Private Vehicle Is Not A "Public Place" As Explained In Section 43 NDPS Act: Supreme Court

The Supreme Court observed that a private vehicle would not come within the expression "public place" as explained in Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The bench comprising Justices UU Lalit and KM Joseph observed that total non-compliance of Section 42 is impermissible though its rigor may get lessened in certain situations.

In this case, recovery was effected from the accused while they were sitting on road in a jeep at a public place. While upholding the conviction of the accused, the High Court held that the case of accused would be covered by Section 43 of NDPS Act and not by Section 42. Section 42 deals with Power of entry, search, seizure and arrest without warrant or authorisation while Section 43 with power of seizure and arrest in public place. 

Before the Apex Court, the accused contended that the vehicle in question was a private vehicle belonging to accused and was not a public conveyance, though parked on a public road and therefore the case would not be come under Section 43 but would be governed by the provisions of Section 42 NDPS Act.  Since Section 42 having not been complied with at all, they were entitled to acquittal, they contended relying on Constitution Bench decision  in Karnail Singh v. State of Haryana  (2009) 8 SCC 539 and a subsequent decision in State of Rajasthan v. Jagraj Singh alias Hansa (2016) 11 SCC 687.

"The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression "public place" as explained in Section 43 of the NDPS Act.", the bench observed to hold that it was Section 42 which is applicable in this case. 

Total non-compliance of Section 42 is impermissible

The bench noted the following conclusions made in Karnail Singh:

1. The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
2. But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
3. In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
4. While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.

"The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa , is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh 1 but in no case, total non-compliance of Section 42 can be accepted", the bench observed while acquitting the accused.

Case: Boota Singh Vs State Of Haryana [CrA 421 OF 2021]
Coram: Justices UU Lalit and KM Joseph
Counsel: Adv Praveen Kumar, AAG Rakesh Mudgal
Citation : LL 2021 SC 218

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