Section 43 of the NDPS Act contemplates a seizure made in a public place or in transit. This provision also includes conveyance but its applicability is restricted to vehicles which are public transport vehicle since the explanation of Section 43 clearly shows that a private vehicle would not come within the expression ‘public place’. Only for public transport vehicles, there is no need for any warrant or authority for search and seizure. This remarkable judgment was recently passed by Supreme Court in the matter of BOOTA SINGH & OTHERS V STATE OF HARYANA [CRIMINAL APPEAL NO.421 OF 2021] by Honourable Justice K.M. Joseph and Honourable Justice Uday Umesh Lalit.
Through this appeal, the judgment and final order passed by the High Court of Punjab & Haryana is challenged. In this impugned judgment the application of the applicant was dismissed and the HC affirmed the conviction and sentence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The basic facts of the case are S.I. Nand Lal, when raided a vehicle on basis of a tip, found and apprehended the accused whereas the co-accused slipped away however later he was caught. The search of the vehicle led to the recovery of poppy straw- one bag containing 39 kg of poppy straw and the second bag was containing 36 kg of poppy straw, on the basis of which an FIR was registered. The charge was framed. The contents thereof were read over and explained to the appellants, to which they pleaded not guilty and claimed trial.
Later, during the trial, it was agreed by the concerned Police officer that he did not record the tip in writing nor did he obtain any search warrants for conducting the search of the jeep of the accused during night hours. Also, he did not record any valid grounds for not obtaining the requisite search warrants in his police file.
The Trial Court convicted the accused under Section 15 of the NDPS Act. On the question of applicability of Section 42 of the NDPS Act, the Trial Court stated, “Acquittal due to non-compliance of Section 42 of N.D.P.S. The act would help only if recovery had been effected from the house, building, etc. If the recovery in question was effected while they are on road in a jeep at a public place then such case would be covered by Section 43 of N.D.P.S. Act and not by Section 42 of N.D.P.S. Act.” The HC also rejected the criminal appeal and confirmed the judgment of the lower court by stating that “Section 43 of the Act, the public place includes a conveyance also.”
The Supreme Court observed, “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 in Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act.”
Thence, the Apex Court stated, “There was total non-compliance of the requirements of Section 42 of the NDPS Act which is impermissible. The rigor of Section 42 may get lessened in situations dealt with but in no case, total non-compliance of Section 42 can be accepted.”
Thus, the judgment of HC was set aside and the appellant was acquitted since courts below fell in error in rejecting the submissions advanced on behalf of the appellants.
