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Tuesday, April 20, 2021

non-compliance of Section 42 of NDPS Act =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. 12 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.

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

2

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:-

4

“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.”

5

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.

12

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.