Conditions U/S 42 NDPS Act Don't Apply To Search Of Private Vehicle 'In Transit': Gauhati High Court Denies Bail

The Gauhati High Court recently said conditions under Section 42 [Power of entry, search, seizure and arrest without warrant] NDPS Act of 'recording reasons for belief' and 'taking down of information received in writing' do not apply to search of a private vehicle 'in transit'.

While denying bail to an accused intercepted driving a truck from which contraband in commercial quantity was recovered, Court said such a case may fall under Section 43 of the Act which stipulates procedure for seizure and arrest in 'public place'.

Justice Robin Phukan clarified that though a private vehicle cannot be considered a 'public place', Section 43 does apply to vehicles in transit. It observed,

"In this case, the Truck, where the contrabands substances were recovered and seized is not a public conveyance. But, the fact remains that the contrabands were recovered and seized while in transit and as revealed from the FIR the informant was authorized by the Government of Assam vide Notification No. EX.145/85/301 dated 15.05.1995 under the provision of section 42(1) NDPS Act to enter, search and seizure. As the contraband substances were recovered and seized during transit in the Truck, as contemplated in section 43 (a) i.e. “seize in any public place or in transit,” this court is of the considered opinion that herein this case instead of section 42 of NDPS Act, section 43 of the said Act is attracted."

As such, the Court added, recording of reasons for belief and for taking down of information received in writing with regards to the commission of an offence before conducting search and seizure, is not required to be complied with under section 43 of NDPS Act. However, it further said, the trial court will not be influenced by the observations made by it.

The Counsel appearing for the accused contended that the search and seizure was made in contravention of provision of Section 42 and 50 of NDPS Act and the accused is entitled to benefit of the same even at the stage of bail.

The accused's Counsel placed reliance on Boota Singh & Ors. v. State of Haryana (2021) where the Supreme Court held a private vehicle would not come within the expression "public place" as explained in Section 43 of NDPS Act. It was argued that there was total non-compliance of section 42 NDPS Act and though at the time of intercepting the vehicle the informant could not comply with the section 42 of the Act yet thereafter, he could have complied the same but nothing has been done by him.

On the other hand, the Additional Public Prosecutor (APP) submitted that the vehicle in question was intercepted during Naka Checking and there was no prior information and as such non-compliance of Section 42 was not fatal as the informant has given sufficient reason for such non-compliance. It was further submitted that the quantities of the contraband substances, so recovered from the possession of the accused persons are of commercial quantity, and as such the accused has to satisfy the twin conditions of Section 37 of the Act and that the accused has failed to satisfy the same.

Court said it is unable to derive its satisfaction that there exists any reasonable ground for believing that the accused is not guilty of the offence and that he is not likely to commit any offence, while on bail. Accordingly, the bail plea was dismissed.

Case Title: Mayank Sharma v. The State of Assam

Case No.: Bail Appln./269/2024

Click Here To Read/Download Order