Punjab & Haryana High Court: Where Secret Information Received, Search Of Private Conveyance Even In Public Place Requires Compliance Of Sections 41(1) & 42(2) NDPS Act
The Punjab and Haryana High Court dismissed an Appeal of the Punjab State against the Judgment of acquittal passed by the Special Court.
The Punjab and Haryana High Court held that where a secret information is received, the search of a private conveyance even in a public place would require compliance of Sections 41(1) and 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court held thus in an Appeal preferred by the Punjab State against the Judgment of acquittal passed by the Special Court.
A Division Bench of Justice Gurvinder Singh Gill and Justice Jasjit Singh Bedi observed, “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’. 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.”
The Bench, however, clarified that where the search of a public conveyance is to be conducted in a public place/transit, no such compliance is required and whether a vehicle is a private conveyance or a public conveyance would be a question of fact in each case.
AAG Siddharth Attri represented the Appellant while Advocate Harsh Kinra represented the Respondents.
Facts of the Case
An FIR was registered in 2000 and as per the prosecution story, the police officers were holding a Naka for special checking at a bus stop. A secret information was received that a man (Respondent) along with others, was dealing in the sale of a large quantity of smack and poppy husk and that they would be coming on a truck. In the said truck, underneath the bags of groundnuts, were bags of poppy husk and if the said truck was checked, heavy quantity of poppy husk could be recovered. Resultantly, a truck came which was signalled to stop in the light of torch and the driver along with the person sitting by his side were apprehended.
The driver was the Respondent and the DSP disclosed his identity and told that there was a suspicion of them carrying bags of poppy husk in the truck. Both the accused stated that DSP could conduct the search and their consent memos were recorded. On search, 30 bags of poppy husk hidden behind the bags of groundnuts were recovered. After following the procedure under the NDPS Act, the truck and the other articles were taken into possession. Based on the evidence led, the accused persons were acquitted by the Special Court primarily on the grounds that the secret information received was neither reduced into writing nor sent to a superior officer as envisaged under Section 42 of NDPS Act. Hence, the State was before the High Court.
Issue for Consideration
The question which arose before the Court for consideration was 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.
Reasoning
The High Court in view of the facts and circumstances, noted, “… quite apparently with respect to Sections 41 & 42 of the NDPS Act, the law is well settled by the Hon’ble Supreme Court in M. Prabhulal (supra) to the effect that where secret information has been received by the Gazetted Officer, he is bound to reduce the same into writing and conduct the search himself or authorise a subordinate to do so. However, he is not required to send the information so received and reduced into writing to a superior officer as envisaged under Section 42(2) NDPS Act.”
The Court further noted that 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 and that 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 was of the view that in cases where the access to the public is prohibited, Section 42 of the NDPS Act comes into play and 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’.
“Though there is some discrepancy regarding as to which officer present at the naka received the secret information, the said fact would have little relevance because it is the case of the prosecution that the DSP was himself present there. In this situation, though he was bound to record the said secret information into writing, he was not required to send the same to a superior officer inasmuch as Section 41(2) of the NDPS Act would come into play as held in M. Prabhulal (supra)”, it also enunciated.
Accordingly, the High Court dismissed the Appeal.
Cause Title- State of Punjab v. Dharminder Singh Etc. (Neutral Citation: 2025:PHHC:039392-DB)
Appearance:
Appellant: AAG Siddharth Attri
Respondents: Advocates Harsh Kinra, Apoorva Kinra, and Keshav Pratap Singh.
