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CASE NO.: Appeal (crl.)  918 of 1998

PETITIONER: State of Haryana                                                 

RESPONDENT: Jarnail Singh and others                                 

DATE OF JUDGMENT: 29/04/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT: J U D G M E N T  

B.P. SINGH, J.

       The State of Haryana has preferred this appeal by  special leave against the judgment and order of the High  Court of Punjab and Haryana at Chandigarh dated August  29, 1997 in Criminal Appeal No.146-SB/96 whereby the  High Court acquitted the respondents of the charge under  Section 15 of the Narcotic Drugs and Psychotropic  Substances Act, 1985 (hereinafter referred to as ’the NDPS  Act’) for non compliance with the requirements of Sections  42 and 50 thereof.   Earlier, the respondents were tried by  the Additional District Judge, Ambala who found them  guilty of the offence under Section 15 of the NDPS Act and  sentenced them to rigorous imprisonment for 10 years each  and to pay a fine of Rs. 1 lakh each and in default of  payment of fine to undergo further rigorous imprisonment  for two years.

       The facts of the case are not in dispute.  The case of  the prosecution is that on February 20, 1992 Sub-Inspector  Mehar Singh, SHO Police Station Mullana alongwith Head  Constable Om Prakash and other members of the police  force, was on patrolling duty and was moving about in a  government jeep.  On the way they met Mahinder Singh  Ahlawat, Superintendent of Police, whereafter alongwith  him they started checking vehicles moving on the highway  at about 8.00 p.m.  For this they held a naka bandi on the  turning of village Dhanora.  At about that time a tanker  bearing No.URM-2092 came from the side of Sadhora.  It  was signalled to stop, but rather than stopping, the tanker  sped away.  This gave rise to suspicion and therefore the  tanker was chased and compelled to stop.  It was found that  there were three persons sitting in the cabin of the tanker  and it was being driven by respondent Mohan Krishan.   The others two, namely Jarnail Singh and Prithvi Raj were  sitting with him.  They were interrogated and thereafter the  tanker was searched in the presence of the witnesses and the  Superintendent of Police.  On the opening of the lid of the  middle chamber of the tanker a lot of gunny bags were  found lying there.  One of the gunny bags was taken out and  on being checked it was found to contain poppy husk.   Thereafter all the bags were taken out numbering 73 and on  checking, it was found that they also were filled with poppy  husk.  Weighing scales were brought and the bags were  weighed separately.  It was found that each bag contained  18 kgs. of poppy husk.   Thereafter the samples were sealed

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as required by law and thereafter all necessary steps were  taken under the NDPS Act and the Rules.  The respondents  were put up for trial and were convicted by the trial court  as noticed earlier.  On appeal by the respondents the High  Court held that they were entitled to acquittal in view of the  fact that the mandatory requirements of Section 50 and  Section 42 of the NDPS Act were not complied with.  The  High Court held that the provisions of Section 50 of the  NDPS Act applied and before searching the vehicle the  accused had to be informed of his right to be searched in the  presence of a Magistrate or a gazetted officer.  It made no  difference that a Superintendent of Police, who was a  gazetted officer, was a member of the searching party who  searched the vehicle.  It further held that Section 42 of the  Act had not been complied with inasmuch as the SHO  Mehar Singh did not record the grounds for his belief  before entering upon the search that he had reasons to  believe that some contraband offending the NDPS Act was  being carried in the vehicle and that an attempt to get a  search warrant from a competent Magistrate would  frustrate the object or facilitate escape of the offender.   Consequently the trial was vitiated also for non-compliance  of the provisions of the proviso to Section 42(1) of the NDPS  Act.                                   In the appeal before us counsel for the State of  Haryana contended that the High Court was entirely wrong  in holding that the provisions of Sections 42 and 50 of the  NDPS Act applied to the facts and circumstances of this  case.  He argued that the search was not made in a private  enclosed place but was made in a public place, namely the  highway.  Thus Section 43 of the NDPS Act was applicable  and not Section 42.  There was, therefore, no obligation to  comply with the requirements of Section 42.  Secondly,  Section 50 of the NDPS Act did not apply to the facts of the  case because the contraband article was not recovered on  personal search of the accused, but on search of the vehicle.   Section 50 is limited in its application to personal search.

       Learned counsel for the respondents, however, sought  to support the findings of the High Court.

       Having heard learned counsel for the parties we are  of the view that the judgment and order of the High Court  is clearly erroneous and must be set aside.  A Constitution  Bench of this Court in  State of Punjab  vs.  Baldev Singh :  (1999) 6 SCC 172 exhaustively considered the various  provisions of the NDPS Act.  As regards application of  Section 50 of the NDPS Act, the Court came to the following  conclusion :-

"On its plain reading, Section 50 would come  into play only in the case of a search of a person  as distinguished from search of any premises  etc.  However, if the empowered officer, without  any prior information as contemplated by  Section 42 of the Act makes a search or causes  arrest of a person during the normal course of  investigation into an offence or suspected  offence and on completion of that search, a  contraband under the NDPS Act is also  recovered, the requirements of Section 50 of the  Act are not attracted."

                The same view has been reiterated in several decisions

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of this Court including Kalema Tumba  vs.  State of  Maharashtra and another : (1999) 8 SCC 257 ; Gurbax Singh   vs. State of Haryana : (2001) 3 SCC 28 ; Madan Lal  vs.  State  of H.P. : (2003) 7 SCC 465 ; Birakishore Kar  vs.  State of  Orissa  : (2000) 9 SCC 541 and Saikou Jabbi  vs.  State of  Maharashtra : (2004) 2 SCC 186.  The language of Section  50 is clear and unambiguous and the law so well settled that  it is not possible to take a different view.  We must,  therefore, hold that Section 50 of the NDPS Act did not  apply to the facts of this case, where on search of a tanker, a  vehicle, poppy husk was recovered.  This not being a case of  personal search, Section 50 was not applicable.  Moreover  there was no prior information regarding the contraband  being carried in a vehicle, and the recovery was the result of  checking of the vehicle in normal course.

       The next question is whether Section 42 of the NDPS  Act applies to the facts of this case.  In our view Section 42  of the NDPS Act has no application to the facts of this case.   Section 42 authorises an officer of the departments  enumerated therein, who are duly empowered in this  behalf, to enter into and search any such building,  conveyance or place, if he has reason to believe from  personal knowledge or information given by any person and  taken down in writing that any narcotic drug or  psychotropic substance etc. is kept or concealed in any  building, conveyance or enclosed place.  This power can be  exercised freely between sunrise and sunset but between  sunset and sunrise if such an officer proposes to enter and  search such building, conveyance or enclosed place, he must  record the grounds for his belief that a search warrant or  authorization cannot be obtained without affording  opportunity for the concealment of evidence or facility for  the escape of an offender.  

       Section 43 of the NDPS Act provides that any officer  of any of the departments mentioned in Section 42 may  seize in any public place or in transit any narcotic drug or  psychotropic substance etc. in respect of which he has  reason to believe that an offence punishable under the Act  has been committed.  He is also authorized to detain and  search any person whom he has reason to believe to have  committed an offence punishable under the Act.   Explanation to Section 43 lays down that for the purposes of  this section, the expression "public place" includes any  public conveyance, hotel, shop, or other place intended for  use by, or accessible to, the public.   

       Sections 42 and 43, therefore, contemplate two  different situations.  Section 42 contemplates entry into and  search of any building, conveyance or enclosed place, while  Section 43 contemplates a seizure made in any public place  or in transit.  If seizure is made under Section 42 between  sunset and sunrise, the requirement of the proviso thereto  has to be complied with.  There is no such proviso in Section  43 of the Act and, therefore, it is obvious that if a public  conveyance is searched in a public place, the officer making  the search is not required to record his satisfaction as  contemplated by the proviso to Section 42 of the NDPS Act  for searching the vehicle between sunset and the sunrise.   

       In the instant case there is no dispute that the tanker  was moving on the public highway when it was stopped and  searched.  Section 43 therefore clearly applied to the facts of  this case.  Such being the factual position there was no

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requirement of the officer conducting the search to record  the grounds of his belief as contemplated by the proviso to  Section 42.  Moreover it cannot be lost sight of that the  Superintendent of Police was also a member of the  searching party.  It has been held by this Court in M.  Prabhulal  vs.  Assistant Director, Directorate of Revenue  Intelligence : (2003) 8 SCC 449 that where a search is  conducted by a gazetted officer himself acting under Section  41 of the NDPS Act, it was not necessary to comply with the  requirement of Section 42.  For this reason also, in the facts  of this case, it was not necessary to comply with the  requirement of the proviso to Section 42 of the NDPS Act.   

       We, therefore, hold that in the facts of this case  Section 50 of the NDPS Act was not applicable since the  contraband was recovered on search of a vehicle and there  was no personal search involved.  The requirement of the  proviso to Section 42 was also not required to be complied  with since the recovery was made at a public place and was,  therefore, governed by Section 43 of the Act which did not  lay down any such requirement.  Additionally, since the  Superintendent of Police was a member of the search party  and was exercising his authority under Section 41 of the  NDPS Act, the proviso to Section 42 were not attracted.   

In the result this appeal is allowed, the judgment and  order of the High Court is set aside and the respondents are  sentenced to undergo rigorous imprisonment for ten years  each under Section 15 of the NDPS Act and to pay a fine of  Rs.1,00,000/-, in default to suffer further rigorous  imprisonment for a period of two years.  The respondents  shall be taken into custody to serve out the sentence subject  to the provisions of Section 428 of the Criminal Procedure  Code.