NDPS Act | Search Of Private Vehicle Even In Public Places Requires Secret Information To Be Written Down Within 72 Hrs: P&H High Court

The Punjab & Haryana High Court has upheld the acquittal in a drugs case, observing that the secret information received by the police officials was admittedly not reduced into writing, which is a requirement of Section 41(2) of the NDPS Act as well as Section 42 of the NDPS Act.Justice Gurvinder Singh Gill and Justice Jasjit Singh Bedi said, "where secret information is received in terms of Section 42 of the NDPS Act, then the search of a private conveyance even in a public place/transit would require compliance of Sections 41(1) and 42(2) of the NDPS Act i.e. the information so received must be taken down in writing and conveyed to the immediate superior officer within 72 hours."Speaking for the bench, Justice Bedi said, "However, where the search of a public conveyance is to be conducted in a public place/transit, no such compliance is required. Whether a vehicle is a private conveyance or a public conveyance would be a question of fact in each case." The Court was hearing an appeal filed by the Punjab Government challenging the acquittal. According to an FIR, a truck carrying 30 bags of poppy husk was found. Sample weighing 250 grams from each of the said 30 bags was separated and the 30 bags with their contents after having taken samples were found to be 34 Kgs. 750 grams each.Three accused were acquitted by the Special Court in 2003 primarily on the grounds that the secret information received was neither reduced into writing and nor sent to a superior officer as envisaged under Section 42 of the NDPS Act.State contended that the Trial Court has not considered Sections 41 & 42 of the NDPS Act in its proper perspective. As DSP Balbir Singh, a Gazetted Officer, was present at the spot where the Naka had been set up and the secret information had been received by him, there was no requirement of the compliance of Section 42(2) of the NDPS Act inasmuch as the secret information received and reduced into writing was not required to be sent to senior officers keeping in view Section 41(2) of the NDPS Act. After hearing the submissions, the Court referred to catena of judgements of Supreme Court ands High Courts on interpretation of Sections 41, 42 and 43 of the NDPS Act.The bench noted as regards Section 42 of the NDPS Act, where an information is received by an officer who is not a gazetted officer but an empowered one and neither is he a peon, sepoy or constable, he is bound to record the said information in writing and proceed to search any building, conveyance or place. "The information received and reduced into writing shall be communicated to his immediate official superior within 72 hours.""However, under Section 43 of the NDPS Act, where the search and seizure is in a public place or in transit, compliance of Section 42 of the NDPS Act of recording of the secret information and sending it to a superior officer is not required. Public place is defined and includes a public conveyance. Thus, Sections 42 and 43 of the NDPS Act operate in different spheres," it added.The Court considered the question "whether Section 42 of the NDPS Act or Section 43 of the NDPS Act would apply to a private vehicle sought to be searched and seized in a public place/transit."Perusing Section 42 of the Act, the Court said, "in cases where the access to the public is prohibited Section 42 of the NDPS Act comes into play. If a private conveyance is parked inside a private premises the protection of Section 42 of the NDPS Act is available and therefore, there was no need for the legislature to separately add the words 'conveyance'."The Court highlighted that the position is further clarified from Section 43 of the NDPS Act, which refers to the seizure and arrest in a public place or in transit. The explanation of 'public place' includes 'public conveyance'."If Section 43 of the NDPS Act was to apply to both private and public conveyances inasmuch as the safeguards of Section 42 of the NDPS Act were not required to be followed, then the legislature would have used the words 'conveyance' in the explanation to Section 43 of the NDPS Act as against 'public conveyance'," it opined.The Court concluded that, "the position which thus emerges is that where secret information is received in terms of Section 42 of the NDPS Act, then the search of a private conveyance even in a public place/transit would require compliance of Sections 41(1) and 42(2) of the NDPS Act i.e. the information so received must be taken down in writing and conveyed to the immediate superior officer within 72 hours."While noting that in the present case, the secret information on the basis of which FIR was lodged, admittedly was not reduced into writing, which was a requirement of Section 41(2) of the NDPS Act as well as Section 42 of the NDPS Act, the Court dismissed the State's plea.Mr. Siddharth Attri, AAG, Punjab for the appellant.Mr. Harsh Kinra, Advocate with Ms. Apoorva Kinra, Advocate for respondent Nos.1 and 2.Mr. Keshav Pratap Singh, Advocate for...

NDPS Act | Search Of Private Vehicle Even In Public Places Requires Secret Information To Be Written Down Within 72 Hrs: P&H High Court

Aiman J. Chishti

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