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2004 (4) TMI 533 - SC - Indian LawsWhether Section 42 of the NDPS Act applies to the facts of this case? Held that - In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police was also a member of the searching party. We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of Police was a member of the search party and was exercising his authority under Section 41 of the NDPS Act, the proviso to Section 42 were not attracted. Appeal is allowed, the judgment and order of the High Court is set aside and the respondents are sentenced to undergo rigorous imprisonment for ten years each under Section 15 of the NDPS Act and to pay a fine of ₹ 1,00,000/-, in default to suffer further rigorous imprisonment for a period of two years. The respondents shall be taken into custody to serve out the sentence subject to the provisions of Section 428 of the Criminal Procedure Code.
Issues:
1. Application of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Compliance with the mandatory requirements of Section 42 and Section 50. 3. Interpretation of the provisions of Section 42 and Section 50 in the context of the case. 4. The impact of the presence of a Superintendent of Police during the search. 5. Comparison of Section 42 and Section 43 of the NDPS Act in relation to the search conducted. Analysis: 1. Application of Sections 42 and 50: The State of Haryana appealed against the High Court's acquittal of the respondents under Section 15 of the NDPS Act due to non-compliance with Sections 42 and 50. The trial court had found the respondents guilty, sentencing them to rigorous imprisonment and a fine. The High Court acquitted them based on non-compliance with the statutory requirements. 2. Compliance with mandatory requirements: The High Court held that the search was invalid as the provisions of Section 50 required informing the accused of their right to be searched in the presence of a Magistrate or a gazetted officer. It also found non-compliance with Section 42, as the SHO did not record the grounds for his belief before the search. The trial was deemed vitiated due to these non-compliances. 3. Interpretation of Section 42 and Section 50: The Supreme Court analyzed the application of Section 50, emphasizing that it applies to personal searches, not searches of premises. The Court cited various precedents to support the interpretation that Section 50 was not applicable to the case as the recovery was from a vehicle search, not a personal search. Regarding Section 42, the Court clarified that it did not apply to the case as the search was conducted in a public place, falling under Section 43. 4. Impact of the Superintendent of Police: The presence of the Superintendent of Police during the search was crucial. The Court noted that when a gazetted officer conducts a search under Section 41, as in this case, compliance with the proviso to Section 42 was not necessary. Therefore, the presence of the Superintendent of Police, a gazetted officer, exempted the search party from the requirements of Section 42. 5. Comparison of Section 42 and Section 43: The Court differentiated between Sections 42 and 43, highlighting that Section 42 pertains to searches of enclosed places, while Section 43 applies to seizures in public places. Since the search of the vehicle occurred on a public highway, Section 43 governed the search, eliminating the need to comply with the proviso to Section 42. In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's judgment. The respondents were sentenced to rigorous imprisonment and a fine under Section 15 of the NDPS Act. The Court clarified that Section 50 was not applicable due to the nature of the search, and Section 42 did not apply as the search was conducted in a public place under Section 43. The presence of the Superintendent of Police further validated the search, exempting it from the requirements of Section 42.
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