S.42 NDPS Act Not Applicable To Vehicle "In Transit", Not Mandatory To Obtain Warrant Even If Search Conducted After Sunset: P&H High Court

The court was dealing with bail petitions of the petitioners from whose possession commercial quantities of heroin was recovered. It held that in case of a search of vehicle in transit there is no requirement to obtain search warrant even it is conducted after sunset by a non-gazetted officer.

Another material distinction between search of a building, conveyance or enclosed place conducted under provisions of Section 42 of the Act and a search of a vehicle in 'transit' in terms of Section 43 of the Act is that in case of a search of vehicle in transit there is no requirement of obtaining any search warrant even if search is conducted after sunset by a non-gazetted officer unlike a case of search of a building, conveyance or an enclosed place.

The bench comprising Justice Gurvinder Singh Gill further added that the antecedents of an accused cannot ipso facto be made a basis for dismissal of his bail application but limitations of Section 37 have also to be borne in mind, wherein bail application can be dismissed unless court has reasonable grounds for believing that accused is not guilty and not likely to commit any offence on bail.

The court was dealing with regular bail pleas in a case registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The instant order was to dispose off bail petitions of three petitioners from whom commercial quantity of heroin was recovered.

Relevant facts of the case were that the police on receipt of secret information conducted searches of three people as per Section 49 and 50 of the NDPS Act and recovered 600 grams, 550 grams and 370 grams of heroin from them accordingly. The court combined bail pleas of all three accused persons to decide them together.

Regarding violation of Section 42 which deals with power of entry, search, seizure and arrest without warrant or authorisation and Section 43 which deals with power of seizure and arrest in public place, the court held that there is a distinction between search of a building, conveyance or enclosed place conducted under provisions of Section 42 of the Act and a search of a vehicle in 'transit' in terms of Section 43 of the Act.

Court placed reliance on the judgement of Constitutional Bench of the Supreme Court in State of Punjab vs. Baldev Singh 1999(3) RCR(Crl) 533, wherein the court differentiated Section 42 with Section 43.

The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful.

Court further placed reliance on the judgement of Crl. A. No. 165-DB of 2022 - Dharminder Kumar versus State of Punjab wherein it was held that if a conveyance is intercepted or apprehended at a public place or in transit then the provisions of Section 42 of the Act would not be applicable.

By harmoniously construing Sections 42 and 43 of the Act it can be safely concluded that if a conveyance is intercepted or apprehended at a public place or in transit then the provisions of Section 42 of the Act would not be applicable.

After relying on the judgement of 2021(10) SCC 100 Union of India through Narcotics Control Bureau, Lucknow versus Md. Nawaz Khan, the court noted that the question regarding compliance or non-compliance of Section 42 of the Act is not strictly required to be gone into at the time of granting bail, as the same is a matter, to be adjudicated at the time of trial.

In view of the discussion made above, the court held that in the instant case the vehicle was in 'transit' in a public place and search was conducted in presence of a Gazetted Officer. Hence, provisions of Section 43 and not Section 42 would get attracted.

Regarding antecedents of accused, the court noted that the law regarding this is well settled that the antecedents of an accused cannot ipso facto be made a basis for dismissal of his bail application but limitations of Section 37 have also to be borne in mind, wherein two conditions are provided in which the accused possessing commercial quantity of contraband cannot be released on bail.

Insofar as the contention of the petitioners based on Prabhakar Tewari's case (supra) to the effect that the antecedents of an accused cannot ipso facto be made a basis for dismissal of bail application is concerned, there is no dispute as regards the said broad proposition of law. However, the limitations imposed by Section 37 of the Act in the matter of grant of bail have also to be borne in mind, wherein it is specifically provided that any person accused of possessing commercial quantity of contraband is not to be released on bail, unless the following two conditions are satisfied :-

(a) that the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence; and

(b) that he is not likely to commit any offence while on bail.

Therefore, in view the fact that it is a case of recovery of 'commercial quantity' of contraband from each of the three petitioners, the fetters imposed by Section 37 of the Act are attracted.

Regarding delay in conclusion of trial, the court held that the conclusion of trial is delayed due to COVID-19 but the fact that the petitioners have been behind bars for more than 2 years cannot be overlooked. Therefore, the court directed the trial Court to frame a schedule of dates in advance for summoning the witnesses for ensuring their timely presence.

Court further directed the prosecution to ensure the presence of all the PWs and the District Attorney concerned take necessary steps for securing the presence of the remaining PWs.

Case Title: Mandeep Kaur Versus State of Punjab , with connected matters

Citation: 2022 LiveLaw (PH) 235 

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