Supreme Court Allows Appeal Due to Police Non-Compliance of Section 42 of NDPS Act

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An appeal was filed by the Petitioners challenging the judgment and final Order dated 03.03.2020 passed by the High Court of Punjab & Haryana at Chandigarh which confirmed their conviction and sentence under Section 15 of the NDPS Act, 1985. The Supreme Court reversed the Order and acquitted the appellants of the offences.

Facts

In the present case, the Petitioners have challenged the Order given by the Punjab and Haryana High Court on 03-March-2020 under which the appellants were convicted and sentenced under Section 15 of the NDPS Act. The appellants were arrested on 28-Jan-2002 wherein they were found sitting in a jeep at the raid location which had two bags in it. With the search of the bags around 75kg of poppy straw was seized. After the charges were framed and the trial Court went through the evidence, one of the accused in that case namely Major Singh was acquitted. However, the other three accused were sentenced to 10years of rigorous imprisonment and a fine of Rs.1, 00,000 under Section 15 of the NDPS Act.

The appellant then appealed to the High Court which was also dismissed by the High Court. In this appeal preferred by Boota Singh, the appellants pray for the correctness of the decisions of the Courts below.

Petitioner’s Arguments 

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The Learned Counsel for the Appellants-Petitioners contended that amongst other things, the vehicle in question was a private vehicle and not a public conveyance though it was parked on a public road and it belonged to the accused Gurdeep Singh. This, therefore, does not justify the ground of searching a private vehicle parked on the roadside without a warrant.

The learned counsel also pointed towards the statement by Inspector Nand Lal wherein he admitted that none of the secret information that they got about the drugs was recorded in any form nor did they obtain the requisite search warrants. Talking about the Sections imposed, such an instant case like this would not fall under Section 43 of the NDPS act but be administered under Section 42 of the same act.

Furthermore, the learned counsel supported his arguments of the appellants being entitled to acquittal by giving references to some cases namely Karnail Singh v. State of Haryana (2009) 8 SCC 539, Sukhdev Singh v. State of Haryana (2013) 2 SCC 212, State of Rajasthan v. Jagraj Singh alias Hansa (2016) 11 SCC 687.

Respondent’s Arguments 

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The Learned Counsel of the Respondent opposed the Learned Counsel of Petitioners’ arguments. He stated that the Courts below were right in governing the case under Section 43 of the NDPS Act rather than Section 42 of the same act. However, the learned counsel did agree and admit there was no material proof on record that could state that the vehicle in question was a public conveyance.

Courts’ Observation 

The Court primarily decided to examine the facts and decisions made under the cases referred by the counsel of the Petitioners. Examining the details of the Karnail Singh v. State of Haryana case, the Court observed that the compliance with the requirements of Sections 42(1) and 42(2) required the officer to write down the information that was received and send a copy of the same to the superior officer before proceeding with the entry and search process. However, if in any unforeseen circumstances wherein the recording and sending of the information in writing to the superior may get postponed after the whole process of entry and search, it may be allowed only based on urgency and expediency of the act.

The Court also observed that under no condition can total non-compliance of the said requirements of subsections (1) and (2) of Section 42 be allowed and in case of delayed compliance, a satisfactory explanation about the delay will be acceptable compliance with Section 42.

The Court also noted that another fact was laid down by the Karnail Singh case according to which if a police officer does not record the information at all and does not inform the official superior at all; in that case, also it will be a clear violation of Section 42 of the Act. From the Jagraj Singh case, the Court observed how the vehicle therein involved was not a public transport vehicle and adopted the same approach for this case.

Court’s Decision

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The Court observed that since the vehicle involved was a private vehicle and explanation to Section 43 of the NDPS act states that a private vehicle would not come under the expression of ‘public place’, therefore, the Court concluded that the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. Quoting the Karnail Singh case, the Court stated that total non-compliance of Section 42 cannot be accepted in any case.

Therefore, the Court concluded that the Court below had fallen in error in rejecting the submissions advanced on behalf of the appellants and Ordered that the appellants be released.

Click here to read the judgment.


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