2021 (4) TMI 703 - SC - Indian Laws

Smuggling - poppy straw - requirement of search warrants for conducting raids - public conveyance or not - non-compliance of Section 42 of N.D.P.S. Act - HELD THAT - 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 2016 (7) TMI 44 - SUPREME COURT , the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act - 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. Appeal allowed.

Summary

Issues Involved:
1. Applicability of Section 42 vs. Section 43 of the NDPS Act.
2. Compliance with procedural requirements under Section 42 of the NDPS Act.
3. Legality of the search and seizure conducted by the police.

Issue-wise Detailed Analysis:

1. Applicability of Section 42 vs. Section 43 of the NDPS Act:
The primary issue in this case was whether the search and seizure conducted by the police fell under Section 42 or Section 43 of the NDPS Act. The prosecution argued that the case was governed by Section 43, which pertains to searches in public places, including conveyances. The High Court supported this view, stating: “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.”

However, the appellants contended that the vehicle was a private vehicle, not a public conveyance, thus necessitating compliance with Section 42, which deals with searches in private places. The Supreme Court agreed with the appellants, noting: “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.” Consequently, the Court concluded that the case should be governed by Section 42 and not Section 43 of the NDPS Act.

2. Compliance with Procedural Requirements under Section 42 of the NDPS Act:
Section 42 mandates that any information received by an officer regarding narcotic drugs must be recorded in writing and communicated to a superior officer before conducting a search. The prosecution admitted that the secret information was not recorded in writing, nor were any search warrants obtained. The Supreme Court emphasized the importance of compliance with Section 42, citing the precedent set in Karnail Singh v. State of Haryana, which stated: “total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible.”

The Court reiterated that while delayed compliance with Section 42 might be acceptable under certain urgent circumstances, total non-compliance is not. The Court observed: “It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act.”

3. Legality of the Search and Seizure Conducted by the Police:
Given the non-compliance with Section 42, the legality of the search and seizure was called into question. The Supreme Court referred to the decision in Jagraj Singh alias Hansa, which held that non-compliance with Section 42(1) and Section 42(2) could not be overlooked. The Court concluded: “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 but in no case, total non-compliance of Section 42 can be accepted.”

Conclusion:
The Supreme Court found that the lower courts erred in applying Section 43 instead of Section 42 and in overlooking the non-compliance with procedural requirements. The Court allowed the appeal, set aside the High Court’s judgment, and acquitted the appellants. The Court ordered: “The appellants be released forthwith unless their custody is required in connection with any other offence.”