[S. 43 NDPS Act] Vehicle Transporting Narcotics Detected By Locals And Subsequently Seized By Police Is A 'Chance Recovery From Public Place': Manipur High Court

The Manipur High Court has held that narcotic substances detected by locals in one jurisdiction, transferred to another jurisdiction for safety and subsequently seized by the police of latter justification is a chance recovery attracting Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Justice A. Guneshwar Sharma was hearing a revision petition filed against the decision of the Special Trial Court, Thoubal in discharging the accused/respondents under the NDPS Act. The contrabands were detected by the locals in Phoudel when the vehicle of the accused broke down. The locals later transferred it to Thoubal for safety. The Thoubal District Police seized the vehicle containing contrabands of commercial quantity and arrested the accused no. 1 with the help of local people. Subsequently, the rest of the accused were arrested.

The Special Trial Court had discharged the accused on two grounds. First, that change of place of occurrence from Phoudel to Thoubal suffers from irregularities and second, that police have not complied with the mandatory provisions of Section 41 (power of magistrate to issue warrant), Section 42 (power of officer to search, seize and arrest without warrant) and Section 50 (conditions under which search of persons shall be conducted) of NDPS Act.

Transport of narcotics is a continuing offence, can have multiple places of occurence

The High Court examined Sections 177 and 178 CrPC which provide for the place of trial and occurrence of an offence. The Court noted that these provisions refer to the jurisdiction of the court to conduct trial and not the jurisdiction of the police station. In the present case, the High Court observed that both Phoudel and Thoubal are within the jurisdiction of the Special Court. As the accused were transporting the contrabands of commercial quantity to different jurisdictions, it was a continuing offence.

“…the offence of possession and transportation of narcotic substance of commercial quantity is still a continuing offence. It started from Moreh border town in Manipur and the drugs were to travel through Assam and Tripura before reaching Bangladesh. This Court is of the opinion that…Phoudel cannot be stated as the only place of occurrence. Accordingly, it is held that the Special Court (ND&PS), Thoubal has committed manifest error in concluding that the campus of Thoubal PS is not a place of occurrence.”

Thus, it was held that the Special Court was wrong in holding that Thoubal was not a place of occurrence and discharging the accused on this ground.

Application of Section 43 of the NDPS Act

With regard to the non-compliance of the police to Sections 41, 42 and 50 the NDPS Act, the High Court remarked that for the applicability of Sections 41 and 42, the officers should have prior knowledge about the possession and storage of narcotic substances in any building or place, whereas Section 50 applies when a body search is conducted in a public place inthe presence of a gazetted officer. It referred to Section 43 of the NDPS Act which is attracted when the search and seizure is made from a public place by way of chance recovery.

“The provisions of Section 43 of ND&PS Act will be attracted in case of chance seizure of narcotic substance in transit or arrest in any public place…Section 43 of the Act will be applicable where the search and seizure is made from the vehicle used by way of chance recovery from public place. Prior knowledge is not a mandatory requirement of Section 43, unlike Sections 41 and 42 of ND&PS Act.”

In the present case, the court observed that the police had no prior information about the accused carrying of the contraband in the seized vehicle. The contrabands were detected by the local people first and then by the police. Thus, Sections 41 and 42 do not apply as there was no prior knowledge. As it was a chance recovery, Section 43 applies to the present case. It further remarked that the examination on the non-compliance of mandatory provisions by the Trial Court has to be done during the trial and not during the charge hearing proceeding. It was held that:

“In the circumstances, this Court is of the firmed opinion that the provisions of Sections 41 and 42 of the Act may not be attracted and discharge on this ground is not warranted. The applicability and violation of such mandatory provisions have to be examined during the trial on minute appreciation of the materials on record and the depositions of the witnesses. In a charge hearing proceeding, the court ought not to have presumed the factual aspects which can be verified only during the trial.”

Thus the High Court set aside the order of the Special Court in discharging the accused persons.

Case title: State of Manipur & Anr. vs. Mohammad Hussain @ Thoiba & Ors., Cril.Revision Petition No. 10 of 2021

Citation: 2024 LiveLaw (Man) 5

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