STATE OF RAJASTHAN versus JAG RAJ SINGH @ HANSA
[2016] 4 S.C.R. 451, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Ratio
[2016) 4 S.C.R. 451 
STATE OF RAJASTHAN 
v. 
JAG RAJ SINGH @ HANSA 
(Criminal Appeal No. 1233 of2006) 
JUNE29,2016 
[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 
- 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 
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 
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 
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 
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 
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and Psychotropic Substances Act, 1985 has been found in two 
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SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
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 
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 
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 
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 
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 
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 
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
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
453 
was no material to indicate that there was any permit for running 
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 
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 
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 
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 
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 
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 
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 : 
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· [2016] 4 S.C.R. 
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. 
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 
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 
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 
of2001. 
Vivek Ranjan Mohanty, Puneet Parihar, Mil ind Kumar, Advs. for 
the Appellant. 
Soumen T., R. D. Rathore, Dr. Kailash Chand, Advs. for the 
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Respondent. 
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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
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
[ASHOK BHUSHAN, J.] 
24.11.2003 acquitting the accused from the charges under Section 8/15 
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/-
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 
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, 
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 
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 
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 
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 
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[2016] 4 S.C.R. 
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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. 
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3. Before the Jearaed Sessions Judge, accu~~d contended lhat 
the mandatory provisions of Section 42( l) and 42 (2) as well as Section 
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 
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, 
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 I ied 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 
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 
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 
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 
with.
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
[ASHOK BHUSHAN, J.] 
(ii) The proviso to sub-section ( 1) of Section 42 provides that if 
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. 
(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 
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. 
(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. 
(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 
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 
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 
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SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
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 
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 
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. 
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 
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 
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 
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
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
[ASHOK BHUSHAN, J.] 
for control and regulation of operations relating to those drugs 
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 
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. " 
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 
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 
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 
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 
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. " 
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[2016] 4 S.C.R. 
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 
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, 
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 
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 
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 
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 
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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 
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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 
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(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 
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 
(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 
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 
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: 
"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 
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 
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SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
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). 
· 
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, 
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 
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 : 
"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 
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 
the senior officials. Shishupal Singh could be the best witness 
in this regard, who has not stated any fact in his statement 
regarding compliance of proviso to Section 42(1) and Section 
42(2), sending of copy of reasons to believe recorded by him 
to his senior officials." 
15. In this context, it is relevant to note that before the Special
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
[ASHOK BHUSHAN, J.) 
Judge also the breach of Section 42( 1) and 42(2) was contended on 
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 
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 
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 
(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 
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 
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 
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" 
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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 I ic 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 
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 
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 
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 
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 
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 
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 
that jeep is used to carry the passengers has not been affirmed
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
[ASHOK BHUSHAN, J.] 
from the statements of Kartara Ram. There is no evidence on 
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 
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 
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. 
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 
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, 
(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 
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 
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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 
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 
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 
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 
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 
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 
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
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
467 
[ASHOK BHUSHAN, J.] 
affording opportunity for the concealment of the evidence or 
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 
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 
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 
investigation into an offence or suspected offences as 
provided under the provisions of Cr PC 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 
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 
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 
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. 
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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. 
(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 . 
• 
(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 
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 
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 
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. 
(./-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 Cr PC fails to strictly comply with the provisions 
'of Sections 100 and 165 CrPC including the requirement to
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
(ASHOK BHUSHAN, J.] 
record reasons, such fai;ure would only amount to an 
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 
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. 
(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 
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 
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 
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 
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). 
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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 
a discordant note was struck by two Judges Bench in State of Himacltal 
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 
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. 
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 
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 
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 
not established. In view of the violation of the mandatory
STATE OF RAJASTHAN v. JAG RAJ SINGH @ HANSA 
[ASHOK BHUSHAN, J.] . 
prov1s1ons of the Act, the appellant was entitled to be 
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 
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 
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, 
(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 
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 of penalties sufficiently 
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 
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 
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[2016] 4 S.C.R. 
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 
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. 
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. 
27. In the result the appeal is dismissed. 
Nidhi Jain 
Appeal dismissed.