BOOTA SINGH & OTHERS versus STATE OF HARYANA
[2021] 4 S.C.R. 180, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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BOOTA SINGH & OTHERS
v.
STATE OF HARYANA
(Criminal Appeal No. 421 of 2021)
APRIL 16, 2021
[UDAY UMESH LALIT AND K. M. JOSEPH, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss. 42 & 43 – Governing provisions, if s.42 or s.43 – Non-compliance
of s.42 – Secret information received by PW-4 (S.I.) that accused-
appellants were selling poppy straw in a vehicle – Raid conducted
by PW-4 along with fellow officials – Accused-appellants found
sitting in a Jeep – Notice served u/s.50 – Search led to recovery of
poppy straw – Trial court convicted appellants u/s.15 rejecting their
plea of acquittal on ground of non-compliance of s.42 – The trial
court held that s.42 was inapplicable, and that the case was covered
by s.43 as recovery was effected from the appellants while they
were sitting on road in a jeep at a public place – Conviction
confirmed by High Court, which affirmed the view of trial court –
On appeal, held: Evidence showed that the vehicle was not a public
conveyance but was a vehicle belonging to one of the accused –
Registration Certificate of the vehicle also did not indicate it to be
a Public Transport Vehicle – Explanation to s.43 showed that a
private vehicle would not come within the expression “public place”
as explained in s.43 – Thus, the instant case would not come u/s.43
but would be governed by provisions of s.42 – However, on facts,
s.42 having not been complied
with at all, the appellants were
entitled to acquittal.
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.43
– Expression “public place” as explained in s.43 – Ambit of – Held:
Explanation to s. 43 shows that a private vehicle would not come
within the expression “public place” – Words and Phrases –
Expression “public place”.
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.42
– Requirements of – Substantial or adequate compliance vis-à-vis
total non-compliance – Held: Total non-compliance of s.42 is
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impermissible – The rigor of s.42 may get lessened in situations
dealt with in Karnail Singh case but in no case, total non-compliance
of s.42 can be accepted.
Allowing the appeal, the Court
HELD : 1.1. The evidence in the present case clearly shows
that the vehicle was not a public conveyance but was a vehicle
belonging to one the accused-appellants. 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 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 shows that a private vehicle would not come
within the expression “public place” as explained in Section 43.
The relevant provision would not be Section 43 but the case would
come under Section 42. [Para 12][188-E-G]
1.2. It is an admitted position that there was total non-
compliance of the requirement of Section 42. 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 but in no case, total non-
compliance of Section 42 can be accepted. In the circumstances,
the accused-appellants are acquitted of the charge levelled against
them. [Paras 13, 14 and 15][188-G-H; 189-A-B]
Karnail Singh v. State of Haryana (2009) 8 SCC 539:
[2009] 11 SCR 470 – followed.
State of Rajasthan v. Jagraj Singh alias Hansa (2016)
11 SCC 687: [2016] 4 SCR 451– relied on.
Sukhdev Singh v.
State of Haryana, (2013) 2 SCC 212
– referred to.
Case Law Reference
[2009] 11 SCR 470
followed
Para 8
[2016] 4 SCR 451
relied on
Para 8
(2013) 2 SCC 212
referred to
Para 8
BOOTA SINGH & OTHERS v. STATE OF HARYANA
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 421 of 2021.
From the Judgment and Order dated 03.03.2020 of the High Court
of Punjab and Haryana at Chandigarh in CRA-S-1759-SB-2004.
Praveen Kumar, Rajnish Kumar Jha, Advs. for the Appellants.
Rakesh Kumar Mudgal, AAG., Kailash Kumar Mudgal, Dr.
Monika Gusain, Advs. for the Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. This appeal challenges the judgment and final order dated
03.03.2020 passed by the High Court of Punjab & Haryana at Chandigarh
dismissing CR A-S-1759-SB-2004 preferred by the appellants and
affirming their conviction and sentence under Section 15 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act” for
short).
2. The basic facts and the case of prosecution as recorded by the
High Court in its judgment are as under:
“2. The facts as put forth by the prosecution are to the effect that
on 28.01.2002, S.I. Nand Lal alongwith fellow police officials were
present at the canal bridge on Surtia-Rori road, where he received
a secret information to the effect that the accused are selling
poppy straw in a vehicle bearing registration number GUD-4997
on a ‘kacha path’ at Rori-Jatana road and they can be apprehended
if raid is conducted. Accordingly, a raid was conducted and the
accused were found sitting in the jeep bearing registration number
GUD-4997 at the aforesaid place. Major Singh, co-accused of
the appellants, managed to slip away, whereas, the appellants were
apprehend at the spot. They were found sitting upon two bags
kept in the said jeep. Notices under Section 50 of the Act were
served upon them but the appellants reposed faith upon the police
officials. The search of the bags led to the recovery of poppy
straw. One bag was containing 39 kg of poppy straw and the
second bag was containing 36 kg of poppy straw. Two samples
weighing 100 grams each were separated from each bag. The
sample parcels and the bulk parcels were converted into separate
parcels and sealed with the seal bearing impression ‘CS’. The
jeep alongwith weighing scale, two weights of 500 grams each
were also recovered and taken into possession vide recovery
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memos. Ruqa was recorded and dispatched to the police station
on the basis thereof, the FIR was registered. Subsequently, Major
Singh, co-accused, was arrested and on completion of investigation,
the challan was presented in the Court.
3.  The charge was framed. The contents thereof were read over
and explained to the appellants, to which they pleaded not guilty
and claimed trial.
4.  In support of its allegations, the prosecution has examined four
witnesses. Inspector Nand Lal (PW4) has conducted the search
of the accused in the presence of ASI Jaswant Singh (PW3). The
case property was retained in the malkhana by Kuldeep Singh
(PW2) and Constable Gurjit Singh (PW 1) took the sample parcels
to the FSL. The prosecution has also 2 of 10 produced documentary
evidence to substantiate the version as put forth by it.”
3. By order dated 15.03.2002, on an application preferred by him,
the vehicle in question was released by the Trial Court in favour of
accused Gurdeep Singh.
4. During trial, PW4 Inspector Nand Lal, the Investigating Officer
deposed in his examination-in-chief as under:
“On 28.1.2002 I was posted as Sub Inspector/SHO in Police Station
Rori. On that day, I alongwith ASI Jaswant Singh and other police
officials were present at the canal bridge on Surtia Rori-road in
connection with patrolling. I received a secret information that all
the accused are selling poppy straw in a vehicle bearing no.GUD-
4997 upon a ‘Kacha Rasta at Rori-Jatana road and
can be
apprehended red handed if a raid is conducted. I tried to join two
persons who were going to water the fields in the investigations
but they refused. Thereafter I organised a raiding party and
conducted a raid. All the accused were found in the jeep bearing
no GUD-4997, upon a kacha rasta by the side of Rori-Jatana
Road, Upon seeing the police party, one of the accused, namely,
Major fled the spot. I knew the accused Major Singh since long.
Remaining three accused were apprehended at the spot. Accused
Boota Singh, Gurdeep Singh and Gurmahender Singh alias Mitta
were found sitting upon two bags lying in the said Jeep. Thereafter,
I served notices Ex.PC, Ex.PD and Ex.PE upon accused Gurdeep,
Boota and Gurmahender Singh respectively u/s 50 of NDPS asking
BOOTA SINGH & OTHERS V. STATE OF HARYANA
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them as to whether they desired their search before a gazetted
officer or a Magistrate. Vide replies Exl.PC/1.1, Ex.PDA and
Ex.PE/I, accused Gurdeep Singh, Boota Singh and Gurmahender
Singh alias Mitta declined the offer and reposed faith in the police.
…”
In his cross-examination, the witness stated:-
“I did not record the secret information in writing. Wireless in my
jeep was out of order at that time. I did not obtain any search
warrants for conducting the search of the jeep of accused during
night hours. I did not record any ground for not obtaining the
requisite search warrants in my police file. The writing work was
done while sitting in the jeep.”
5. After considering the evidence on record, the Trial Court by its
judgment and order dated 12.08.2004, acquitted accused Major Singh
but convicted accused Boota Singh, Gurdeep Singh and Gurmohinder
Singh, under Section 15 of the NDPS Act and sentenced them to suffer
rigorous imprisonment for 10 years with imposition of fine in the sum of
Rs.1,00,000/-, in default whereof they were directed to undergo further
rigorous imprisonment for a period of two years.
On the question of applicability of Section 42 of the NDPS Act,
the Trial Court stated:-
“ … Learned counsel sought acquittal of accused due to non-
compliance of Section 42 of N.D.P.S. Act. However, above said
argument could help the accused if recovery had been effected
from the house, building etc. of the
accused. Admittedly, recovery
in question was effected from the accused while they were sitting
on road in a jeep at a public place. Therefore, case of accused
would be covered by Section 43 of N.D.P.S. Act and not by Section
42 of N.D.P.S. Act. Under these circumstances, argument of
learned counsels for accused is overruled.”
6. The convicted accused, being aggrieved, preferred the
aforementioned Criminal Appeal before the High Court, which was
dismissed by the High Court.
On the question whether the matter came within the scope of
Section 42 of the NDPS Act, the High Court observed:-
14. Furthermore, in the case in hand, the accused were present in
a jeep on a public path and in such circumstance, the provisions of
Section 43 and not of 42 of the Act come into play. As per
explanation to Section 43 of the Act, the public place includes a
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conveyance also. Section 43 of the Act contemplates a seizure
made in a public place or in transit. As such, Section 42 of the Act
is not applicable to the facts of the present case …”
7. In this appeal preferred by Boota Singh, Gurdeep Singh and
Gurmohinder Singh challenging the correctness of the decisions of the
courts below, we heard Mr. Praveen Kumar, learned counsel for the
appellants and Mr. Rakesh Mudgal, learned AAG for the State.
8. Mr. Praveen Kumar submitted inter alia:
a.
The vehicle in question was a private vehicle belonging to
accused Gurdeep Singh and was not a public conveyance,
though parked on a public road.
b.
As accepted by PW4 Inspector Nand Lal, the secret
information was not recorded in writing nor any grounds
were recorded for not obtaining the requisite search
warrants.
c.
The instant case would not be come under Section 43 but
would be governed by the provisions of Section 42 of the
NDPS Act.
d.
Section 42 having not been complied with at all, the
appellants were entitled to acquittal in terms of law laid
down in the Constitution Bench decision of this Court in
Karnail Singh v. State of Haryana1, followed in subsequent
decisions in Sukhdev Singh v. State of Haryana2, and,
State of Rajasthan v. Jagraj Singh alias Hansa3.
9. Countering the submissions, Mr. Rakesh Mudgal, learned AAG
submitted that the courts below were right in observing that the instant
case would be governed by the provisions of Section 43 of the NDPS
Act. It
was however accepted by the learned counsel that there was no
 material on record to conclude that the vehicle in question was a public
conveyance.
10. In Karnail Singh1, the Constitution Bench of this Court
concluded:-
“35. In conclusion, what is to be noticed is that Abdul
Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require
1 (2009) 8 SCC 539
2 (2013) 2 SCC 212
3 (2016) 11 SCC 687
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literal compliance with the requirements of Sections 42(1) and
42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC
(Cri) 1217] hold that the requirements of Sections 42(1) and 42(2)
need not be fulfilled at all. The effect of the two decisions was as
follows:
(a) 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).
(b) 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.
(c) 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.
(d) While total non-compliance with requirements of sub-
sections (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
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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.”
(Emphasis added)
11. In Jagraj Singh alias Hansa3, the facts were more or less
identical. In that case, the vehicle (as observed in para 5.3 of the decision)
was not a public transport vehicle. After considering the relevant
provisions and some of the decisions of this Court including the decision
in Karnail Singh1 , it was observed:-
“14.  What Section 42(2) requires is that where an officer takes
down an information in writing under sub-section (1) he shall send
a copy thereof to his immediate officer senior. The communication
Ext. P-15 which was sent to the Circle Officer, Nohar was not as
per the
information recorded in Ext. P-14 and Ext. P-21. Thus, no
error was committed by the High Court in coming to the conclusion
that there was breach of Section 42(2).
. . . . .         . . . . .      . . . . .
16.  In this context, it is relevant to note that before the Special
Judge also the breach of Sections 42(1) and 42(2) was contended
on behalf of the defence. In para 12 of the judgment the Special
Judge noted the above arguments of defence. However, the
arguments based on non-compliance with Section 42(2) were
brushed aside by observing that discrepancy in Ext. P-14 and
Ext. P-15 is totally due to clerical mistake and there was
compliance with Section 42(2). The Special Judge coming to
compliance with the proviso to Section 42(1) held that the vehicle
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searched was being used to transport passengers as has been
clearly stated by its owner Vira 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 to
examine as to whether Section 43 was attracted in the present
case which obviated the requirement of Section 42(1) proviso.
. . . . .        . . . . .         . . . . .
29.  After referring to the earlier judgments, the Constitution
Bench came to the conclusion that non-compliance with
requirement of Sections 42 and 50 is impermissible whereas delayed
compliance with satisfactory explanation will be acceptable
compliance with Section 42. The Constitution Bench noted the
effect of the aforesaid two decisions in para 5. The present is not
a case where insofar as compliance with Section 42(1) proviso
even an argument based on substantial compliance is raised there
is total non-compliance with Section 42(1) proviso. As observed
above, Section 43 being not attracted, search was to be conducted
after complying with the provisions of Section 42. We thus, conclude
that the High Court has rightly held that non-compliance with
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.”
(Emphasis added)
12. 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. On the strength of the decision of this
Court in Jagraj Singh alias Hansa3, the relevant provision would not
be Section 43 of the NDPS Act but the case would come under Section
42 of the NDPS Act.
13. It is an admitted position that there was total non-compliance
of the requirements of Section 42 of the NDPS Act.
14. The decision of this Court in Karnail Singh1 as followed in
Jagraj Singh alias Hansa3, is absolutely clear. Total non-compliance
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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
Singh1 but in no case, total non-compliance of Section 42 can be
accepted.
15. In the circumstances, the courts below fell in error in rejecting
the submissions advanced on behalf of the appellants. We, therefore,
allow this appeal, set-aside the view taken by the High Court and acquit
the appellants of the charge levelled against them. The appellants be
released forthwith unless their custody is required in connection with
any other offence.
Bibhuti Bhushan Bose
Appeal allowed.
BOOTA SINGH & OTHERS V. STATE OF HARYANA
[UDAY UMESH LALIT, J.]