Person Holding Temporary Charge As SHO Is Competent To Carry Out Search U/s. 42 Of NDPS Act: Supreme Court Reiterates

A Bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti observed, “In the case at hand, the SHO ‘Veera Ram Choudhary’, was absent on the relevant date and therefore, on 09.09.2011, he has handed over the charge of the SHO to the Circle Inspector (Sub-Inspector, ‘Shri Kamal Chand’) who has carried out the search.”

The Court added, “We are of the opinion that the High Court manifestly erred in interpreting Section 42 of the Act and in holding that the In-Charge SHO was not competent to conduct the search.”

Additional Advocate General Shiv Mangal Sharma represented the Petitioner, while Advocate on Record Surya Kant appeared for the Respondents.

Brief Facts

A police team led by a Sub-Inspector conducted a blockade during which a vehicle was stopped. Upon search conducted in the presence of independent witnesses, contraband material weighing 14 kilograms was found in three bags inside a plastic bag. Two samples of 30 grams each were taken separately and sealed along with the remaining contraband. The accused persons, Respondents herein, were arrested and issued notices under the NDPS Act. A criminal case was registered and a charge sheet was filed.

The Respondents had sought quashing of the proceedings on the ground that the search and seizure were conducted by a Sub-Inspector who was only holding the charge of SHO at the relevant time and was not posted as such. It was argued that this violated Section 42 of the NDPS Act and the applicable notification, which empowers only those Sub-Inspectors who are posted as SHO. The Rajasthan High Court allowed the petition under Section 482 CrPC and quashed the proceedings on the ground that the search was carried out by a Sub-Inspector who was not posted as SHO, and therefore not empowered under the NDPS Act as per the applicable Government notification.

The High Court held, “The powers as enumerated under the NDPS Act empowered the officers of the State Government and Central Government are specific and ought to be strictly construed. This Court has seen the precedent law in various judgments, whereby it has been held that such powers ought to be exercised in a strict sense. Even if the proceedings are completed by the learned court below then also the same shall be vitiated on account of not following the provision of Section 42 of NDPS Act.”

Reasoning of the Court

The Court noted that the SHO was absent on the relevant date and therefore, and handed over the charge of the SHO to the Circle Inspector (Sub-Inspector) who had carried out the search.

The Court held that such an officer holding charge was competent under Section 42 of the NDPS Act. “We are of the opinion that the High Court manifestly erred in interpreting Section 42 of the Act and in holding that the In-Charge SHO was not competent to conduct the search”, it added.

The Bench also referred to its earlier decision in State of Rajasthan v. Bheru Lal (2013) and reiterated, “The person holding temporary charge as Station House Officer at the relevant time is competent to carry out the search.”

The Court held, We are of the opinion that the High Court manifestly erred in interpreting Section 42 of the Act and in holding that the In-Charge SHO was not competent to conduct the search.”

Accordingly, the Court set aside the order of the Rajasthan High Court and directed that the trial would continue in accordance with law and be concluded expeditiously.

Cause Title: State of Rajasthan v. Gopal & Ors. (Diary No. 28242/2019)

Appearance:

Petitioner: AAG Shiv Mangal Sharma; AOR Nidhi Jaiswal; Advocate Shalini Singh

Respondents: AOR Surya Kant; Advocate Priyanka Tyagi

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