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Synopsis

The Supreme Court recently quashed criminal proceedings against senior IPS officer Bharti Arora in an alleged drug planting case under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court found that the Special Judge had violated the principle of natural justice, acted with a predetermined mindset, and demonstrated a complete lack of application of mind.

A bench of Justices B.R. Gavai and K.V. Vishwanathan upheld Arora's appeal, challenging the Punjab and Haryana High Court’s October 14, 2010 order, which had earlier affirmed the May 30, 2008 ruling by the Presiding Officer of the Special Court in Kurukshetra.

The Special Judge had placed the typed and dictated order relating to the proceedings initiated against the appellant for the offence punishable under Section 58 of the NDPS Act in a sealed cover to be delivered by the successor Special Judge.

The apex court found the Special Judge had given a complete go-bye to the principle of natural justice without even issuing notice to the police officers in proceedings which were to be conducted by the Magistrate only as per the statute. It noted the judge had acted in a "predetermined manner", reflecting "total non application of mind".

According to the facts of the case, the appellant was posted as Superintendent of Police, Kurukshetra from May 21, 2004, and March 18, 2005.

On January 6, 2005, the police party on secret information raided the residence of one Ran Singh and allegedly recovered 8.700 kg of opium. Two days later on January 8, 2005, the accused Ran Singh sent a representation to the SP, claiming the opium was planted upon him and he was innocent.

The appellant, utilising her powers as the SP, took cognizance of the application and directed Ram Phal, DSP 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. January 9, 2005, and on the same day, the discharge report of Ran Singh was prepared. A discharge application was filed by Ran Singh on January 10, 2005 before the Special Judge, but it was dismissed.

The Special Judge felt the investigating agency acted in suspicious manner and asked the Director General of Police, Haryana and Inspector general of Police, Ambala Range, Ambala to conduct an enquiry, which maintained that Ran Singh was innocent, and that the opium was planted by the three accused due to some pre-existing enmity.

On February 22, 2007, the Special Judge convicted Ran Singh and acquitted Surjeet Singh, Angrez Singh and Mehar Deen. The Special Judge said that the story of false implication of Ran Singh was found as false and concocted. The judge issued show cause notice to the appellant under Section 58 of NDPS Act.

Having heard the counsel, the bench found the Special Judge's findings that the present appellant and the other police officers had though exercised their powers under Sections 42, 43 and 44 of the NDPS Act, but they were not exercised in a bona fide manner, "were beset with several legal infirmities".

"We find that the judgment and order dated 22nd/24th February 2007 passed by the Special Judge so also the order dictated by the Special Judge on 30th May2008 and kept it in a sealed cover to be pronounced by the successor of the Special Judge are unsustainable in law for more than one reason. Further, there has also been gross violation of principles of natural justice," the bench held.

Referring to the provisions, the bench said 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.

"It is thus clear that the 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 CrPC has also not been followed," the bench said.

Referring to the concept of good faith, the court also referred to Section 69 of the NDPS Act, which 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.

In the case, the bench noted the Special Judge recorded the findings against the appellant as well as the other police officers without even issuing notice to them, in violation of the principle of natural justice.

"Without even giving notice to her, only on the basis of the arguments advanced at the stage of final hearing of the matter, the special judge made adverse observations against her by almost finding her guilty of the offence punishable under Section 58 of the NDPS Act," the bench said.

The court noted the Special Judge proceeded to hear the matter at lightning speed.

Within 10 days, from May 20, 2008 to May 30, 2008, the Special Judge directed the matter to be heard on seven dates. Though the transfer order of the judge was issued on May 26, 2008 and the Special Judge was directed to immediately relinquish the post/charge, the Special Judge again kept the matter on May 27, 2008, May 28, 2008, May 29, 2008 and finally on May 30, 2008, court highlighted.

Though the appellant was on important law and order duties, the Special Judge on May 30, 2008, proceeded to dictate and type the order and kept the same in a sealed cover.

"It is thus clear that the Special Judge had given a complete go-bye to all the principles of natural justice," the bench said.

Emphasising that it is a well-settled principle of law that justice should not only be done but should be seen to be done, the bench which opened the sealed cover of the order dictated by the Special Judge on May 30, 2008, said, it was clear that the judge had acted in a predetermined manner.

In its final order, the bench set aside the High Court as well as the Special Judge's orders and all subsequent proceedings.

Case Title: Bharti Arora Vs The State of Haryana