'Failed To Supply Grounds Of Arrest, Record Reasons For Search': Punjab & Haryana High Court Declares Arrest 'Illegal' In NDPS Case
The Punjab and Haryana High Court has declared the arrest of an accused in a drugs case illegal, finding that no reasons for the search of his premises were recorded and that the investigating agency also failed to provide the grounds of arrest in compliance with BNSS.It was alleged that on basis of secret information, a huge amount of drug money was recovered in the form of foreign currency...
The Punjab and Haryana High Court has declared the arrest of an accused in a drugs case illegal, finding that no reasons for the search of his premises were recorded and that the investigating agency also failed to provide the grounds of arrest in compliance with BNSS.
It was alleged that on basis of secret information, a huge amount of drug money was recovered in the form of foreign currency from accused person's premises.
Justice Mahabir Singh Sindhu said, "there is force in the argument raised by learned Senior counsel that it was imperative for the Investigating Agency to supply the “grounds of arrest” to the petitioner, but they miserably failed to do so and thus, negated the mandatory provisions of Section 50 of Cr.P.C. (Section 47 of BNSS) as well as breached the safeguards provided under Article 22 of the Constitution. As such, the initial arrest of the petitioner was wholly illegal; hence unsustainable in law."
The Court further referring to Section 185 BNSS said, "recording of reasons is an essential step for conducting search of the premises and failure to do so, would negate the mandate of Section 185 BNSS and will render the search illegal."
In the present case, the Court noted that the premises of petitioner at Phagwara was found locked, but the police party broke open the lock.
"Here, it is noteworthy that from perusal of entire police file, it is nowhere discernible that any reason was recorded for breaking lock of the premises or that intimation in terms of Section 185(5) of BNSS was sent to the concerned Magistrate; thus, there is complete negation of mandatory provisions envisaged under Section 185 BNSS," the judge found.
The Court was hearing a plea under Section 528 of the BNSS in FIR, registered under Sections 309(4) and 191(3) read with Section 190 of BNS and Sections 21-C, 25, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act.
Among other prayers the plea sought setting aside the remand order passed by learned Judicial Magistrate First Class, , whereby petitioner was remanded to police custody for three days and to release him from custody forthwith.
Senior counsel for the petitioner Bipan Ghai contended that no “grounds of arrest” were furnished to the petitioner, which is mandatory; hence his arrest is per se illegal and even after arrest of petitioner, none of his family members had been informed regarding alleged arrest.
Opposing the plea, the State counsel AAG T.P.S. Walia submitted that petitioner is member of a cartel along with other co-accused, who are selling contraband, receiving huge drug money and these type of persons have ruined the State. He also refused to accept that grounds of arrest was not provided.
After examining the submissions, the Court pointed that "Police papers have been examined carefully and upon perusal of the same, it is nowhere discernible that “grounds of arrest” were supplied to the petitioner; rather it is only the arrest memo, which was given to him."
Reliance was placed on Pankaj Bansal's case to underscore that it would be necessary, henceforth, that a copy of written “grounds of arrest” be furnished to the arrested person as a matter of course and without exception.
Justice Sindhu rejected the plea of “substantial compliance” raised by the State counsel who had contended that there is sufficient compliance while conducting search and seizure. "...But the same is not acceptable for the reason that when a safeguard or right is provided to an accused, compliance thereof should be made strictly in accordance with law," the Court added.
The judge also rejected the State's submission that once the initial arrest has been sanctified by the judicial order, petitioner cannot challenge the legality of the arrest later on.
"The contention is liable to be rejected in view of the old legal maxim, i.e.“Sublato Fundamento Cadit Opus”; which means that once foundation is removed, the superstructure will also fall and reference in this regard be made to Chairman-cum-Managing Director, Coal India Limited and others Versus Ananta Saha and others (2011) 5 SCC 142," said the Court.
In the light of the above, the Court held that the impugned remand order passed by the JMIC shall not validate the arrest of the petitioner and, "same is held to be illegal."
Consequently, the plea was allowed.
Bipan Ghai, Senior Advocate with Nikhil Ghai and Akhil Godara, Advocates appeared for the petitioner.
Mr. T.P.S. Walia, AAG, Punjab.
Petition filed through Parvez Chaudhary and Rahil Mahajan Advocates.