BOOTA SINGH & OTHERS versus STATE OF HARYANA

[2021] 4 S.C.R.

BOOTA SINGH & OTHERS

STATE OF HARYANA

(Criminal Appeal No. 421 of 2021)

BAPRIL 16, 2021

[UDAY UMESH LALIT AND K. M. JOSEPH, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –ss. 42 & 43 – Governing provisions, if s.42 or s.43 – Non-complianceof s.42 – Secret information received by PW-4 (S.I.) that accused-Cappellants were selling poppy straw in vehicle – Raid conductedby PW-4 along with fellow officials – Accused-appellants foundsitting in Jeep – Notice served u/s.50 – Search led to recovery ofpoppy straw – Trial court convicted appellants u/s.15 rejecting theirplea of acquittal on ground of non-compliance of s.42 – The trialDcourt held that s.42 was inapplicable, and that the case was coveredby s.43 as recovery was effected from the appellants while theywere sitting on road in jeep at public place – Convictionconfirmed by High Court, which affirmed the view of trial court –On appeal, held: Evidence showed that the vehicle was not publicconveyance but was vehicle belonging to one of the accused –ERegistration Certificate of the vehicle also did not indicate it to bea Public Transport Vehicle – Explanation to s.43 showed that aprivate vehicle would not come within the expression “public place”as explained in s.43 – Thus, the instant case would not come u/s.43but would be governed by provisions of s.42 – However, on facts,Fs.42 having not been complied with at all, the appellants wereentitled to acquittal.

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.43– Expression “public place” as explained in s.43 – Ambit of – Held:Explanation to s. 43 shows that private vehicle would not comeGwithin the expression “public place” – Words and Phrases –Expression “public place”.

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.42– Requirements of – Substantial or adequate compliance vis-à-vistotal non-compliance – Held: Total non-compliance of s.42 is

impermissible – The rigor of s.42 may get lessened in situationsdealt with in Karnail Singh case but in no case, total non-complianceof s.42 can be accepted.

Allowing the appeal, the Court

HELD : 1.1. The evidence in the present case clearly showsthat the vehicle was not public conveyance but was vehiclebelonging to one the accused-appellants. The RegistrationCertificate of the vehicle, which has been placed on record alsodoes not indicate it to be Public Transport Vehicle. Theexplanation to Section 43 of the Narcotic Drugs and PsychotropicSubstances Act, 1985 shows that private vehicle would not comewithin the expression “public place” as explained in Section 43.The relevant provision would not be Section 43 but the case wouldcome under Section 42. [Para 12][188-E-G]

1.2. It is an admitted position that there was total non-compliance of the requirement of Section 42. Total non-compliance of Section 42 is impermissible. The rigor of Section42 may get lessened in situations dealt with in the conclusiondrawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted. In the circumstances,the accused-appellants are acquitted of the charge levelled againstthem. [Paras 13, 14 and 15][188-G-H; 189-A-B]

Karnail Singh v. State of Haryana (2009) 8 SCC 539:[2009] 11 SCR 470 – followed.

State of Rajasthan v. Jagraj Singh alias Hansa (2016)11 SCC 687: [2016] 4 SCR 451– relied on.

Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212– referred to.

Case Law Reference

[2009] 11 SCR 470[2016] 4 SCR 451(2013) 2 SCC 212

followedPara 8relied onPara 8referred toPara 8

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 421 of 2021.

From the Judgment and Order dated 03.03.2020 of the High Courtof Punjab and Haryana at Chandigarh in CRA-S-1759-SB-2004.

Praveen Kumar, Rajnish Kumar Jha, Advs. for the Appellants.BRakesh Kumar Mudgal, AAG., Kailash Kumar Mudgal, Dr.Monika Gusain, Advs. for the Respondent.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J.

1. This appeal challenges the judgment and final order datedC03.03.2020 passed by the High Court of Punjab & Haryana at Chandigarhdismissing CR A-S-1759-SB-2004 preferred by the appellants andaffirming their conviction and sentence under Section 15 of the NarcoticDrugs and Psychotropic Substances Act, 1985 (“the NDPS Act” forshort).

D2. The basic facts and the case of prosecution as recorded by theHigh Court in its judgment are as under:

“2. The facts as put forth by the prosecution are to the effect thaton 28.01.2002, S.I. Nand Lal alongwith fellow police officials werepresent at the canal bridge on Surtia-Rori road, where he receivedEa secret information to the effect that the accused are sellingpoppy straw in vehicle bearing registration number GUD-4997on ‘kacha path’ at Rori-Jatana road and they can be apprehendedif raid is conducted. Accordingly, raid was conducted and theaccused were found sitting in the jeep bearing registration numberGUD-4997 at the aforesaid place. Major Singh, co-accused ofFthe appellants, managed to slip away, whereas, the appellants wereapprehend at the spot. They were found sitting upon two bagskept in the said jeep. Notices under Section 50 of the Act wereserved upon them but the appellants reposed faith upon the policeofficials. The search of the bags led to the recovery of poppyGstraw. One bag was containing 39 kg of poppy straw and thesecond bag was containing 36 kg of poppy straw. Two samplesweighing 100 grams each were separated from each bag. Thesample parcels and the bulk parcels were converted into separateparcels and sealed with the seal bearing impression ‘CS’. Thejeep alongwith weighing scale, two weights of 500 grams eachHwere also recovered and taken into possession vide recovery

memos. Ruqa was recorded and dispatched to the police stationon the basis thereof, the FIR was registered. Subsequently, MajorSingh, co-accused, was arrested and on completion of investigation,the challan was presented in the Court.

3. The charge was framed. The contents thereof were read overand explained to the appellants, to which they pleaded not guiltyand claimed trial.

4. In support of its allegations, the prosecution has examined fourwitnesses. Inspector Nand Lal (PW4) has conducted the searchof the accused in the presence of ASI Jaswant Singh (PW3). Thecase property was retained in the malkhana by Kuldeep Singh(PW2) and Constable Gurjit Singh (PW 1) took the sample parcelsto the FSL. The prosecution has also 2 of 10 produced documentaryevidence to substantiate the version as put forth by it.”

3. By order dated 15.03.2002, on an application preferred by him,the vehicle in question was released by the Trial Court in favour ofaccused Gurdeep Singh.

4. During trial, PW4 Inspector Nand Lal, the Investigating Officerdeposed in his examination-in-chief as under:

“On 28.1.2002 I was posted as Sub Inspector/SHO in Police StationRori. On that day, I alongwith ASI Jaswant Singh and other policeofficials were present at the canal bridge on Surtia Rori-road inconnection with patrolling. I received secret information that allthe accused are selling poppy straw in vehicle bearing no.GUD-4997 upon ‘Kacha Rasta at Rori-Jatana road and can beapprehended red handed if raid is conducted. I tried to join twopersons who were going to water the fields in the investigationsbut they refused. Thereafter I organised raiding party andconducted raid. All the accused were found in the jeep bearingno GUD-4997, upon kacha rasta by the side of Rori-JatanaRoad, 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. AccusedBoota Singh, Gurdeep Singh and Gurmahender Singh alias Mittawere 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

Athem as to whether they desired their search before gazettedofficer or Magistrate. Vide replies Exl.PC/1.1, Ex.PDA andEx.PE/I, accused Gurdeep Singh, Boota Singh and GurmahenderSingh alias Mitta declined the offer and reposed faith in the police.

BIn his cross-examination, the witness stated:-

“I did not record the secret information in writing. Wireless in myjeep was out of order at that time. I did not obtain any searchwarrants for conducting the search of the jeep of accused duringnight hours. I did not record any ground for not obtaining therequisite search warrants in my police file. The writing work wasCdone while sitting in the jeep.”

5. After considering the evidence on record, the Trial Court by itsjudgment and order dated 12.08.2004, acquitted accused Major Singhbut convicted accused Boota Singh, Gurdeep Singh and GurmohinderSingh, under Section 15 of the NDPS Act and sentenced them to sufferDrigorous imprisonment for 10 years with imposition of fine in the sum ofRs.1,00,000/-, in default whereof they were directed to undergo further

rigorous imprisonment for period of two years.

On the question of applicability of Section 42 of the NDPS Act,the Trial Court stated:-E“ … Learned counsel sought acquittal of accused due to non-compliance of Section 42 of N.D.P.S. Act. However, above saidargument could help the accused if recovery had been effectedfrom the house, building etc. of the accused. Admittedly, recoveryin question was effected from the accused while they were sittingon road in jeep at public place. Therefore, case of accusedFwould be covered by Section 43 of N.D.P.S. Act and not by Section42 of N.D.P.S. Act. Under these circumstances, argument oflearned counsels for accused is overruled.”

6. The convicted accused, being aggrieved, preferred theaforementioned Criminal Appeal before the High Court, which wasdismissed by the High Court.GOn the question whether the matter came within the scope ofSection 42 of the NDPS Act, the High Court observed:-

14. Furthermore, in the case in hand, the accused were present ina jeep on public path and in such circumstance, the provisions ofSection 43 and not of 42 of the Act come into play. As perHexplanation to Section 43 of the Act, the public place includes

conveyance also. Section 43 of the Act contemplates seizuremade in public place or in transit. As such, Section 42 of the Actis not applicable to the facts of the present case …”

7. In this appeal preferred by Boota Singh, Gurdeep Singh andGurmohinder Singh challenging the correctness of the decisions of thecourts below, we heard Mr. Praveen Kumar, learned counsel for theappellants and Mr. Rakesh Mudgal, learned AAG for the State.

8. Mr. Praveen Kumar submitted inter alia:

a.The vehicle in question was private vehicle belonging toaccused Gurdeep Singh and was not public conveyance,though parked on public road.

b.As accepted by PW4 Inspector Nand Lal, the secretinformation was not recorded in writing nor any groundswere recorded for not obtaining the requisite searchwarrants.

c.The instant case would not be come under Section 43 butwould be governed by the provisions of Section 42 of theNDPS Act.

d.Section 42 having not been complied with at all, theappellants were entitled to acquittal in terms of law laiddown in the Constitution Bench decision of this Court inKarnail Singh v. State of Haryana[1], followed in subsequentdecisions in Sukhdev Singh v. State of Haryana[2], and,State of Rajasthan v. Jagraj Singh alias Hansa[3].

9. Countering the submissions, Mr. Rakesh Mudgal, learned AAGsubmitted that the courts below were right in observing that the instantcase would be governed by the provisions of Section 43 of the NDPSAct. It was however accepted by the learned counsel that there was no material on record to conclude that the vehicle in question was publicconveyance.

10. In Karnail Singh[1], the Constitution Bench of this Courtconcluded:-

“35. In conclusion, what is to be noticed is that AbdulRashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require

1 (2009) 8 SCC 539

2 (2013) 2 SCC 212

3 (2016) 11 SCC 687

literal compliance with the requirements of Sections 42(1) and42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC(Cri) 1217] hold that the requirements of Sections 42(1) and 42(2)need not be fulfilled at all. The effect of the two decisions was asfollows:

(a) The officer on receiving the information [of the naturereferred to in sub-section (1) of Section 42] from any personhad to record it in writing in the register concerned and forthwithsend copy to his immediate official superior, before proceedingto take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer wasnot in the police station, but while he was on the move eitheron patrol duty or otherwise, either by mobile phone, or othermeans, and the information calls for immediate action and anydelay would have resulted in the goods or evidence beingremoved or destroyed, it would not be feasible or practical totake down in writing the information given to him, in such asituation, he could take action as per clauses (a) to (d) of Section42(1) and thereafter, as soon as it is practical, record theinformation in writing and forthwith inform the same to theofficial superior.

(c) In other words, the compliance with the requirements ofSections 42(1) and 42(2) in regard to writing down theinformation received and sending copy thereof to the superiorofficer, should normally precede the entry, search and seizureby the officer. But in special circumstances involving emergentsituations, the recording of the information in writing and sendinga copy thereof to the official superior may get postponed by areasonable period, that is, after the search, entry and seizure.The question is one of urgency and expediency.(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayedcompliance with satisfactory explanation about the delay willbe acceptable compliance with Section 42. To illustrate, if anydelay may result in the accused escaping or the goods orevidence being destroyed or removed, not recording in writingthe information received, before initiating action, or non-sending

BOOTA SINGH & OTHERS V. STATE OF HARYANA[UDAY UMESH LALIT, J.]

of copy of such information to the official superior forthwith,may not be treated as violation of Section 42. But if theinformation was received when the police officer was in thepolice station with sufficient time to take action, and if thepolice officer fails to record in writing the information received,or fails to send copy thereof, to the official superior, then itwill be suspicious circumstance being clear violation ofSection 42 of the Act. Similarly, where the police officer doesnot record the information at all, and does not inform the officialsuperior at all, then also it will be clear violation of Section 42of the Act.Whether there is adequate or substantial compliancewith Section 42 or not is question of fact to be decided ineach case. The above position got strengthened with theamendment to Section 42 by Act 9 of 2001.”

(Emphasis added)

11. In Jagraj Singh alias Hansa[3], the facts were more or lessidentical. In that case, the vehicle (as observed in para 5.3 of the decision)was not public transport vehicle. After considering the relevantprovisions and some of the decisions of this Court including the decisionin Karnail Singh[1], it was observed:-

“14. What Section 42(2) requires is that where an officer takesdown an information in writing under sub-section (1) he shall senda copy thereof to his immediate officer senior. The communicationExt. P-15 which was sent to the Circle Officer, Nohar was not asper the information recorded in Ext. P-14 and Ext. P-21. Thus, noerror was committed by the High Court in coming to the conclusionthat there was breach of Section 42(2).

. . . . . . . . . . . . . . .

16. In this context, it is relevant to note that before the SpecialJudge also the breach of Sections 42(1) and 42(2) was contendedon behalf of the defence. In para 12 of the judgment the SpecialJudge noted the above arguments of defence. However, thearguments based on non-compliance with Section 42(2) werebrushed aside by observing that discrepancy in Ext. P-14 andExt. P-15 is totally due to clerical mistake and there wascompliance with Section 42(2). The Special Judge coming tocompliance with the proviso to Section 42(1) held that the vehicle

Asearched was being used to transport passengers as has beenclearly stated by its owner Vira Ram, hence, as per theExplanation to Section 43 of the Act, the vehicle was publictransport vehicle and there was no need of any warrant orauthority to search such vehicle. The High Court has reversedthe above findings of the Special Judge. We thus, proceed toBexamine as to whether Section 43 was attracted in the presentcase which obviated the requirement of Section 42(1) proviso.

. . . . . . . . . . . . . . .

29. After referring to the earlier judgments, the ConstitutionBench came to the conclusion that non-compliance withCrequirement of Sections 42 and 50 is impermissible whereas delayedcompliance with satisfactory explanation will be acceptablecompliance with Section 42. The Constitution Bench noted theeffect of the aforesaid two decisions in para 5. The present is nota case where insofar as compliance with Section 42(1) provisoeven an argument based on substantial compliance is raised thereDis total non-compliance with Section 42(1) proviso. As observedabove, Section 43 being not attracted, search was to be conductedafter complying with the provisions of Section 42.We thus, concludethat the High Court has rightly held that non-compliance withSection 42(1) and Section 42(2) were proved on the record andEthe High Court has not committed any error in setting aside theconviction order.”

(Emphasis added)

12. The evidence in the present case clearly shows that the vehiclewas not public conveyance but was vehicle belonging to accusedGurdeep Singh. The Registration Certificate of the vehicle, which hasFbeen placed on record also does not indicate it to be Public TransportVehicle. The explanation to Section 43 shows that private vehiclewould not come within the expression “public place” as explained inSection 43 of the NDPS Act. On the strength of the decision of thisCourt in Jagraj Singh alias Hansa[3], the relevant provision would notbe Section 43 of the NDPS Act but the case would come under SectionG42 of the NDPS Act.13. It is an admitted position that there was total non-complianceof the requirements of Section 42 of the NDPS Act.

14. The decision of this Court in Karnail Singh[1]as followed inJagraj Singh alias Hansa[3], is absolutely clear. Total non-complianceH

of Section 42 is impermissible. The rigor of Section 42 may get lessenedin situations dealt with in the conclusion drawn by this Court in KarnailSingh[1] but in no case, total non-compliance of Section 42 can beaccepted.

15. In the circumstances, the courts below fell in error in rejectingthe submissions advanced on behalf of the appellants. We, therefore,allow this appeal, set-aside the view taken by the High Court and acquitthe appellants of the charge levelled against them. The appellants bereleased forthwith unless their custody is required in connection withany other offence.

Bibhuti Bhushan Bose

Appeal allowed.