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TMI Blog2004 (4) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atrolling duty and was moving about in a government jeep. On the way they met Mahinder Singh Ahlawat, Superintendent of Police, whereafter alongwith him they started checking vehicles moving on the highway at about 8.00 p.m. For this they held a naka bandi on the turning of village Dhanora. At about that time a tanker bearing No.URM-2092 came from the side of Sadhora. It was signalled to stop, but rather than stopping, the tanker sped away. This gave rise to suspicion and therefore the tanker was chased and compelled to stop. It was found that there were three persons sitting in the cabin of the tanker and it was being driven by respondent Mohan Krishan. The others two, namely Jarnail Singh and Prithvi Raj were sitting with him. They were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds for his belief before entering upon the search that he had reasons to believe that some contraband offending the NDPS Act was being carried in the vehicle and that an attempt to get a search warrant from a competent Magistrate would frustrate the object or facilitate escape of the offender. Consequently the trial was vitiated also for non-compliance of the provisions of the proviso to Section 42(1) of the NDPS Act. In the appeal before us counsel for the State of Haryana contended that the High Court was entirely wrong in holding that the provisions of Sections 42 and 50 of the NDPS Act applied to the facts and circumstances of this case. He argued that the search was not made in a private enclosed place but was made in a public pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral decisions of this Court including Kalema Tumba vs. State of Maharashtra and another : (1999) 8 SCC 257 ; Gurbax Singh vs. State of Haryana : (2001) 3 SCC 28 ; Madan Lal vs. State of H.P. : (2003) 7 SCC 465 ; Birakishore Kar vs. State of Orissa : (2000) 9 SCC 541 and Saikou Jabbi vs. State of Maharashtra : (2004) 2 SCC 186. The language of Section 50 is clear and unambiguous and the law so well settled that it is not possible to take a different view. We must, therefore, hold that Section 50 of the NDPS Act did not apply to the facts of this case, where on search of a tanker, a vehicle, poppy husk was recovered. This not being a case of personal search, Section 50 was not applicable. Moreover there was no prior information regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. In the result this 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 Rs.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. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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