private vehicle on public road is private
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.421 OF 2021
BOOTA SINGH & OTHERS Appellants
Versus
STATE OF HARYANA Respondent
J U D G M E N T
Uday Umesh Lalit,
....
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.
...
10. In Karnail Singh
1
, 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 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.
8
(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 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.
(Emphasis added)
9
11. In Jagraj Singh alias Hansa
3
, 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 Singh
1
, 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).
. . . . . . . . . .
. . . . .
10
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 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)
11
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
Hansa
3
, 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 Singh
1
as followed in Jagraj
Singh alias Hansa
3
, 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.