Najmunisha vs State Of Gujarat 2024 INSC 290 :: [2024] 4 S.C.R. 442 – Ss 41,42,67 NDPS Act –

NDPS Act, 1986; Section 42– Absolute non­compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well­reasoned explanations for such delay. (Para 31-32)

NDPS Act, 1986; Section 41 – Empowered Gazetted Officer must have reason to believe that an offence has been committed under Chapter IV of the NDPS Act 1985, which necessitated the arrest or search. As per Section 41(2) of the NDPS Act 1985, such reason to believe must arise from either personal knowledge of the said Gazetted Officer or information given by any person to him. Additionally, such knowledge or information is required to be reduced into writing by virtue of expression “and taken in writing” used therein – Rejected argument that the expressions “personal knowledge” and “and taken in writing” contemplated by Section 41(2) of the NDPS Act 1985 ought to be read disjunctively, thereby eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer. (Para 20)

NDPS Act, 1986; Section 53,67-Indian Evidence Act, 1872; Section 25– 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. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. (Para 52)

Indian Evidence Act, 1872; Section 6 – Test for “acts forming part of same transaction- it is based on spontaneity and immediacy of such statement or fact in relation to the fact in issue. Provided that if there was an interval which ought to have been sufficient for purpose of fabrication then the said statement having been recorded, with however slight delay there may be, is not part of res gestae – Referred to Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh (1996) 6 SCC 241 and Dhal Singh Dewangan v. State of Chhattisgarh (2016) SCC OnLine SC 983. (Para 26-27)

NDPS Act 1985 ; Section 41 –Power of search and seizure- Such power is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations. At the same time, it is not legitimate to assume that Article 20(3) of the Constitution of India would be affected by the provisions of search and seizure. statutory provisions conferring authorities with the power to search and seize are a mere temporary interference with the right of the accused as they stand well regulated by reasonable restrictions emanating from the statutory provisions itself. Thence, such a power cannot be considered as a violation of any fundamental rights of the person concerned – Referred to MP Sharma v. Satish Chandra Sharma, District Magistrate, Delhi 1954 SCR 1077. (Para 42)

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