 and the matter was fixed for 22nd May 2008 for
the personal presence of the appellant as well as the then
D.S.P. Ram Phal.
2.10. On 22nd May 2008, the appellant filed an
application for exemption from personal presence on the
ground that she was directed by the I.G. of Police, Railways &
Technical Services, Haryana to coordinate with the
Investigating teams at Jaipur, in connection with the
‘Samjhauta Bomb Blast’ which had taken place on 13th May
2008. The learned Special Judge observed that the letter dated
20th May 2008 issued by the I.G. directing her to report to
Jaipur was obtained to avoid her personal presence in the
court and placed the matter on 24th May 2008 and directed
her to be present and further directed her to produce proof of
her visit to Jaipur on 20th and 22nd May 2008.
2.11. On 24th May 2008, another exemption application
was filed by the appellant on the ground that she was still
7
investigating the ‘Samjhauta Bomb Blast’ at Jaipur. The
learned Special Judge dismissed the exemption application
and issued a Bailable Warrant against the appellant. The next
date of hearing was set to 27th May 2008.
2.12. On 26th May 2008, a Transfer and Postings Order
was passed by the High Court of Punjab and Haryana and the
learned Special Judge who had been hearing the case of the
appellant and the original NDPS case was transferred from
Kurukshetra to Panipat as ‘Additional District and Sessions
Judge’.
2.13. On 27th May 2008, another exemption application
was filed along with an adjournment application seeking
adjournment for one week on the ground that some agitation
had commenced, which was mainly targeting the railway
properties and the appellant, being the S.P., was directed to
supervise and ensure the maintenance of Law and Order
personally. The learned Special Judge, vide order dated 27th
May 2008, directed the appellant to be present on the next day
along with D.S.P. Ram Phal. On the next day, i.e. 28th May
2008, another exemption application for a period of one week
was filed by the appellant on the ground of some agitation. The
8
learned Special Judge adjourned the case to the next day, i.e.
29th May 2008 and observed that in the exemption
applications, a personal hearing is being sought, but the
appellant has not appeared before the court even once after
the dismissal of the Revision petition by the High Court vide
order dated 19th May 2008.
2.14. On 29th May 2008, the learned Special Judge
observed that the appellant was not present, and neither was
any exemption application filed, and it was directed that one
more chance for personal hearing must be given to the
appellant and in case she does not appear, it would be
presumed that she does not want to avail any opportunity of
hearing. The matter was adjourned to the next day, i.e. 30 th
May 2008.
2.15. On 30th May 2008, the learned Special Judge
observed that neither was the appellant present nor any
application for exemption had been filed. Further, before the
order could be pronounced, an objection was raised on behalf
of the appellant that in sensitive matters, orders should not be
pronounced after the receipt of the transfer orders by the
judicial officer. The learned Special Judge placed the typed
9
and dictated order in a sealed cover and adjourned the matter
to 4th June 2008.
2.16. Aggrieved by the order dated 30th May 2008, the
appellant filed Criminal Revision No. 2194 of 2008 before the
High Court of Punjab and Haryana at Chandigarh. The learned
Single Judge of the High Court, vide the impugned final
judgment and order dated 14th October 2010 dismissed the
Criminal Revision and upheld the order of the learned Special
Judge dated 30th May 2008. It was further directed that the
Special Court, Kurukshetra would open the sealed cover on
27th October 2010 and pronounce the order then and there,
and carry further proceedings as required by law. The
appellant was directed to remain present before the Special
Court, Kurukshetra on the date fixed, i.e. 27th October 2010.
The Director General of Police, Haryana and Home Secretary,
Haryana were directed to ensure the presence of the aforesaid
persons.
2.17. Aggrieved by the impugned final judgment and
order dated 14th October 2010, the appellant has filed this
Criminal Appeal.
10
2.18. This Court, vide order dated 26th October 2010
issued notice and stayed the operation of the impugned final
judgment and order dated 14th October 2010.
2.19. This Court, vide order dated 16th August 2011,
granted leave in the matter.
III. SUBMISSIONS:
3. We have heard Shri A.N.S. Nadkarni, learned Senior
Counsel appearing on behalf of the appellant and Shri Lokesh
Sinhal, learned Senior Additional Advocate General (‘Sr. AAG’
for short) appearing on behalf of the respondent-State at
length.
4. Shri Nadkarni, learned Senior Counsel appearing on
behalf of the appellant submitted that, firstly the findings
given by the learned Special Judge in its judgment and order
dated 22nd/24th February 2007, while convicting Ran Singh
and acquitting Surjeet Singh, Angrej Singh and Mehar Deen,
wherein adverse findings have been recorded against the
appellant, are contrary to the principles of natural justice. It
is submitted that no notice was given to the appellant prior to
recording of the adverse findings against her and the said
findings were recorded ex-parte.
11
5. Shri Nadkarni submitted that, even on merits, the said
findings were totally unwarranted. He submitted that the
appellant had served as S.P., Kurukshetra only from 21st May
2004 to 18th March 2005. It is submitted that, during that
period, the appellant was neither a part of the raiding team,
search team, nor the investigating team, that carried out the
operation against Ran Singh on 6th January 2005. It is
submitted that even the charge-sheet was filed against the
accused persons only after the appellant was transferred from
Kurukshetra. It is therefore submitted that no act or omission
could be attributed to the appellant covered by Sections 42,
43 and/or 44 of the NDPS Act. He submitted that, as such, on
the basis of such bald allegations by the accused persons, at
the stage of final hearing, the issuance of notice on the premise
that the appellant had committed an offence punishable under
Section 58 of the NDPS Act was itself not sustainable.
6. Shri Nadkarni further submitted that the findings of the
learned Special Judge are totally contradictory. On one hand,
the learned Special Judge came to a specific finding that there
was no violation of Sections 42, 50 and 55 of the NDPS Act; on
the other hand, the learned Special Judge has issued a notice
12
on the premise that the appellant and the other officers are
guilty of an offence punishable under Section 58 of the NDPS
Act. It is further submitted that the very approach of the
learned Special Judge in issuing notice under Section 58 of
the NDPS Act merely two days after the judgment and order
dated 22nd/24th February 2007 and thereafter rushing the
proceedings in a hurried manner would show that the learned
Special Judge was predetermined to convict the appellant. It
is submitted that this is clear from the said order of the
learned Special Judge which was kept in a sealed cover and
opened by this Court on 24th October 2024.
7. Shri Nadkarni submitted that the learned Special Judge
failed to take into consideration that the exemptions were
required to be granted to the appellant since the appellant was
required to attend important duties pertaining to law and
order. In a short span of ten days, the learned Special Judge
had adjourned the matter on seven days which shows the
hurried manner in which the learned Special Judge was
proceeding with the matter. It is submitted that the very
conduct of the learned Special Judge of dictating the order
after the transfer order was issued on 26th May 2008 and
13
keeping it in a sealed cover on 30th May 2008 for
pronouncement later on, itself shows the predetermined mind
of the learned Special Judge.
8. Shri Nadkarni further submitted that the punishment for
an offence punishable under Section 58 of the NDPS Act is less
than 3 years. It is therefore submitted that, in view of Section
36-A(5) of the NDPS Act, the proceedings against the appellant
for the offence punishable under Section 58 ought to have
been carried out as a summary trial by the learned Magistrate.
It is submitted that the summary trial will have to be
conducted as a summons case and the procedure as required
under Sections 251 to 259 of the Cr.P.C. would be required to
be followed. However, the learned Special Judge has passed
the judgment contrary to the said provisions. In this respect,
reliance is sought to be placed on the judgment of this Court
in the case of Tofan Singh v. State of Tamil Nadu7.
9. Shri Nadkarni submitted that the procedure adopted by
the learned Special Judge is full of lacunae. He submitted that
neither the copies of the police report and other documents
referred to in Section 207 of the Cr.P.C. were supplied to the
7
(2021) 4 SCC 1 : 2020 INSC 620
14
appellant nor was the appellant asked under Section 251 of
the Cr.P.C. whether she pleads guilty or not. He submitted
that neither the prosecution witnesses were examined nor was
the appellant given an opportunity to cross-examine the
witnesses. He submitted that the appellant was not given an
opportunity to explain the circumstances appearing in
evidence against her as required under Section 313 of the
Cr.P.C.
10. Shri Nadkarni submitted that the only role of the
appellant was forwarding the representation received by her to
the subordinate authorities. He submitted that, as such, she
was acting in discharge of her official duties. It is therefore
submitted that the appellant’s bona fide action was squarely
protected by Section 69 of the NDPS Act read with Section 76
of the Indian Penal Code, 1860. Shri Nadkarni submitted that
the findings against the appellant in the judgment and order
dated 22nd/24th February 2007 were rendered without
arraying the appellant as additional accused. It is submitted
that the procedure adopted by the learned Special Judge was
contrary to the Constitution Bench judgment of this Court in
15
the case of Sukhpal Singh Khaira v. State of Punjab8.
11. Shri Nadkarni further submitted that the learned Special
Judge could not have taken cognizance for the offence
punishable under Section 58 of the NDPS Act against the
appellant in the absence of a valid sanction under Section 197
of the Cr.P.C.
12. Shri Nadkarni further submitted that the appellant is a
highly meritorious officer, and she has received outstanding
grading in her CRs and is also a recipient of the Presidential
Medal.
13. The State has also supported the stand taken by the
appellant. The State has also reiterated that the appellant was
required to attend to an urgent law and order situation on
account of the bomb blasts in Samjhauta Express and also the
agitation. It further submitted that, though there were
voluminous evidence against the accused persons Surjeet
Singh, Angrej Singh and Mehar Deen, the learned Special
Judge had acquitted them. It is submitted that the State had
preferred an appeal challenging the acquittal of the said 3
8
(2023) 1 SCC 289 : 2022 INSC 1250
16
accused persons which is pending before the High Court. It is
stated that Ran Singh who was convicted has also filed an
appeal challenging his conviction before the High Court.
14. With the assistance of the parties, we have examined the
material placed on record.
IV. CONSIDERATION:
15. The only finding against the appellant in the judgment
and order of conviction/acquittal dated 22nd/24th February
2007 is thus:
“50. The powers under section 42, 43 and 44 of the
Act have been given to the police officers with regard
to seizure, search and arrest. As per provisions under
section 58 of the Act, any person empowered under
sections 42, 43 and 44 of the Act who vexatiously and
unnecessarily detains, searches or arrests any
person or wilfully and maliciously give false
information causing an arrest, shall be liable for
punishment. In the foregoing paragraphs, it has been
observed that the recovery of commercial quantity of
opium was effected from the conscious possession of
accused Ran Singh. After three days of his arrest, at
the behest of then Superintendent of Police Smt.
Bharti Arora and with the help of Ram Phal the then
DSP and Ram Kumar, investigating officer, the
prosecution case was formulated that the
commercial quantity of opium was planted by
accused Surjit Singh with the help of accused Angrej
Singh and Mehardeen in the heap of dung cakes
outside the house of accused Ran Singh. The story
made up by the senior police officers has been found
to be false and concocted which makes Smt. Bharti
Arora the then Superintendent of Police, Ram Phal17
the then DSP and Ram Kumar Inspector liable for
prosecution under section 58 of the Act. Hence,
separate notices to Smt. Bharti Arora the then
Superintendent of Police, Kurukshetra, Ram Phal the
then DSP and Ram Kumar Inspector be given to show
cause as to why proceedings under section 58 of the
N.D.P.S. Act be not initiated against them. It is not
out of place to mention here that accused Surjit
Singh remained in custody w.e.f. 8.1.2005 till
29.8.2005 and accused Angrej Singh and Mehardeen
remained in custody w.e.f. 8.1.2005 to 25.5.2005.”
16. It can thus be seen that the reasons given by the learned
Special Judge are that the present appellant and the other
police officers have though exercised their powers under
Sections 42, 43 and 44 of the NDPS Act, they were not
exercised in a bona fide manner. The findings are beset with
several legal infirmities pointed out hereinbelow.
17. We find that the judgment and order dated 22nd/24th
February 2007 passed by the learned Special Judge so also
the order dictated by the learned Special Judge on 30th May
2008 and kept it in a sealed cover to be pronounced by the
successor of the learned Special Judge are unsustainable in
law for more than one reason. Further, there has also been
gross violation of principles of natural justice.
a. Interpretation of the provisions of the NDPS Act and
Cr.P.C.:
18. It will be relevant to refer to Section 36-A (5) of the NDPS
18
Act, which reads thus:
“36-A. Offences triable by Special Courts.—(1)
……….
(2) ………
(3) ……….
(4) ……..
(5) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), the offences
punishable under this Act with imprisonment for a
term of not more than three years may be tried
summarily.”
19. It will also be relevant to refer to Section 58 of the NDPS
Act, which reads thus:
“58. Punishment for vexatious entry, search,
seizure or arrest.—(1) Any person empowered under
Section 42 or Section 43 or Section 44 who—
(a) without reasonable ground of suspicion
enters or searches, or causes to be entered
or searched, any building, conveyance or
place;
(b) vexatiously and unnecessarily seizes
the property of any person on the pretence
of seizing or searching for any narcotic
drug or psychotropic substance or other
article liable to be confiscated under this
Act, or of seizing any document or other
article liable to be seized under Section 42,
Section 43 or Section 44; or
(c) vexatiously and unnecessarily detains,
searches or arrests any person,
shall be punishable with imprisonment for a term
which may extend to six months or with fine which
may extend to one thousand rupees, or with both.
19
(2) Any person wilfully and maliciously giving false
information and so causing an arrest or a search
being made under this Act shall be punishable with
imprisonment for a term which may extend to two
years or with fine or with both.”
20. A perusal of sub-section (1) of Section 58 of the NDPS Act
would reveal that if any person empowered under Section 42
or Section 43 or Section 44, who, without reasonable ground
of suspicion enters or searches, or causes to be entered or
searched, any building, conveyance or place, or vexatiously
and unnecessarily seizes the property of any person on the
pretence of seizing or searching for any narcotic drug or
psychotropic substance or other article liable to be confiscated
under the Act, or of seizing any document or other article liable
to be seized under Section 42, Section 43 or Section 44; or
vexatiously and unnecessarily detains, searches or arrests any
person shall be punishable with imprisonment for a term
which may extend to six months or with fine which may extend
to one thousand rupees, or with both. Sub-section (2) thereof
provides that any person, who wilfully and maliciously gives
false information and so causes an arrest or a search being
made under this Act shall be punishable with imprisonment
for a term which may extend to two years or with fine or with
20
both.
21. The notice which was given by the learned Special Judge
to the appellant and other police officers was for the offence
punishable under Sections 58(1) and (2) of the NDPS Act. As
such, it could be seen that the proceedings which were
initiated by the learned Special Judge against the appellant
were for the offence punishable for which the maximum
sentence provided in the NDPS Act was up to two years.
Section 36-A (5) of the NDPS Act which begins with the non-
obstante 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.
22. A bench of learned three Judges of this Court in the case
of Tofan Singh (supra) was considering a question as to
whether officers of departments other than the police, on
whom the powers of an officer in charge of a police station
under Chapter XIV of the Cr.P.C., have been conferred, are
21
police officers or not within the meaning of Section 25 of the
Evidence Act. This Court answered the question that the
officers who are invested with powers under Section 53 of the
NDPS Act are “police officers” within the meaning of Section
25 of the Evidence Act, as a result of which any confessional
statement made to them would be barred under the provisions
of Section 25 of the Evidence Act, and cannot be taken into
account in order to convict an accused under the NDPS Act.
This Court observed thus:
“145. A third anomalous situation would arise, in
that under Section 36-A(1)(a) of the NDPS Act, it is
only offences which are punishable with
imprisonment for a term of more than three years
that are exclusively triable by the Special Court. If,
for example, an accused is tried for an offence
punishable under Section 26 of the NDPS Act, he
may be tried by a Magistrate and not the Special
Court. This being the case, the special procedure
provided in Section 36-A(1)(d) would not apply, the
result being that the Section 53 officer who
investigates this offence, will then deliver a police
report to the Magistrate under Section 173 CrPC.
Absent any provision in the NDPS Act truncating the
powers of investigation for prevention and detection
of crimes under the NDPS Act, it is clear that an
offence which is punishable for three years and less
can be investigated by officers designated under
Section 53, leading to the filing of a police report.
However, in view of Raj Kumar Karwal [Raj Kumar
Karwal v. Union of India, (1990) 2 SCC 409 : 1990
SCC (Cri) 330] , a Section 53 officer investigating an
offence under the NDPS Act can end up only by filing
a complaint under Section 36-A(1)(d) of the NDPS22
Act. Shri Lekhi’s only answer to this anomaly is that
under Section 36-A(5) of the NDPS Act, such trials
will follow a summary procedure, which, in turn, will
relate to a complaint where investigation is
undertaken by a narcotics officer. First and foremost,
trial procedure is post-investigation, and has nothing
to do with the manner of investigation or cognizance,
as was submitted by Shri Lekhi himself. Secondly,
even assuming that the mode of trial has some
relevance to this anomaly, Section 258 CrPC makes
it clear that a summons case can be instituted
“otherwise than upon complaint”, which would
obviously refer to a summons case being instituted
on a police report—see John Thomas v. K.
Jagadeesan [John Thomas v. K. Jagadeesan, (2001)
6 SCC 30 : 2001 SCC (Cri) 974] (at para 8).”
23. It could be seen that while answering the said question,
in paragraph 145, Nariman, J., while penning down the
majority judgment has observed that under Section 36-A(1)(a)
of the NDPS Act, it was only offences which were punishable
with imprisonment for a term of more than three years that
were exclusively triable by the Special Court.
24. It is thus clear that the statutory scheme, according to
the provisions of Section 36-A(5) of the NDPS Act, prescribes
that, for convicting a person under Section 58 of the NDPS Act,
he/she must be tried summarily.
25. Section 260 of the Cr.P.C. provides that the power to try
summarily is with any Judicial Magistrate, any Metropolitan
23
Magistrate or any Magistrate of the first class speciallyempowered in this behalf by the High Court. Section 262 of
the Cr.P.C. provides that the procedure specified in this Code
for the trial of summons-case shall be followed except as
hereinafter mentioned. A detailed procedure has been provided
for trial of summons cases by the Magistrate under Section
251 to 259 of the Cr.P.C.
26. 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.
b. Good Faith:
27. It will be relevant to refer to Section 69 of the NDPS Act,
which reads thus:
“69. Protection of action taken in good faith.—No
suit, prosecution or other legal proceeding shall lie
against the Central Government or a State
Government or any officer of the Central Government
or of the State Government or any other person
exercising any powers or discharging any functions
or performing any duties under this Act, for anything24
in good faith done or intended to be done under this
Act or any rule or order made thereunder.”
28. It could thus be seen that Section 69 of the NDPS Act
provides immunity to the Central Government, State
Government or any officer of the Central or State Government
or any other person exercising any powers or discharging any
functions or performing any duties under this Act or any rule
or order made thereunder from civil or criminal proceedings.
29. This Court, in the case of General Officer
Commanding, Rashtriya Rifles v. Central Bureau of
Investigation and Another9, after considering various earlier
pronouncements, observed thus:
“69. A public servant is under a moral and legal
obligation to perform his duty with truth, honesty,
honour, loyalty and faith, etc. He is to perform his
duty according to the expectation of the office and the
nature of the post for the reason that he is to have a
respectful obedience to the law and authority in order
to accomplish the duty assigned to him.
70. Good faith has been defined in Section 3(22) of
the General Clauses Act, 1897 to mean a thing which
is, in fact, done honestly, whether it is done
negligently or not. Anything done with due care and
attention, which is not mala fide, is presumed to have
been done in good faith. There should not be
personal ill will or malice, no intention to malign and
scandalise. Good faith and public good are though
the question of fact, are required to be proved by9
(2012) 6 SCC 228 : 2012 INSC 19625
adducing evidence. (Vide Madhavrao Narayanrao
Patwardhan v. Ram Krishna Govind Bhanu [AIR
1958 SC 767] , Madhav Rao Jivaji Rao
Scindia v. Union of India [(1971) 1 SCC 85 : AIR 1971
SC 530] , Sewakram Sobhani v. R.K.
Karanjiya [(1981) 3 SCC 208 : 1981 SCC (Cri) 698 :
AIR 1981 SC 1514] , Vijay Kumar Rampal v. Diwan
Devi [AIR 1985 SC 1669] , Deena v. Bharat
Singh [(2002) 6 SCC 336] and Goondla
Venkateswarlu v. State of A.P. [(2008) 9 SCC 613 :
(2008) 3 SCC (Cri) 829] )
71. In Brijendra Singh v. State of U.P. [(1981) 1 SCC
597 : AIR 1981 SC 636] this Court while dealing with
the issue held : (SCC p. 602, para 18)
“18. … The expression has several shades
of meaning. In the popular sense, the
phrase ‘in good faith’ simply means
‘honestly, without fraud, collusion, or
deceit; really, actually, without pretence
and without intent to assist or act in
furtherance of a fraudulent or otherwise
unlawful scheme’. (See Words and
Phrases, Permanent Edn., Vol. 18-A, p.
91.) Although the meaning of ‘good faith’
may vary in the context of different
statutes, subjects and situations, honest
intent free from taint of fraud or
fraudulent design, is a constant element of
its connotation. Even so, the quality and
quantity of the honesty requisite for
constituting ‘good faith’ is conditioned by
the context and object of the statute in
which this term is employed. It is a
cardinal canon of construction that an
expression which has no uniform,
precisely fixed meaning, takes its colour,
light and content from the context.”
72. For the aforesaid qualities attached to a duty one
can attempt to decipher it from a private act which
can be secret or mysterious. An authorised act or
duty is official and is in connection with authority.
26
Thus, it cannot afford to be something hidden or non-
transparent unless such a duty is protected under
some law like the Official Secrets Act.
73. Performance of duty acting in good faith either
done or purported to be done in the exercise of the
powers conferred under the relevant provisions can
be protected under the immunity clause or not, is the
issue raised. The first point that has to be kept in
mind is that such an issue raised would be
dependent on the facts of each case and cannot be a
subject-matter of any hypothesis, the reason being,
such cases relate to initiation of criminal prosecution
against a public official who has done or has
purported to do something in exercise of the powers
conferred under a statutory provision. The facts of
each case are, therefore, necessary to constitute the
ingredients of an official act. The act has to be official
and not private as it has to be distinguished from the
manner in which it has been administered or
performed.
74. Then comes the issue of such a duty being
performed in good faith. “Good faith” means that
which is founded on genuine belief and commands a
loyal performance. The act which proceeds on
reliable authority and accepted as truthful is said to
be in good faith. It is the opposite of the intention to
deceive. A duty performed in good faith is to fulfil a
trust reposed in an official and which bears an
allegiance to the superior authority. Such a duty
should be honest in intention, and sincere in
professional execution. It is on the basis of such an
assessment that an act can be presumed to be in
good faith for which while judging a case the entire
material on record has to be assessed.
75. The allegations which are generally made are,
that the act was not traceable to any lawful discharge
of duty. That by itself would not be sufficient to
conclude that the duty was performed in bad faith. It
is for this reason that the immunity clause is
contained in the statutory provisions conferring
powers on the law enforcing authorities. This is to
27
protect them on the presumption that acts performed
in good faith are free from malice or ill will. The
immunity is a kind of freedom conferred on the
authority in the form of an exemption while
performing or discharging official duties and
responsibilities. The act or the duty so performed are
such for which an official stands excused by reason
of his office or post.
76. It is for this reason that the assessment of a
complaint or the facts necessary to grant sanction
against immunity that the chain of events has to be
looked into to find out as to whether the act is dutiful
and in good faith and not maliciously motivated. It is
the intention to act which is important.”
30. It could be seen that this Court observed that anything
done with due care and attention, which is not mala fide, is
presumed to have been done in good faith. It has been
observed that there should not be personal ill will or malice,
no intention to malign and scandalise. It has been observed
that good faith and public good are though a question of fact,
they are required to be proved by adducing evidence. This
Court held that as to whether the performance of duty acting
in good faith either done or purported to be done in the
exercise of the powers conferred under the relevant provisions
can be protected under the immunity clause or not, would
depend upon the facts of each case and cannot be a subject
matter of any hypothesis. It has been held that for availing
28
such immunity, the act has to be official and not private.
31. This Court further observed that ‘good faith’ means, that
which is founded on genuine belief and commands a loyal
performance. It has been held that the provisions of immunity
clauses are made to protect the officers on the presumption
that the acts performed in good faith were free from malice or
ill will. This Court held that the act which may appear to be
wrong or a decision which may appear to be incorrect was not
necessarily a malicious act or decision. It has been held that
the presumption of good faith therefore could be dislodged only
by cogent and clinching material and so long as such a
conclusion was not drawn, a duty in good faith should be
presumed to have been done or purported to have been done
in exercise of the powers conferred under the statute. It has
been held that there has to be material to attribute or impute
an unreasonable motive behind an act to take away the
immunity clause.
c. Violation of Principles of Natural Justice:
32. A perusal of the judgment and order dated 22nd/24th
February 2007 would reveal that the allegations against the
present appellant were raised for the first time during the
29
arguments on behalf of the three accused persons who have
been acquitted by the learned Special Judge. It will be relevant
to refer to paragraph 49 of the said judgment and order dated
22nd/24th February 2007, which reads thus:
“49. During the course of arguments, it was argued
by learned defence counsel on behalf of accused
Surjit Singh, Angrej Singh and Mehardeen that since
the senior police officers had shifted the recovery of
opium from the name of accused Ran Singh to the
names of plantation by accused Surjit Singh, Angrej
Singh and Mehardeen, action under section 58 of the
N.D.P.S. Act be taken against the senior police
officers who are responsible for the same……”
33. After recording thus, the learned Special Judge has given
its findings in paragraph 50 which are reproduced
hereinabove. It is thus clear that the learned Special Judge
recorded the findings against the appellant as well as the other
police officers without even issuing notice to them.
34. The facts in the present case are somewhat similar to the
facts which fell for consideration before this Court in the case
of State of West Bengal and Others v. Babu
Chakraborthy10. In the said case, the accused persons were
convicted for an offence punishable under the NDPS Act. In
the appeal preferred by them, while allowing the appeal, the
10
(2004) 12 SCC 201 : 2004 INSC 492
30
High Court made several strictures and observations against
two officers of the West Bengal Police in an IPS Cadre. In the
said case also, the allegations against the said officers were
with regard to violation of provisions of Section 42 of the NDPS
Act. This Court, after considering various earlier judgments,
observed thus:
“30. Replying to the arguments of Mr Viswanathan,
Mr Tapash Ray, learned Senior Counsel submitted
that the operating portion of the impugned judgment
clearly brings out the perversity in the judgment.
According to him, the strictures that have been
passed against the appellants by the Division Bench
of the High Court are wholly unjustified and are liable
to be expunged. He is right in his submission. In our
view, the High Court was not justified and correct in
passing observations/strictures against Appellants 2
and 3 without affording an opportunity of being
heard, and it is in violation of a catena of
pronouncements of this Court that harsh or
disparaging remarks are not to be made against the
persons and authorities whose conduct comes into
consideration before courts of law unless it is really
necessary for the decision of the case. Likewise, the
directions issued by the High Court to the trial court
to lodge a complaint to the Magistrate having
jurisdiction for prosecuting Appellants 2 and 3 for
having committed an offence under Section 58 of the
Act read with Sections 166 and 167 of the Penal
Code, 1860 is not warranted. The observations made
by the High Court are liable to be expunged and
accordingly, we expunge the same including the
direction to lodge a complaint against Appellants 2
and 3.
31. As rightly pointed out by Mr Tapash Ray, the
observations of the High Court in the impugned
judgment passing strictures against the appellants31
have been made while against the record of the case
and penalise the two police officers who were
discharging their official duties as per the law. The
action taken by Appellants 2 and 3 has been taken
in the case of discharging of their official duties.
While discharging their duties, the official would
have violated certain provisions. That does not, in
our opinion, enable the court to pass strictures
against the officials and order compensation. There
is no evidence or circumstance to show that there
were any mala fides on the part of these officers.”
35. The learned Special Judge, without even giving notice to
her, only on the basis of the arguments advanced at the stage
of final hearing of the matter, made adverse observations
against her by almost finding her guilty of the offence
punishable under Section 58 of the NDPS Act. Moreover while
doing so, neither any notice nor was any opportunity of being
heard given to her. After the said judgment and order of
conviction/acquittal was recorded by the learned Special
Judge on 22nd/24th February 2007, within 2 days, a notice
under Section 58 of the NDPS Act was issued to the appellant
on 26th February 2007. The appellant, in response to the said
notice, appeared before the learned Special Judge on 15th
March 2007 and on 12th April 2007, she also filed a reply. In
the meantime, the appellant approached the High Court
challenging the said show-cause notice dated 26th February
32
2007. The High Court, vide order dated 19th May 2008, refused
to entertain the revision with the observation that the order
passed by the learned Special Judge should not be construed
as an expression of opinion on the merits of the matter.
Immediately on the very next day of the passing of the said
order of the High Court, the learned Special Judge proceeded
to hear the matter at a lightning speed. Within 10 days, from
20th May 2008 to 30th May 2008, the learned Special Judge
directed the matter to be heard on 7 dates. Though the transfer
order was issued on 26th May 2008 and the learned Special
Judge was directed to immediately relinquish the post/charge,
the learned Special Judge again kept the matter on 27th May
2008, 28th May 2008, 29th May 2008 and finally on 30th May
2008. During the said period, the appellant was directed to
supervise and ensure the maintenance of law and order
inasmuch as the situation had deteriorated on account of
some agitation. The same was also brought to the notice of the
learned Special Judge. However, on 30th May 2008, the learned
Special Judge proceeded to dictate and type the order and kept
the same in a sealed cover. It is thus clear that the learned
Special Judge had given a complete go-bye to all the principles
33
of natural justice.
36. It is a well-settled principle of law that justice should not
only be done but should be seen to be done. In this respect, it
will be relevant to refer to the following passage from Jackson’s
Natural Justice (1980 Edn.):
“The distinction between justice being done and
being seen to be done has been emphasised in many
cases. . . .
The requirement that justice should be seen to be
done may be regarded as a general principle which in
some cases can be satisfied only by the observance
of the rules of natural justice or as itself forming one
of those rules. Both explanations of the significance
of the maxim are found in Lord Widgery, C.J.’s
judgment in R. v. Home Secretary [(1977) 1 WLR 766,
772] , ex. p. Hosenball, where after saying that “the
principles of natural justice are those fundamental
rules, the breach of which will prevent justice from
being seen to be done” he went on to describe the
maxim as “one of the rules generally accepted in the
bundle of the rules making up natural justice”.
It is the recognition of the importance of the
requirement that justice is seen to be done that
justifies the giving of a remedy to a litigant even when
it may be claimed that a decision alleged to be vitiated
by a breach of natural justice would still have been
reached had a fair hearing been given by an impartial
tribunal. The maxim is applicable precisely when the
court is concerned not with a case of actual injustice
but with the appearance of injustice or possible
injustice. In Altco Ltd. v. Sutherland [(1971) 2 Lloyd’s
Rep 515] Donaldson, J., said that the court, in
deciding whether to interfere where an arbitrator had
not given a party a full hearing was not concerned
with whether a further hearing would produce a
different or the same result. It was important that the34
parties should not only be given justice, but, as
reasonable men, know that they had had justice or
“to use the time hallowed phrase” that justice should
not only be done but be seen to be done.
In R. v. Thames Magistrates’ Court, ex. p.
Polemis [(1974) 1 WLR 1371] , the applicant obtained
an order of certiorari to quash his conviction by a
stipendiary magistrate on the ground that he had not
had sufficient time to prepare his defence. The
Divisional Court rejected the argument that, in its
discretion, it ought to refuse relief because the
applicant had no defence to the charge.
It is again absolutely basic to our system that
justice must not only be done but must manifestly be
seen to be done. If justice was so clearly not seen to
be done, as on the afternoon in question here, it
seems to me that it is no answer to the applicant to
say: ‘Well, even if the case had been properly
conducted, the result would have been the same.
That is mixing up doing justice with seeing that
justice is done (per Lord Widgery, C.J. at p. 1375).”
37. This Court, in the case of P.D. Dinakaran (I) v. Judges
Inquiry Committee and Others11 has also observed thus:
41. In this case, we are concerned with the
application of first of the two principles of natural
justice recognised by the traditional English Law i.e.
nemo debet esse judex in propria causa. This
principle consists of the rule against bias or interest
and is based on three maxims: (i) No man shall be a
judge in his own cause; (ii) Justice should not only
be done, but manifestly and undoubtedly be seen to
be done; and (iii) Judges, like Caesar’s wife should be
above suspicion. The first requirement of natural
justice is that the Judge should be impartial and
neutral and must be free from bias. He is supposed
to be indifferent to the parties to the controversy. He
cannot act as Judge of a cause in which he himself
11
(2011) 8 SCC 380 : 2011 INSC 45235
has some interest either pecuniary or otherwise as it
affords the strongest proof against neutrality. He
must be in a position to act judicially and to decide
the matter objectively. A Judge must be of sterner
stuff. His mental equipoise must always remain firm
and undetected. He should not allow his personal
prejudice to go into the decision making. The object
is not merely that the scales be held even; it is also
that they may not appear to be inclined. If the Judge
is subject to bias in favour of or against either party
to the dispute or is in a position that a bias can be
assumed, he is disqualified to act as a Judge, and the
proceedings will be vitiated. This rule applies to the
judicial and administrative authorities required to
act judicially or quasi-judicially.
42. A pecuniary (bias) interest, however small it may
be, disqualifies a person from acting as a Judge.
Other types of bias, however, do not stand on the
same footing and the courts have, from time to time,
evolved different rules for deciding whether personal
or official bias or bias as to subject-matter or judicial
obstinacy would vitiate the ultimate
action/order/decision.
43. In R. v. Rand [(1866) LR 1 QB 230] the Queen’s
Bench was called upon to consider whether the
factum of two Justices being trustees of a hospital
and a friendly society respectively, each of which had
lent money to Bradford Corporation on bonds
charging the corporate fund were disqualified from
participating in the proceedings which resulted in
issue of certificate in favour of the corporation to take
water of certain streams without permission of the
mill owners. While answering the question in
negative, Blackburn, J. evolved the following rule:
“… There is no doubt that any direct
pecuniary interest, however small, in the
subject of inquiry, does disqualify a person
from acting as a judge in the matter; and
if by any possibility these gentlemen,
though mere trustees, could have been
liable to costs, or to other pecuniary loss36
or gain, in consequence of their being so,
we should think the question different
from what it is: for that might be held an
interest. But the only way in which the
facts could affect their impartiality, would
be that they might have a tendency to
favour those for whom they were trustees;
and that is an objection not in the nature
of interest, but of a challenge to the favour.
Wherever there is a real likelihood that the
judge would, from kindred or any other
cause, have a bias in favour of one of the
parties, it would be very wrong in him to
act; and we are not to be understood to
say, that where there is a real bias of this
sort this Court would not interfere; but in
the present case there is no ground for
doubting that the Justices acted perfectly
bona fide; and the only question is,
whether in strict law, under such
circumstances, the certificate of such
Justices is void, as it would be if they had
a pecuniary interest; and we think
that R. v. Dean and Chapter of
Rochester [(1851) 17 QB 1] is an authority,
that circumstances, from which a
suspicion of favour may arise, do not
produce the same effect as a pecuniary
interest.””CONCLUSION:
38. As already stated hereinabove, the matter went to the
High Court in revision. The High Court, by the impugned
judgment and order refused to interfere with the same and
upheld the order dated 30th May 2008. The said impugned
judgment and order was stayed by this Court vide order dated
37
26th October 2010.
39. When we opened the sealed cover on 24th October 2024
and perused the order dated 30th May 2008 passed by the
learned Special Judge, it became clear to us that the learned
Special Judge had acted in a predetermined manner. Though
the judgment and order of conviction/acquittal dated
22nd/24th February 2007 was challenged by both the State and
Ran Singh in an appeal and which appeal was admitted, the
learned Special Judge has observed that the judgment and
order of conviction/acquittal dated 22nd/24th February 2007
has not been challenged and has become final. It therefore
reflects total non-application of mind. We therefore find that
the order dated 30th May 2008 passed by the learned Special
Judge is also liable to be set aside on the said ground.
40. In the result, we pass the following order:
(i) The appeal is allowed; (ii) The judgment and order dated 14th October 2010
passed by the High Court in Criminal Revision No.
2194 of 2008 is quashed and set aside;
(iii) The observations made by the learned Special Judge
in the judgment and order of conviction/acquittal
38
dated 22nd/24th February 2007 in paragraphs 49 and
50 stand quashed and set aside; and
(iv) The notice issued by the learned Special Judge dated
26th February 2007 to the appellant under Section 58
of the NDPS Act and all subsequent proceedings
including the order dictated and typed on 30th May
2008 by the learned Special Judge shall stand
quashed and set aside.
41. Pending application(s), if any, shall stand disposed of.
………………………….J.
[B.R. GAVAI]
………………………………………J.
[PRASHANT KUMAR MISHRA]
………………………….J.
[K.V. VISWANATHAN]
NEW DELHI;
DECEMBER 13, 2024.
39