Supreme Court of India
STATE OF RAJASTHANversusJAG RAJ SINGH @ HANSA
- Citation
- 2016 INSC 444
- Decided
- 29 June 2016
- Disposal
- Dismissed
- Bench
- ABHAY MANOHAR SAPRE
Holding
The Supreme Court held that the search violated mandatory provisions of Sections 42(1) and 42(2) of the NDPS Act and, since Section 43 was not attracted, the conviction could not stand.
Summary
The State of Rajasthan appealed the acquittal of Jag Raj Singh (alias Hansa) for possession of opium recovered from a jeep. The Supreme Court examined whether the police complied with the mandatory provisions of Sections 42(1) and 42(2) of the NDPS Act when they acted on secret information and conducted the search. It held that the information recorded was not correctly communicated to the senior officer, violating Section 42(2), and that no grounds of belief were recorded as required by the proviso to Section 42(1). The Court also found that the jeep was a private vehicle, not a public conveyance, so Section 43 did not apply and the mandatory safeguards of Section 42 could not be bypassed. Consequently, the conviction was rightly set aside and the appeal dismissed.
Issues considered
- Whether the police complied with the mandatory requirements of Section 42(1) and Section 42(2) of the NDPS Act in the search and seizure.
- Whether the jeep constituted a 'public conveyance' within the meaning of the explanation to Section 43, thereby exempting the search from Section 42 requirements.
- Whether non‑compliance of Sections 42(1) and 42(2) vitiates the conviction under the NDPS Act.
- Whether the seizure, sealing and handling of the opium samples complied with procedural safeguards.
- Whether the High Court erred in setting aside the conviction.
Legislation cited
- Code of Criminal Procedure, 1973s. 100, s. 165
- Motor Vehicles Act, 1939
- Motor Vehicles Act, 1988
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 41, s. 42(1), s. 42(1) proviso, s. 42(2), s. 43, s. 50, s. 52, s. 57
Subjects
NDPS ActSection 42Section 43search and seizuremandatory compliancepublic conveyanceopiumconviction set asideprocedural safeguards
Judgment
[2016) 4 S.C.R. 451
STATE OF RAJASTHAN A
v.
JAG RAJ SINGH @ HANSA
(Criminal Appeal No. 1233 of2006)
JUNE29,2016 B
[ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 - ss.
42(1), 42(2), 42(1) proviso and s.43 - Accused held on the basis of
a secret information - Search and seizure - Recovery of bags
containing opium powder fimn the jeep in which accused travelling
c
- Conviction and sentence of accused under the provisions of the
1985 Act - However, acquittal of accused by the High Court on the
ground of non-compliance with the mandatory provisions of NDPS
Act - On appeal held: Section 42(2) requires that where an officer
takes down an information in writing under sub-Section (1) he shall D
send a copy thereof to his immediate officer senior - However,
communication sent to Circle Officer was not as per the secret
information recorded, thus, there was breach of s. 42(2) - s. 42(1)
proviso provides that (f such officer has reason to believe, he may
carry the search after recording the grounds of belief, whereas no
E
ground for belief as contemplated by proviso was ever recorded by
Station House Officer who proceeded to carry on search, thus,
violates the provisions of s. 42(2) proviso - Furthe1; there was no
permit for running the jeep as pziblic tra11sport vehicle - Jeep
cannot be said to be a public co11veya11ce within the meaning of
Explanation to s. 43, thus, s. 43 clearly not attracted and provisions F
of s. 42(1) pro·.>iso were to be complied with - Station House Officer
did not ;uddenly carry out search at a public place - When search
is conducted afier recording information uls. 42(1), provisions of s.
42 was to be complied with - Thus, non-compliance of s. 42(1)
proviso ands. 42(2) seriously prejudiced the accused - High Court
G
rightly held that non-compliance of s.42(1) and s.42(2) were proved
on the record and was justified in setting aside the conviction order.
Dismissing the appeal, the Court
HELD: 1.1 The breach of Section 42 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 has been found in two H
451
452 SUPREME COURT REPORTS [2016] 4 S.C.R.
A parts. The first part is that there is difference between the secret
information recorded in Exh. P-14 and Exh. P-21 and the
information sent to Circle Officer, by Exh. P-15. What Section
42(2) requires is that where an officer takes down an information
in writing under sub-Section (1) he shall sent a copy thereof to
his immediate officer senior. The communication Exh. P-15 which
B
was sent to Circle Officer was not as per the information recorded
in Exh. P 14 and Exh. P 24. Thus, no error was committed by the
High Court in coming to the conclusion that there was breach of
Section 42(2). [Paras 12, 13] (461-E, H; 462-A-B]
1.2 Section 42 (1) indicates that any authorised officer can
c carry out search between sun rise and sun set without warrant or
authorisation. The scheme indicates that in event the search has
to be made between sun set and sun rise, the warrant would be
necessary unless officer has reasons to believe that a search
warrant or authorisatio1I cannot be obtained without affording the
D opportunity for escape of offender which grounds of his belief
has to be recorded. In the instant case, there is no case that any
ground for belief as contemplated by proviso to sub-section (1)
of Section 42 or Sub-section (2) of Section 42 was ever recorded
by Station House Officer who proceeded to carry on search. Station
House Officer has appeared as PD-11 and in his statement also
E
he has not come with any case that as required by the proviso to
Sub-section (1), he recorded his grounds of belief anywhere. [Para
14] (462-C-D]
1.3 Explanation to Section 43 defines expression "public
place" which includes any public conveyance. The word "public
F conveyance;' as used in the Act has to be understood as a
conveyance which can be used by public in general. The Motor
Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988
were enacted to regulate the law relating to motor vehicles. The
vehicles which can be used for public are public Motor Vehicles
G for which necessary permits have to be obtained. Without
obtaining a permit in accordance with the Motor Vehicles Act,
1988, no vehicle can be used for transporting passengers. In the
instant case, it is not the case of the prosecution that the jeep
had any permit for transporting the passengers. The High Court
looked into the evidence and came to the conclusion that there
H
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 453
was no material to indicate that there was any permit for running A
the jeep as public transport vehicle. The High Court further held
that even as per owner of the vehicle VR was using the vehicle,
does not support that the jeep was used as public transport
vehicle. There is nothing to impeach the said findings. In view
thereof, the jeep cannot be said to be a public conveyance within
B
the meaning of Explanation to Section 43. Hence, Section 43 was
clearly not attracted and provisions of Section 42(1) proviso were
required to be complied with and the said statutory mandatory
provisions having not been complied with, the High Court did
not commit any error in setting aside the conviction. [Paras 16,
171 [464-A-C; 465-B-DJ c ,•
1.4 The instant case is where prosecution himself came
with case that secret information was received from informer
which information was recorded in Exh. P-14 and Exh. P-21
Roznamacha and. thereafter the Station House Officer with police
party proceeded towards the scene. The present is not a case D
where the Station House Officer suddenly carried out search at a
public place. The Station House Officer in his statement has also
come up with the facts and case to prove compliance of Section
42. When search is conducted after recording information under
Section 42(1), the provisions of Section 42 has to be complied
with. Thus, the instant is not a case where Section 43 can be said E
to have been attracted, hence, non-compliance of Section 42(1)
"proviso and Section 42(2) had seriously prejudiced the accused.
[Paras 18, 19) (465-D-F; 466-C]
1.5 The instant is not a case where insofar as compliance
of Section 42(1) proviso even an arguments based on substantial F
compliance was raised there is total non-compliance of Section
42(1) proviso. Section 43 being not attracted search was to be
conducted after complying the provisions of Section 42. Thus,
the High Court rightly held that non compliance of Section 42(1)
and Section 42(2) were proved on the record and the High Court G
did not committed any error in setting aside the conviction order.
The High Court gave sufficient reasons and grounds for setting
aside the conviction order in which there is no infirmity so as to
interfere in the instant appeal. !Paras 25, 261 1472-B-D]
State of 1'1111jab v. /Ja/bir Si11gh 199-t (3) SCC 299 : 1-1
454 SUPREME COURT REPORTS · [2016] 4 S.C.R.
A 1994 (2) SCR 208; Saiyad Mohd. Saiyad Umar Saiyed
& others v. The State Of Gujarat (1995) 3 SCC 610 :
1995 (3) SCR 117; Directorate Of Revenue & Another
v. Mohammed Nisar Holia (2008) 2 SCC 370 : 2007
(12) SCR 906; State of Punjab v. Balbir Singh (1994)
3 SCC 299 : 1994 (2) SCR 208; State of Punjab v.
B
Baldev Singh (1999) 6 SCC 172 : 1999 (3) SCR 977;
State of Himachal Pradesh v. Pirthi Chand and another
(1996) 2 SCC 37 : 1995 (6) Suppl. SCR 29; Beckodan
Abdul Rahiman v. State Of Kera/a 2002 (4) SCC 229 :
2002 (3) SCR 53; Karnail Singh v. State of Haryana
2009 (8) SCC 539 : 2009 (11) SCR 470 - referred to.
Case Law Reference
1994 (2) SCR 208 referred to Para9
1995 (3) SCR 117 referred to Para 10
D 2007 (12) SCR 906 referred to Para 18
1994 (2) SCR 208 referred to Para 19
1999 (3) SCR 977 referred to Para 22
1995 (6) Suppl. SCR 29 referred to Para 22
2002 (3) SCR 53 referred to Para 23
E 2009 (11) SCR 470 referred to Para24
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1233 of2006.
From the Judgment and Order dated 24.11.2003 of the High Court
of Judicature for Rajasthan at Jodhpur in S.8. Criminal Appeal No. 98
F
of2001.
Vivek Ranjan Mohanty, Puneet Parihar, Mil ind Kumar, Advs. for
the Appellant.
Soumen T., R. D. Rathore, Dr. Kailash Chand, Advs. for the
G Respondent.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. I. This appeal has been filed by the
State of Rajasthan against the judgment of the High Court of Judicature
of Rajasthan at Jodhpur in S.8. Criminal Appeal No.98 of 200 I dated
H
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 455
[ASHOK BHUSHAN, J.]
24.11.2003 acquitting the accused from the charges under Section 8/15 A
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'NDPS Act') after setting aside the judgment
and conviction order of Special Judge, (NDPS Cases), Hanumangarh,
Rajasthan dated 31.5.2000 by which judgment accused were sentenced
to undergo 12 years rigorous imprisonment with fine of Rs. 1,20,000/-
B
each. Accused were to go further rigorous imprisonment of one year
each in case of not depositing the fine. Accused Kishan Lal had filed
Single Bench Criminal Appeal No. 397 of2000 and accused Jagraj Singh
alias Hansa had filed Single Bench Criminal Appeal No. 98 of 200 I.
Both the appeals having been allowed by the High Court ofRajasthan,
this appeal being Criminal Appeal No. 1233 of2006 has been filed by c
the State ofRajasthan against the acquittal of Jagraj Singh alias Hansa.
The-Criminal Appeal No. 1232 of 2006 has already been dismissed by
this court.
2. The prosecution case in the nutshell is: Shfshupal Singh, Station
House Officer, Bhadra received a secret information on 9'h August, D
1998 at 8 P.M. that a blue jeep car No. HR 24-4057 would come and
pass through Haryana via Sirsa. A memo was prepared regarding the
above information which was also entered into Roznamacha and
information was also conveyed to the Circle Officer, Nohar at 8:05 p.m.
on the same day through a constable. Station House Officer along with
certain other police personnel proceeded after taking two independent E
witnesses namely Hawa Singh and Karam Singh. At I 0: 15 p.m. Jeep
HR 24-4057 was seen coming from Sahaba. It was stated that one
driver and two other persons were sitting who told their names as Jagraj
Singh and Kishan L11l. Bags were lying in the jeep. Station House Officer
gave notice to Jagraj and Krishan Lal and thereafter search was F
conducted. Nine bags containing opium powder were recovered from
the jeep for which the accused were having no licence. Opium powder
was weighed and two samples of 200 grams each were taken from
each bag. Seizure memo was prepared on the spot. Both the persons
were arrested. Material was sealed and after reaching the police station
first information report being FIR No. 291/98 was registered. Samples G
were sent to Forensic Science Laboratory, Jaipur and on receiving a
positive report, chargesheet was filed against both the accused under
section 8/15 of the Act. The prosecution produced 12 witnesses including
Station House Officer, Shishupal Singh as PD-11. Two independent
witnesses PD-2 Hawa singh and PD-3 Karam Singh were declared H
456 SUPREME COURT REPORTS [2016] 4 S.C.R.
A hostile. Pro0ecution also prodm:cd documents Sxh. :>I to P40. Statements
of accused were recorded under Section:, 13 .fCr.. '.C. Sri Ram Meena
the then Circle Officer, Nohar was examined as defe1;ce witness-I.
3. Before the Jearaed Sessions Judge, accu~~d contended lhat
the mandatory provisions of Section 42( l) and 42 (2) as well as Section
B 50 of the NDPS Act have not been complied with; b,)th the independent
witnesses have not supported tht: status of recovery and that entire action
had taken place at police starion; the chain of event is not present so as
to convicr the accust:d. The tesi report is not admi~:sible and readable.
The contenticns of accust:d wer..: n::futed by tile lei.med Special Public
Prosecutor. LearncJ Sessions Judge held that infonr.ation recdved by
c Station House Officer was recorded as Exh. P-14 . 11d the sam::: was
sent to Circle Officer, Nohar by Lxhi~1it I'·· 15. He .tee, the Station House
Officer has fully con1plicd with the provis;on:: .:i(Sc~tion3 42( l) and
42(2). Sessions Judge furtli~r held thatthe vehic? ~"'JS being used to
transport passengers as has been clearly stated by PW-4 Veera Ram,
D hence, as per expla1rntion to Section 43 of the NDPS Act, vehicle was
covered within the ambit of public p?ace. Therefore, there was no need
of any warrant or authority to search. Learned Sessions Judge also
found that Section 50 wa~ comp Iied since uoticcs were issued to both
the accused before search. Sessions Judge noted that although both the
independem witnesses have turned hostile but thr. p0lice officers and
E officials have been examined on behalf ofthi! prosecution with whom
the fact of enmity has 11ot been proved. Chain cfevcnt was complete.
After coming to the aforesaid conclusion, learned Sessions Judge
convicted both the ac.:uscd.
4. Both the Criminal Appeals filed Ly Kishan Lal and Jagraj Singh
F were decided by a commo:1judgment of the High Court dated 24.11.2003.
The High Court while allowing the appeal gave following reasons and
findings:
(i) The secret information which was recorded as Exh. P-14 and
in Exh. P-21 Roznamacha it was not mentioned that "two persons
G will come from Jhunjhnu who are carrying powder of opium'',
whereas Exh.P-15, the information sent to the Circle Officer,
Nohar which was al~o re.:eived by Circle Officer, Nohar the
above fact was mentionec'. wh:ch was missiPg in the Exh. P-14
and P-21. In view oft! ..~ aoove, Section 42(2) was not complied
1-1 with.
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 457
[ASHOK BHUSHAN, J.]
(ii) The proviso to sub-section ( 1) of Section 42 provides that if A
such officer has reasons to believe, he may carry the search after
recording the grounds of belief whereas no ground of belief as
contemplated by the proviso was recorded in the present case
and search took place after sun set which violates the provisions
of Section 42(2) proviso.
B
(iii) The jeep which was the personal jeep ofViraram could not
be treated as public transpo11 vehicle. No evidence was brought
on the record thatthere was any permit for public transport vehicle.
The brother in law ofViraram i.e. Kartararam do not support the
case that the vehicle was a public transport vehicle. Section 43 of
the Act was not applicable; hence, the view of the court below
c
that compliance of Section 42 was not necessary, is incorrect.
(iv) Further, the secret information from informer was received
and recorded and search was conducted thereafter. The present
was not a case of conducting the search at public place suddenly.
D
(v) The sealing of the material sample was not proper nor the
sample of seal was deposited in the stock house. The seal vide
which material has been sealed has not been kept safe any where,
it remained in the possession of the officer who conducted the
search.
E
(vi) The independent witnesses have not suppo11ed the case of
prosecution at all.
5. The State of Rajasthan feeling aggrieved against the judgment
of the High Com1 has come up in this appeal. Learned counsel for the
appellant has contended that there was compliance of provisions of Section
F
42(1) and (2) of Section 42 and moreover, the vehicle being used to
carry passengers as has come in the statement of the owner of the
vehicle Vira Ram PW-4 and the search being at public place, by virtue
of Section 43 there was no necessity of compliance of Section 42. It is
further contended that minor discrepancy in Exh. P-14 and that ofExh.
P-15 was inadvertent mistake due to which it cannot be said that provisions G
of Section 42(1) was not complied with. It is contended that Station
House Officer and other police personnel accompanying the team have
been examined and they have proved the recovery and chain of events.
The High Court has committed error in acquitting the accused whereas
there was sufficient ground and material to support the conviction order
H
458 SUPREME COURT REPORTS [2016] 4 S.C.R.
A recorded by the Special Judge.
6. The learned counsel appearing for the accused have supported
the judgment of the High Court and submits that compliance of provisions
of Section 42(1) and 42(2) have been held to be mandatory by this Court
and due to non compliance of the said provisions, the conviction has
B rightly been set aside by the High Court. It is submitted that Section 43
of the Act is not attracted since the search was conducted after recording
information from informer and Station House Officer himself in his
statement had stated the facts for proving compliance of Section 42,
hence, it cannot be said that compliance of Section 42 was not required
more so the jeep was personal jeep of Vira Ram and High Court has
c rightly held that there was no material to prove that jeep was a public
transport vehicle. No permit from transport authority.to ply the vehicle
as a public transport vehicle had been filed or even pleaded.
7. We have considered the submissions oflearned counsel forthe
parties and have perused the record.
D
8. Whether the High Court committed error in acquitting the
accused is the issue which needs to be considered in this appeal. Whether
there were sufficient material to suppo1i the findings of the High Court
regarding non~compl iance of Section 42( I) and Section 42 (2) and
whether Section 43 was applicable in the present case are the other
E issues which need to be answered. Whether recovery as claimed by the
prosecution is supported from the evidence on record and material and
samples were properly sealed are other related issues.
9. The NDPS Act was enacted to consolidate and amend the law
relating to narcotic drugs, to make stringent provisions for the control
F and regulation of operations relating to narcotic drugs and psychotropic
substances. This Court had occasion to consider the provisions ofNDPS
Act in large number of cases. This Court has noted that the object of·
NDPS Act is to make stringent provisions for control and regulation of
operations relating to those drugs and substances. At the same time, to
G avoid harm to the innocent persons and to avoid abuse of the provisions
by the officers, certain safeguards are provided which in the context
have to be observed strictly. This Court in State Of Punjab vs Balbir
Singh, 1994 (3) SCC 299, in paragraph 15 has made the following
obser\rations:
"15.The object of NDPS Act is to make stringent provisions
H
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 459
[ASHOK BHUSHAN, J.]
for control and regulation of operations relating to those drugs A
and substances. At the same time, to avoid harm to the innocent
persons and to avoid abuse of the provisions by the officers,
certain safeguards are provided which in the context have to
be observed strictly. Therefore these provisions make it
obligatory that such of those officers mentioned therein, on
B
receiving an information, should reduce the same to writing
and also record reasons for the belief while carrying out arrest
or search as provided under the proviso to Section 42(1). To
that extent they are mandatory. Consequently the failure to
comply with these requirements thus affects the prosecution
case and therefore vitiates the trial. " c
I 0. To the similar effect are the observations of this Court in
Saiyad Molltl. Saiyatl Umar Saiyetl & others vs. Tile State Of
Gujarat, (1995) 3 SCC 610. Following was stated in paragraph 6 of
the said judgment:
""6. It is to be noted that under the NDPS Act punishment for D
contravention of its provisions can extend to rigorous
imprisonment for a term which shall not be less than IO years
but which May extend to 20 years and also to fine which
shall not be less than Rupees one lakh but which may extend
to Rupees two lakhs, and the court is empowered to impose a E
fine exceeding Rupees two lakhs for reasons to be recorded
in its judgment. Section 54 of the NDPS Act shifts the onus of
proving his innocence upon the accused; it states that in trials
under the NDPS Act it may be presumed, unless and until the
contrary is Proved, that an accused has committed an offence
under it in respect of the articles covered by it 'for the F
possession of which he fails to account satisfactorily". Having
regard to the grave consequences that may entail the
possession of illicit ar- ticles under the NDPS Act, namely,
the shifting of the onus to the accused and the severe
punishment to which he becomes liable, the legislature has G
enacted the safeguard contained in Section 50. To obviate
any doubt as to the possession by the accused of illicit articles
under the NDPS Act, the accused is authorised to require the
search for such possession to be conducted i11 the presence
of a Gazetted Officer or a Magistrate. "
H
460 SUPREME COURT REPORTS [2016] 4 S.C.R.
A 11. In the present case, Section 42 is relevant which is extracted
as below:
" 42. Power of entry, search. seizure and arrest without
warrant or authorisation.-(!) Any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the
B departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central
Government including para-military forces or armed forces
as is empowered in this beha(f by general or special order by
the Central Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the revenue,
c drugs control, excise, police or any other department of a
State Government as is empowered in this behalf by general
or special order of the State Government, if he has reason to
believe from persons knowledge or information given by any
person and taken down in writing that any narcotic drug, or
D psychotropic substance, or controlled substance in respect
of which an offence punishable under thjs Act has been
committed or any document or other article which may furnish
evidence of the commission of such offence or any illegally
acquired property or any document or other article which
may furnish evidence of holding any illegally acquired
E property which is liable for seizure or ,fi-eezing or f01feiture
wider Chapter VA of this Act is kept or concealed in any
building, conveyance or enclosed place, may between sunrise
and sunset,
(a) enter into and search any such building, conveyance or
F place;
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
(c) seize such drug or substance and al/ materials used in the
G manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
co1?fiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or
furnish evidence of holding any illegally acquired property
H which is liable for seizure or freezing or forfeiture under
STATE OF RAJASTHAN v. JAG RAJ SINGH@ HANSA 461
[ASHOK BHUSHAN, J.]
Chapter VA of this Act; and A
(d) detain and search, and, (f he thinks proper, arrest any
person whom he has reason to believe to have committed any
offence punishable unde;· this Act:
Provided that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without 8
affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and search
such building,conveyance or enclosed place at any time
between sunset and sunrise after recording the grounds of
his belief c
(2) Where an officer takes down any information in writing
under subsection (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send a
copy thereof to his imme_diate official superior. "
12. The High Court has come to the conclusion that there is breach D
of mandatory provisions of Section 42(1) and Section 42(2) and further
Section 43 which was relied by the Special Judge for holding that there
was no necessity to comply Section 42 is not applicable. We thus proceed
to first examine the question as to whether there is breach of provisions
of Section 42(1) and Section 42(2). The breach of Section 42 has been E
found in two parts. The first part is that there is difference between the
secret information recorded in Exh. P-14 and Exh. P-21 and the
information sent to Circle Officer, Nohar by Exh. P- I 5. It is useful to
refer to the findings of the High Court in the above context, which is
quoted below:
F
"From the above examination, it is not found that Exh. P-14
the information which is stated to be received jiwn the informer
under Section 42(2) of Act or Exh. P-21, the information given
by the informer which is stated to be recorded in the
Rozanamacha, copy whereof has been sent to C. 0. Nohar,
who was the then Senior Officer, Rathe1; Exh. P-15, the letter G
which was sent, it is not the copy of Exh. P-14, but it is the
separate memo prepared of their own. From the above
examination, it is no/ found in the present case that section
42 (2) of Act, 1985 is complied with."
I 3. What Section 42(2) requires is that where an officer takes down H
462 SUPREME COURT REPORTS [2016] 4 S.C.R.
A an information in writing under sub-Section (I) he shall sent a copy
thereof to his immediate officer senior. The communication Exh. P-15
which was sent to Circle Officer, Nohar was not as per the information
recorded in Exh. P 14 and Exh. P 24. Thus, no error was committed by
the High Court in coming to the conclusion that there was breach of
Section 42(2). ·
8
14. Another aspect of non-compliance of Section 42(1) proviso,
which has been found by the High Court needs to be adverted. Section
42 ( l) indicates that any authorised officer can carry out search between
sun rise and sun set without warrant or authorisation. The scheme indicates
that in event the search has to be made between sun set and sun rise,
c the warrant would be necessary unless officer has reasons to believe
that a search warrant or authorisation cannot be obtained without affording
the oppo1iunity for escape of offender which grounds of his belief has to
be recorded. In the present case, there is no case that any ground for
belief as contemplated by proviso to sub-section ( 1) of Section 42 or
D Sub-section (2) of Section 42 was ever recorded by Station House Officer
who proceeded to carry on search. Station House Officer has appeared
as PD-11 and in his statement also he has not come with any case that
as required by the proviso to Sub-section ( 1), he recorded his grounds of
belief anywhere. The High Court after considering the entire evidence
has made following observations :
E
"Shishupal Singh PD-11 by whom search has been conducted,
on reaching at the place of occurrence by him no reasons to
believe have been recorded before conducting the search of
;eep bearing HR 24 4057 under Section 42(1), nor any
reasons in regard to not obtaining the search warrant have
F been recorded. He has also not stated any such facts in his
statements that he has conducted any proceedings in regard
to compliance of proviso of Section 42(1). Since reasons to
believe have not been recorded, therefore, under Section 42(2)
it is not found on record that copy thereof has been sent to
G the senior officials. Shishupal Singh could be the best witness
in this regard, who has not stated any fact in his statement
regarding compliance ofproviso to Section 42(1) and Section
42(2), sending of copy of reasons to believe recorded by him
to his senior officials."
H 15. In this context, it is relevant to note that before the Special
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 463
[ASHOK BHUSHAN, J.)
Judge also the breach of Section 42( 1) and 42(2) was contended on A
behalf of the defence. In paragraph 12 of the judgment Special Judge
noted the above arguments of defence. However, the arguments based
on non-compliance of Section 42 (2) were brushed aside by observing
that discrepancy in Exh. P-14 and Exh. P-15 is totally due to clerical
mistake and there was compliance of Section 42(2). Special Judge coming
B
to compliance of proviso to Section 42( 1) held that vehicle searched
was being used to transport passengers as has been clearly sated by its
owner Veera Ram, hence, as per the explanation to Section 43 of the
Act, the vehicle was a public transport vehicle and there was no need
of any warrant or authority to search such a vehicle. The High Court
has reversed the above findings of the Special Judge. We thus, proceed c
to examine as to whether Section 43 was attracted in the present case
which obviated the requirement of Section 42(1) proviso. Section 43 of
the Act is as follows:
"43. Power of seizure mu/ arrest ill public p/ace.-Any officer
of any of the depart111ents 111entioned in section 42 111ay D
(a) seize in any public place or in transit, any narcotic drug
or psychotropic substance or controlled substance in respect
of which he has reason to believe an offence punishable under
this Act has been committed, and, along with such drug or
substance, any animal or conveyance or article liable to E
confiscation under this Act, any document or other article
which he has reason to believe may furnish evidence of the
commission of an offence punishable under this Act or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this F
Act;
(b) detain and search any person whom he has reason to
believe to have committed an offence punishable under this
Act, and if such person has any narcotic drug or psychotropic
substance or controlled substance in his possession and such G
possession appears to him to be unlaiiful, arrest him and any
other person in his company.
Explanation.- 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" H
464 SUPREME COURT REPORTS [2016] 4 S.C.R.
A 16. Explanation to Section 43 defines expression "public place"
which includes any public conveyance. The word "public conveyance"
as used in the Act has to be understood as a conveyance which can be
used by pub Iic in general. The Motor Vehicles Act, 1939 and thereafter
the Motor Vehicles Act, 1988 were enacted to regulate the law relating
to motor vehicles. The vehicles whieh can be used for public are public
B
Motor Vehicles for which necessary permits have to be obtained. Without
obtaining a permit in accordance with the Motor Vehicles Act, 1988, no
vehicle can be used for transporting passengers. In the present case, it
is not the case of the prosecution that the jeep HR-24 4057 had any
permit for transporting the passengers. The High Court has looked into
c the evidence and come to the conclusion that there was no material to
indicate thatthere was any permit for running the jeep as public transport
vehicle. The High Court has further held that even Kartara Ram who
as per owner of the vehicle Veera Ram was using the vehicle, do not
support that the jeep was used as public transport vehicle. The High
Court held that personal jeep could not be treated as public transport
D
vehicle. Following observations were made by the High Court:
"Kartara Ram is produced as PD-5, who has deposed the
statement that Vira Ram is his brother-in-law (Saa/a), on whose
name jeep bearing No. HR 24 4057 is lying registered. He
had employed lnderjit singh as driver for that jeep. Person
E namely Krishan has never been employed as drive1: This
witness has been declared hostile and he has been examined
too, who does not support the prosecution case. In this manner,
Viraram is the owner of the jeep. According to him he had
given the jeep to Kartara Ram, but Kartara Ram has not stated
F anywhere in is statement that this jeep was given to him and
he used the same as Public Transport Vehicle. Since powder
of opium was caught in this jeep and even Notice Exh. P-6
was also served upon him by the police, he with a view to
save himself, can also depose such statement that Kartara
used to use the jeep as Public Transport Vehicle , whereas
G Kartara Ram PD-5 does not affirm this fact. Jeep was
personal, it is clear on the record. In this manner, just 011 this
ground that he has given the jeep to his brother-in-lmv and
he used it to carry the passengers, the personal jeep could
not be treated as public /ransport vehicle. Howeve1; the fact
1-1 that jeep is used to carry the passengers has not been affirmed
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 465
[ASHOK BHUSHAN, J.]
from the statements of Kartara Ram. There is no evidence on A
record on the basis of which it could be stated that jeep was
public transport vehicle and they have the permit for it, rather
it was the private vehicle and it is stated that Vira Ram himself
is the owner of that vehicle"
17. There is nothing to impeach the aforesaid findings. We have B
also perused the statement ofVira Ram in which statement he has never
even stated that he has any permit for running the vehicle as transport
vehicle. He has stated that "..... I had given this jeep to Kartara Ram
resident of ...... who is my relative to run it for transporting
passengers" Admittedly the jeep was intercepted and was seized by
the police. In view of the above, the jeep cannot be said to be a public
c
conveyance within the meaning of Explanation to Section 43. Hence,
Section 43 was clearly not attracted and provisions of Section 42( I)
proviso were required to be complied with and the aforesaid statutory
mandatory provisions having not been complied with, the High Court did
not commit any error in setting aside the conviction. D
18. There is one more aspect which needs to be noted. The present
is a case where prosecution himself has come with case that secret
information was received from informer which information was recorded
in Exh. P-14 and Exh. P-21 Roznamacha and thereafter the Station
House Officer with police party proceeded towards the scene. The E
present is not a case where the Station House Officer suddenly carried
out search at a public place. The Station House Officer in his statement
has also come up with the facts and case to prove compliance of Section
42. When search is conducted after recording information under Section
42(1 ), the provisions ofSection 42 has to be complied with. This Court
in Direct(}rate Of Revenue & A11(}t/zer vs M(}/wmmetl Nisar H(}/ia, F
(2008) 2 SCC 370, had occasion to consider Sections 41,42 and 43
explanation. Following was stated in paragraph 14:
"I 4. Section 43, 011 plain reading of the Act, may not attract
the rigours of Section 42 thereof That means that even
subjective satisfaction on the part of the authority, as is G
required under sub-section (]) of Section 42, need not be
complied with, only because the place whereat search is to be
made is a public place. If Section 43 is to be treated as an
exception to Section 42, it is required to be strictly complied
with. An interpretation which strikes a balance between the H
466 SUPREME COURT REPORTS [2016] 4 S.C.R.
A enforcement of law and protection of the valuable human right
of an accused must be resorted to. A declaration to the effect
that the minimum requirement, namely, compliance of Section
165 of the Code of Criminal Procedure would serve the
purpose may not suffice as non-compliance of the said
provision would not render the search a nullity. A distinction
B
therefor must be borne in mind that a search conducted on
the basis of a prior information and a case where the authority
comes across a case of commission of an offence under the
Act accidentally or per chance ... .......... "
19. Thus the present is not a case where Section 43 can be said to
c have been attracted, hence, non-compliance of Section 42( 1) proviso
and Section 42(2) had seriously prejudiced the accused. This Court had
occasion in large number of cases to consider the consequence of non-
compliance of provisions of Section 42(1) and 42(2), whether the entire
trial stand vitiated due to above non compliance or conviction can be set
D aside. In this context reference is made to the judgment of this Court in
State of Punjab Vs. Balbir Singh (1994) 3 SCC 299. In the above
batch of cases, the High Court has acquitted accused on the ground that
search was conducted without confonning to the provisions of the NDPS
Act. Sections 41,42 43 and other relevant provisions came for
consideration before this Court, referring to the provisions of Chapter
E IV following was stated in paragraph 8:
"8. But if on a prior information leading to a reasonable belief
that an offence under Chapter IV of the Act has been
committed, then in such a case, the Magistrate or the officer
empowered have to proceed and act under the provisions of
F Sections 41 and 42. Under Section 42, the empowered officer
even without a warrant issued as provided under Section 41
will have the power to enter, search, seize and arrest between
sunrise and sunset if he has reason to believe ji-0111 personal
knowledge or information given by any other person and
G taken down in writing that an offence under Chapter JV has
been committed or any document or other article which may
furnish the evidence of the commission of such offence is
kept or concealed in any building or in any place. Under the
proviso if such officer has reason to believe that search
warranl or authorisation cannot be obtained without
H
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 467
[ASHOK BHUSHAN, J.]
affording opportunity for the concealment of the evidence or A
facility for the escape of the offender, he can carry out the
arrest or search between sunset and sunrise also after
recording the grounds of his belief Sub-section (2) of 8 1990
. Cri LJ 414 (Del) Section 42 further lays down that when such
officer takes down any information in writing or records
B
grounds for this belief under the proviso, he shall forthwith·
send a copy thereof to his immediate official superior. "
20.'After referring large number of cases, this Court recorded ,•
conclusion in paragraph 25 which is to the following effect:
..25. The question considered above arise frequently before c
the trial courts. Therefore we find it necessary to set out our
conclusions which are as follows :
(1) If a police officer without any prior information .as
contemplated under the provisions of the NDPS Act makes a
search or arrests a person in the normal course of D
investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such search
is completed at that stage Section 50 of the NDPS Act would
not be attracted and the question of complying with the
requirements thereunder imuld not arise. If during such search
or arrest there is a chance recovery of any narcotic drug or E
psychotropic substance then the police office1; who is not
empowered, should inform the empowered officer who should
thereafter proceed in accordance with the provisions of the
NDPS Act. If he happens to be an empowered officer also,
then from that stage onwards, he should carry out the F
investigation in accordance with the other provisions of the
NDPS Act.
(2-A) Under Section 41 (1) only an empowered Magistrate can
issue warrant for the arrest or for the search in respect of
offences punishable under Chapter IV of the Act etc. when G
he has reason to believe that such offences have been
committed or such substances are kept or concealed in any
building, conveyance or place. When such warrant for arrest
or for search is issued by a Magistrate who is not empowered,
then such search or arrest if carried out would be illegal.
H
468 SUPREME COURT REPORTS [2016) 4 S.C.R.
A Likewise only empowered officers or duly authorized officers
as enumerated in Sections 41 (2) and 42(1) can act under the
provisions of the NDPS Act. If such arrest or search is made
under the provisions of the NDPS Act by anyone other than
such officers, the same would be illegal.
B (2-B) Under Section 41 (2) only the empowered officer can
give the authorisation to his subordinate officer to carry out
the arrest of a person or search as mentioned therein. If there
is a contravention, that would affect the prosec·ution case
and vitiate the conviction .
•
c (2-C) Under Section 42(1) the empowered officer if has a
prior information given by any person, that should necessarily
be taken down in writing. But if he has reason to believe from.
personal knowledge that offences under Chapter IV have been
committed or materials which may furnish evidence of
commission of such offences are concealed in any building
D etc. he may carry out the arrest or search without a warrant
between sunrise and sunset and this provision does not
mandate that he should record his reasons of belief But under
the proviso to Section ./2(1) if such officer has to carry out
such search between sunset and sunrise, he must record the
E grounds of his belief
To this extent these provisions are mandatory and
contravention of the same would affect the prosecution case
and vitiate the trial. (3) Under Section ./2(2) such empowered
officer who takes down any information in writing or records
F . the grounds under proviso to Section ./2(1) should forthwith
send a copy thereof to his immediate official superior. If there
is total non-compliance of this provision the same affects the
prosecution case. To that extent it is mandatory. But if there is
delay whether it was undue or whether the same hm; been
explained or not, will be a question of fact in each case.
G
(./-A) If a police officer, even if he happens to be an
"empowered" officer while effecting an arrest or search
during normal investigation into offences purely under the
provisions of CrPC fails to strictly comply with the provisions
'of Sections 100 and 165 CrPC including the requirement to
H
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 469
(ASHOK BHUSHAN, J.]
record reasons, such fai;ure would only amount to an A
irregularity.
(4-B) If an empowered officer or an authorised officer under
Section 41 (2) of the Act carries out a search, he would be
doing so under the provisions of CrPC namely Sections JOO
and 165 CrPC and if there is no strict compliance with the B
provisions of CrPC then such search would not per se be
illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the
courts while appreciating the evidence in the facts and
circumstances of each case. c
(5) On prior information the empowered officer or authorised
officer while acting under Sections ./1 (2) or 42 should comply
with the provisions of Section 50 before the search of the
person is made and such person should be informed that if
he so requires, he shall be produced before a Gazetted Officer D
or a Magistrate as provided thereunder. It is obligatory on
the part of such officer to inform the person to be searched.
Failure to inform the person to be searched and if such person
so requires, failure to take him to the Gazetted Officer or the
Magistrate, would amount to non-compliance of Section 50
which is mandatory and thus it would affect the prosecution E
case and vitiate the trial. After being so informed whether
such person opted for such a course or not would be a
question of fact.
(6) The provisions of Sections 52 and 57 which deal with the
steps to be taken by the officers after making arrest or seizure F
under Sections 41 to 44 are by themselves not mandatory. If
there is non-compliance or if there are lapses like delay etc.
then the same has to be examined to see whether any prejudice
has been caused to the accused and such failure will have a
bearing on the appreciation of evidence regarding arrest or G
seizure as well as on merits of the case. "
21. A three Judges Bench in Saiyad Moltd. Saiyad Umar Saiyed
& others vs. Tile State Of Gujarat (supra) after elaborate consideration
of provisions of the NDPS Act including section 50 had endorsed the
judgment of this court in Ralbir Singh's case (supra).
470 SUPREME COURT REPORTS [2016] 4 S.C.R.
A 22. A Constitution Bench of this Court in State of Punjab Vs.
Baldev Singlt, (1999) 6 SCC 172, had occasion to consider the
provisions of the NDPS Act and several earlier judgments of this Court.
The Constitution Bench noticed that the earlier judgments in Balbir
Singh 's case has found approval by three Judges Bench in Saiyad Moltd.
Saiyad Umar Saiyed & otlters vs. Tile State Of Gujarat (supra) and
B
a discordant note was struck by two Judges Bench in State ofHimacltal
Pradesh Vs. Pirtlti Cltwul und tmotlter, (1996) 2 SCC 37. The
Constitution Bench approved the view of this Com1 in Ba/bir Singlt's
case that there is an obligation on authorised officer under section 50 to
inform the suspect that he has right to be informed in the presence of the
c Gazetted Officer. It was held by Constitution Bench that if search is
conducted in violation of Section 50 it may not vitiate the trial but that
would render the recovery of illicit articles suspect and vitiates the
conviction and sentence of the accused. What is said about non-
compliance of Section 50 is also true with regard to non-compliance of
Section 42 of the Act.
D
23. In Beckodtm Abdul Raltinum vs State Of Kera/a, 2002 (4)
SCC 229, this Court had occasion to consider both Section 42 and
Section 50. In the above case there was non compliance of Section 42
(2) as well as Section 50. It was also noticed that a Constitution Bench
in State of Punjab Vs. Baldev Singlt (supra) has already laid down
E that provisions of Section 42 and 50 are mandatory and their non-
compliance would render the investigation i Ile gal. Following was held in
paragraphs 5 and 6:
"5.In this case the violation of the mandatory provisions is
writ large as is evident from the statement of K.R.
Premchandran (PWI). After recording the information, the
witnesses is not shown to have complied with the mandate of
sub-section (2) of Section 42 of the Act. Similarly the
provisions of Section 50 have not been complied with as the
accused has not been given any option as to whether he
G wanted to be searched in presence of a Gazetted Officer or
Magistrate.
6. We are of the firm opinion that the provisions of sub-section
(2) of Section 42 and the mandate of Section 50 were not
complied with by the prosecution which rendered the case as
H not established. In view of the violation of the mandatory
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 471
[ASHOK BHUSHAN, J.] .
prov1s1ons of the Act, the appellant was entitled to be A
acquitted .... "
24. It is also relevant to note another Constitution Bench judgment
of this Court in Karnail Singh Vs. Stute of Harya11a, 2009 (8) SCC
539, where this Court had again occasion to consider the provisions of
Sections 42 and 50. The Constitution Bench noted the divergence of B
opinion in two earlier cases which has resulted in placing the matter
before the larger Bench. The question was noticed in paragraphs I and
2 of the judgment which are to the following effect:
"l) In the case of Abdul Rashid Ibrahim Mansuri vs. State of
Gujarat, (2000) 2 SCC 513, a three-Judge Bench of this Court c
held that compliance of Section 42 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to
as "NDPS Act") is mandatory and failure to take down the
information in writing and forthwith send a report to his
immediate official superior would cause prejudice to the
accused. In the case of Sajan Abraham vs. State of Kera/a, D
(2001) 6 sec 692, which was also decided by a three-Judge
Bench, it was held that Section 42 was not mandatory and
substantial compliance was sufficient.
2) In view of the conflicting opinions regarding the scope
and applicability of Section 42 of the Act in the matter of E
conducting search, seizure and arrest without warrant or
authorization, these appeals were placed before the
ConstitutiiJn Bench to resolve the issue.
3) The statement of objects and reasons of the NDPS Act
makes it clear that to make the scheme ofpenalties sufficiently F
deterrent to meef the challenge of well organized gangs of
smugglers, and to provide the officers of a number of important
Central enforcement agencies like Narcotics, Customs, Central
Excise, etc. with the power of investigation of offences with
regard to new drugs of addiction which have come to be known G
as psychotropic substances posing serious problems to
national governments, this comprehensive law was enacted
by Parliament enabling exercise of control over"
25. After referri.ng to the earlier judgments, the Constitution Bench
came to the conclusion that non-compliance ofrequirement of Sections
H
472 SUPREME COURT REPORTS [2016] 4 S.C.R.
A 42 and 50 is impermissible whereas delayed compliance with satisfactory
explanation will be acceptable compliance of Section 42. The Constitution
Bench noted the effect of the aforesaid two decisions in paragraph 5.
The present is not a case where insofar as compliance of Section 42( I)
proviso even an arguments based on substantial compliance is raised
there is total non-compliance of Section 42(1) proviso. As observed
B
above, Section 43 being not attracted search was to be conducted after
complying the provisions of Section 42. We thus, conclude that the High
Court has rightly held that non compliance of Section 42(1) and Section
42(2) were proved on the record and the High Court has not committed
any error in setting aside the conviction order.
c 26. In view of what has been stated above, it is not necessary for
us to enter into the other reasons given by the High Court for setting
aside the conviction order. The High Court has given the sufficient
reasons and grounds for setting aside the conviction order in which we
do not find any infirmity so as to interfere in this appeal.
D 27. In the result the appeal is dismissed.
Nidhi Jain Appeal dismissed.
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