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TMI Blog2021 (4) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion drawn by this Court in Karnail Singh 1 but in no case, total non-compliance of Section 42 can be accepted. Appeal allowed. - CRIMINAL APPEAL NO. 421 OF 2021 - - - Dated:- 16-4-2021 - Uday Umesh Lalit And K. M. Joseph , JJ. For the Petitioner : Mr. Praveen Kumar, Adv. Mr. Rajnish Kumar Jha, AOR For the Respondent : Mr. Rakesh Kumar Mudgal, AAG Dr. Monika Gusain, AOR JUDGMENT 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 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 registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation that all the accused are selling poppy straw in a vehicle bearing no.GUD-4997 upon a 'Kacha Rasta at Rori- Jatana 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 witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel 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. 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 Haryana (2009) 8 SCC 539 , followed in subsequent decisions in Sukhdev Singh v. State of Haryana (2013) 2 SCC 212 , and, State of Rajasthan v. Jagraj Singh alias Hansa (2016) 11 SCC 687 . 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 ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 (2016) 11 SCC 687 , 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-complian ..... X X X X Extracts X X X X X X X X Extracts X X X X
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