1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.421 OF 2021
BOOTA SINGH & OTHERS …Appellants
Versus
STATE OF HARYANA …Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. This appeal challenges the judgment and final order dated 03.03.2020
passed by the High Court of Punjab & Haryana at Chandigarh dismissing
CR A-S-1759-SB-2004 preferred by the appellants and affirming their
conviction and sentence under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“the NDPS Act” for short).
2. The basic facts and the case of prosecution as recorded by the High
Court in its judgment are as under:
“2. The facts as put forth by the prosecution are to the effect
that on 28.01.2002, S.I. Nand Lal alongwith fellow police
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officials were present at the canal bridge on Surtia-Rori road,
where he received a secret information to the effect that the
accused are selling poppy straw in a vehicle bearing registration
number GUD-4997 on a ‘kacha path’ at Rori-Jatana road and
they can be apprehended if raid is conducted. Accordingly, a
raid was conducted and the accused were found sitting in the
jeep bearing registration number GUD-4997 at the aforesaid
place. Major Singh, co-accused of the appellants, managed to
slip away, whereas, the appellants were apprehend at the spot.
They were found sitting upon two bags kept in the said jeep.
Notices under Section 50 of the Act were served upon them but
the appellants reposed faith upon the police officials. The
search of the bags led to the recovery of poppy straw. One bag
was containing 39 kg of poppy straw and the second bag was
containing 36 kg of poppy straw. Two samples weighing 100
grams each were separated from each bag. The sample parcels
and the bulk parcels were converted into separate parcels and
sealed with the seal bearing impression 'CS'. The jeep
alongwith weighing scale, two weights of 500 grams each were
also recovered and taken into possession vide recovery memos.
Ruqa was recorded and dispatched to the police station on the
basis thereof, the FIR was registered. Subsequently, Major
Singh, co-accused, was arrested. and on completion of
investigation, the challan was presented in the Court.
3. The charge was framed. The contents thereof were read
over and explained to the appellants, to which they pleaded not
guilty and claimed trial.
4. In support of its allegations, the prosecution has
examined four witnesses. Inspector Nand Lal (PW4) has
conducted the search of the accused in the presence of ASI
Jaswant Singh (PW3). The case property was retained in the
malkhana by Kuldeep Singh (PW2) and Constable Gurjit Singh
(PW 1) took the sample parcels to the FSL. The prosecution has
also 2 of 10 produced documentary evidence to substantiate the
version as put forth by it.”
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3. By order dated 15.03.2002, on an application preferred by him, the
vehicle in question was released by the Trial Court in favour of accused
Gurdeep Singh.
4. During trial, PW4 Inspector Nand Lal, the Investigating Officer
deposed in his examination-in-chief as under:
“On 28.1.2002 I was posted as Sub Inspector/SHO in Police
Station Rori. On that day, I alongwith ASI Jaswant Singh and
other police officials were present at the canal bridge on Surtia
Rori-road in connection with patrolling. I received a secret
information that all the accused are selling poppy straw in a
vehicle bearing no.GUD-4997 upon a 'Kacha Rasta at RoriJatana road and can be apprehended red handed if a raid is
conducted. I tried to join two persons who were going to water
the fields in the investigations but they refused. Thereafter I
organised a raiding party and conducted a raid. All the accused
were found in the jeep bearing no GUD-4997, upon a kacha
rasta by the side of Rori-Jatana Road, Upon seeing the police
party, one of the accused, namely, Major fled the spot. I knew
the accused Major Singh since long. Remaining three accused
were apprehended at the spot. Accused Boota Singh, Gurdeep
Singh and Gurmahender Singh alias Mitta were found sitting
upon two bags lying in the said Jeep. Thereafter, I served
notices Ex.PC, Ex.PD and Ex.PE upon accused Gurdeep, Boota
and Gurmahender Singh respectively u/s 50 of NDPS asking
them as to whether they desired their search before a gazetted
officer or a Magistrate. Vide replies Exl.PC/1.1, Ex.PDA and
Ex.PE/I, accused Gurdeep Singh, Boota Singh and
Gurmahender Singh alias Mitta declined the offer and reposed
faith in the police. …”
In his cross-examination, the witness stated:-
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“I did not record the secret information in writing. Wireless in
my jeep was out of order at that time. I did not obtain any
search warrants for conducting the search of the jeep of accused
during night hours. I did not record any ground for not
obtaining the requisite search warrants in my police file. The
writing work was done while sitting in the jeep.”
5. After considering the evidence on record, the Trial Court by its
judgment and order dated 12.08.2004, acquitted accused Major Singh but
convicted accused Boota Singh, Gurdeep Singh and Gurmohinder Singh,
under Section 15 of the NDPS Act and sentenced them to suffer rigorous
imprisonment for 10 years with imposition of fine in the sum of
Rs.1,00,000/-, in default whereof they were directed to undergo further
rigorous imprisonment for a period of two years.
On the question of applicability of Section 42 of the NDPS Act, the Trial
Court stated:-
“ … Learned counsel sought acquittal of accused due to noncompliance of Section 42 of N.D.P.S. Act. However, above
said argument could help the accused if recovery had been
effected from the house, building etc. of the accused.
Admittedly, recovery in question was effected from the accused
while they were sitting on road in a jeep at a public place.
Therefore, case of accused would be covered by Section 43 of
N.D.P.S. Act and not by Section 42 of N.D.P.S. Act. Under
these circumstances, argument of learned counsels for accused
is overruled.”
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6. The convicted accused, being aggrieved, preferred the aforementioned
Criminal Appeal before the High Court, which was dismissed by the High
Court.
On the question whether the matter came within the scope of Section 42 of
the NDPS Act, the High Court observed:-
14. Furthermore, in the case in hand, the accused were
present in a jeep on a public path and in such circumstance, the
provisions of Section 43 and not of 42 of the Act come into
play. As per explanation to Section 43 of the Act, the public
place includes a
conveyance also. Section 43 of the Act contemplates a seizure
made in a public place or in transit. As such, Section 42 of the
Act is not applicable to the facts of the present case …”
7. In this appeal preferred by Boota Singh, Gurdeep Singh and
Gurmohinder Singh challenging the correctness of the decisions of the
courts below, we heard Mr. Praveen Kumar, learned counsel for the
appellants and Mr. Rakesh Mudgal, learned AAG for the State.
8. Mr. Praveen Kumar submitted inter alia:
a. The vehicle in question was a private vehicle belonging
to accused Gurdeep Singh and was not a public
conveyance, though parked on a public road.
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b. As accepted by PW4 Inspector Nand Lal, the secret
information was not recorded in writing nor any grounds
were recorded for not obtaining the requisite search
warrants.
c. The instant case would not be come under Section 43 but
would be governed by the provisions of Section 42 of the
NDPS Act.
d. Section 42 having not been complied with at all, the
appellants were entitled to acquittal in terms of law laid
down in the Constitution Bench decision of this Court in
Karnail Singh v. State of Haryana1, followed in
subsequent decisions in Sukhdev Singh v. State of
Haryana2, and, State of Rajasthan v. Jagraj Singh alias
Hansa3.
1(2009) 8 SCC 539
2(2013) 2 SCC 212
3(2016) 11 SCC 687
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9. Countering the submissions, Mr. Rakesh Mudgal, learned AAG
submitted that the courts below were right in observing that the instant case
would be governed by the provisions of Section 43 of the NDPS Act. It was
however accepted by the learned counsel that there was no material on
record to conclude that the vehicle in question was a public conveyance.
10. In Karnail Singh
1
, the Constitution Bench of this Court concluded:-
“35. In conclusion, what is to be noticed is that Abdul
Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not
require literal compliance with the requirements of Sections
42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 :
2001 SCC (Cri) 1217] hold that the requirements of Sections
42(1) and 42(2) need not be fulfilled at all. The effect of the two
decisions was as follows:
(a) The officer on receiving the information [of the
nature referred to in sub-section (1) of Section 42] from any
person had to record it in writing in the register concerned
and forthwith send a copy to his immediate official superior,
before proceeding to take action in terms of clauses (a) to
(d) of Section 42(1).
(b) But if the information was received when the officer
was not in the police station, but while he was on the move
either on patrol duty or otherwise, either by mobile phone,
or other means, and the information calls for immediate
action and any delay would have resulted in the goods or
evidence being removed or destroyed, it would not be
feasible or practical to take down in writing the information
given to him, in such a situation, he could take action as per
clauses (a) to (d) of Section 42(1) and thereafter, as soon as
it is practical, record the information in writing and
forthwith inform the same to the official superior.
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(c) In other words, the compliance with the requirements
of Sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the
information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable period,
that is, after the search, entry and seizure. The question is
one of urgency and expediency.
(d) While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed
compliance with satisfactory explanation about the delay
will be acceptable compliance with Section 42. To illustrate,
if any delay may result in the accused escaping or the goods
or evidence being destroyed or removed, not recording in
writing the information received, before initiating action, or
non-sending of a copy of such information to the official
superior forthwith, may not be treated as violation of Section
42. But if the information was received when the police
officer was in the police station with sufficient time to take
action, and if the police officer fails to record in writing the
information received, or fails to send a copy thereof, to the
official superior, then it will be a suspicious circumstance
being a clear violation of Section 42 of the Act. Similarly,
where the police officer does not record the information at
all, and does not inform the official superior at all, then also
it will be a clear violation of Section 42 of the Act. Whether
there is adequate or substantial compliance with Section 42
or not is a question of fact to be decided in each case. The
above position got strengthened with the amendment to
Section 42 by Act 9 of 2001.”
(Emphasis added)
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11. In Jagraj Singh alias Hansa
3
, the facts were more or less identical.
In that case, the vehicle (as observed in para 5.3 of the decision) was not a
public transport vehicle. After considering the relevant provisions and some
of the decisions of this Court including the decision in Karnail Singh
1
, it
was observed:-
“14. What Section 42(2) requires is that where an officer takes
down an information in writing under sub-section (1) he shall
send a copy thereof to his immediate officer senior. The
communication Ext. P-15 which was sent to the Circle Officer,
Nohar was not as per the information recorded in Ext. P-14 and
Ext. P-21. Thus, no error was committed by the High Court in
coming to the conclusion that there was breach of Section
42(2).
. . . . . . . . . .
. . . . .
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16. In this context, it is relevant to note that before the
Special Judge also the breach of Sections 42(1) and 42(2) was
contended on behalf of the defence. In para 12 of the judgment
the Special Judge noted the above arguments of defence.
However, the arguments based on non-compliance with Section
42(2) were brushed aside by observing that discrepancy in Ext.
P-14 and Ext. P-15 is totally due to clerical mistake and there
was compliance with Section 42(2). The Special Judge coming
to compliance with the proviso to Section 42(1) held that the
vehicle searched was being used to transport passengers as has
been clearly stated by its owner Vira Ram, hence, as per the
Explanation to Section 43 of the Act, the vehicle was a public
transport vehicle and there was no need of any warrant or
authority to search such a vehicle. The High Court has reversed
the above findings of the Special Judge. We thus, proceed to
examine as to whether Section 43 was attracted in the present
case which obviated the requirement of Section 42(1) proviso.
. . . . . . . . . .
. . . . .
29. After referring to the earlier judgments, the Constitution
Bench came to the conclusion that non-compliance with
requirement of Sections 42 and 50 is impermissible whereas
delayed compliance with satisfactory explanation will be
acceptable compliance with Section 42. The Constitution Bench
noted the effect of the aforesaid two decisions in para 5. The
present is not a case where insofar as compliance with Section
42(1) proviso even an argument based on substantial
compliance is raised there is total non-compliance with Section
42(1) proviso. As observed above, Section 43 being not
attracted, search was to be conducted after complying with the
provisions of Section 42. We thus, conclude that the High Court
has rightly held that non-compliance with Section 42(1) and
Section 42(2) were proved on the record and the High Court has
not committed any error in setting aside the conviction order.”
(Emphasis added)
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12. The evidence in the present case clearly shows that the vehicle was
not a public conveyance but was a vehicle belonging to accused Gurdeep
Singh. The Registration Certificate of the vehicle, which has been placed on
record also does not indicate it to be a Public Transport Vehicle. The
explanation to Section 43 shows that a private vehicle would not come
within the expression “public place” as explained in Section 43 of the NDPS
Act. On the strength of the decision of this Court in Jagraj Singh alias
Hansa
3
, the relevant provision would not be Section 43 of the NDPS Act
but the case would come under Section 42 of the NDPS Act.
13. It is an admitted position that there was total non-compliance of the
requirements of Section 42 of the NDPS Act.
14. The decision of this Court in Karnail Singh
1
as followed in Jagraj
Singh alias Hansa
3
, is absolutely clear. Total non-compliance of Section 42
is impermissible. The rigor of Section 42 may get lessened in situations
dealt with in the conclusion drawn by this Court in Karnail Singh
1
but in no
case, total non-compliance of Section 42 can be accepted.
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15. In the circumstances, the courts below fell in error in rejecting the
submissions advanced on behalf of the appellants. We, therefore, allow this
appeal, set-aside the view taken by the High Court and acquit the appellants
of the charge levelled against them. The appellants be released forthwith
unless their custody is required in connection with any other offence.
……………………..J.
[Uday Umesh Lalit]
……………………..J.
[K.M. Joseph]
New Delhi;
April 16, 2021.
