http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4

CASE NO.:

Appeal (crl.) 918 of 1998

PETITIONER:

State of Haryana

RESPONDENT:

Jarnail Singh and others

DATE OF JUDGMENT: 29/04/2004

BENCH:

N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT:

J U D G M E N T

B.P. SINGH, J.

The State of Haryana has preferred this appeal by

special leave against the judgment and order of the High

Court of Punjab and Haryana at Chandigarh dated August

29, 1997 in Criminal Appeal No.146-SB/96 whereby the

High Court acquitted the respondents of the charge under

Section 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as 'the NDPS

Act') for non compliance with the requirements of Sections

42 and 50 thereof. Earlier, the respondents were tried by

the Additional District Judge, Ambala who found them

guilty of the offence under Section 15 of the NDPS Act and

sentenced them to rigorous imprisonment for 10 years each

and to pay a fine of Rs. 1 lakh each and in default of

payment of fine to undergo further rigorous imprisonment

for two years.

The facts of the case are not in dispute. The case of

the prosecution is that on February 20, 1992 Sub-Inspector

Mehar Singh, SHO Police Station Mullana alongwith Head

Constable Om Prakash and other members of the police

force, was on patrolling duty and was moving about in a

government jeep. On the way they met Mahinder Singh

Ahlawat, Superintendent of Police, whereafter alongwith

him they started checking vehicles moving on the highway

at about 8.00 p.m. For this they held a naka bandi on the

turning of village Dhanora. At about that time a tanker

bearing No.URM-2092 came from the side of Sadhora. It

was signalled to stop, but rather than stopping, the tanker

sped away. This gave rise to suspicion and therefore the

tanker was chased and compelled to stop. It was found that

there were three persons sitting in the cabin of the tanker

and it was being driven by respondent Mohan Krishan.

The others two, namely Jarnail Singh and Prithvi Raj were

sitting with him. They were interrogated and thereafter the

tanker was searched in the presence of the witnesses and the

Superintendent of Police. On the opening of the lid of the

middle chamber of the tanker a lot of gunny bags were

found lying there. One of the gunny bags was taken out and

on being checked it was found to contain poppy husk.

Thereafter all the bags were taken out numbering 73 and on

checking, it was found that they also were filled with poppy

husk. Weighing scales were brought and the bags were

weighed separately. It was found that each bag contained

18 kgs. of poppy husk. Thereafter the samples were sealed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4

as required by law and thereafter all necessary steps were

taken under the NDPS Act and the Rules. The respondents

were put up for trial and were convicted by the trial court

as noticed earlier. On appeal by the respondents the High

Court held that they were entitled to acquittal in view of the

fact that the mandatory requirements of Section 50 and

Section 42 of the NDPS Act were not complied with. The

High Court held that the provisions of Section 50 of the

NDPS Act applied and before searching the vehicle the

accused had to be informed of his right to be searched in the

presence of a Magistrate or a gazetted officer. It made no

difference that a Superintendent of Police, who was a

gazetted officer, was a member of the searching party who

searched the vehicle. It further held that Section 42 of the

Act had not been complied with inasmuch as the SHO

Mehar Singh did not record the grounds for his belief

before entering upon the search that he had reasons to

believe that some contraband offending the NDPS Act was

being carried in the vehicle and that an attempt to get a

search warrant from a competent Magistrate would

frustrate the object or facilitate escape of the offender.

Consequently the trial was vitiated also for non-compliance

of the provisions of the proviso to Section 42(1) of the NDPS

Act.

In the appeal before us counsel for the State of

Haryana contended that the High Court was entirely wrong

in holding that the provisions of Sections 42 and 50 of the

NDPS Act applied to the facts and circumstances of this

case. He argued that the search was not made in a private

enclosed place but was made in a public place, namely the

highway. Thus Section 43 of the NDPS Act was applicable

and not Section 42. There was, therefore, no obligation to

comply with the requirements of Section 42. Secondly,

Section 50 of the NDPS Act did not apply to the facts of the

case because the contraband article was not recovered on

personal search of the accused, but on search of the vehicle.

Section 50 is limited in its application to personal search.

Learned counsel for the respondents, however, sought

to support the findings of the High Court.

Having heard learned counsel for the parties we are

of the view that the judgment and order of the High Court

is clearly erroneous and must be set aside. A Constitution

Bench of this Court in State of Punjab vs. Baldev Singh :

(1999) 6 SCC 172 exhaustively considered the various

provisions of the NDPS Act. As regards application of

Section 50 of the NDPS Act, the Court came to the following

conclusion :-

"On its plain reading, Section 50 would come

into play only in the case of a search of a person

as distinguished from search of any premises

etc. However, if the empowered officer, without

any prior information as contemplated by

Section 42 of the Act makes a search or causes

arrest of a person during the normal course of

investigation into an offence or suspected

offence and on completion of that search, a

contraband under the NDPS Act is also

recovered, the requirements of Section 50 of the

Act are not attracted."

The same view has been reiterated in several decisions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4

of this Court including Kalema Tumba vs. State of

Maharashtra and another : (1999) 8 SCC 257 ; Gurbax Singh

vs. State of Haryana : (2001) 3 SCC 28 ; Madan Lal vs. State

of H.P. : (2003) 7 SCC 465 ; Birakishore Kar vs. State of

Orissa : (2000) 9 SCC 541 and Saikou Jabbi vs. State of

Maharashtra : (2004) 2 SCC 186. The language of Section

50 is clear and unambiguous and the law so well settled that

it is not possible to take a different view. We must,

therefore, hold that Section 50 of the NDPS Act did not

apply to the facts of this case, where on search of a tanker, a

vehicle, poppy husk was recovered. This not being a case of

personal search, Section 50 was not applicable. Moreover

there was no prior information regarding the contraband

being carried in a vehicle, and the recovery was the result of

checking of the vehicle in normal course.

The next question is whether Section 42 of the NDPS

Act applies to the facts of this case. In our view Section 42

of the NDPS Act has no application to the facts of this case.

Section 42 authorises an officer of the departments

enumerated therein, who are duly empowered in this

behalf, to enter into and search any such building,

conveyance or place, if he has reason to believe from

personal knowledge or information given by any person and

taken down in writing that any narcotic drug or

psychotropic substance etc. is kept or concealed in any

building, conveyance or enclosed place. This power can be

exercised freely between sunrise and sunset but between

sunset and sunrise if such an officer proposes to enter and

search such building, conveyance or enclosed place, he must

record the grounds for his belief that a search warrant or

authorization cannot be obtained without affording

opportunity for the concealment of evidence or facility for

the escape of an offender.

Section 43 of the NDPS Act provides that any officer

of any of the departments mentioned in Section 42 may

seize in any public place or in transit any narcotic drug or

psychotropic substance etc. in respect of which he has

reason to believe that an offence punishable under the Act

has been committed. He is also authorized to detain and

search any person whom he has reason to believe to have

committed an offence punishable under the Act.

Explanation to Section 43 lays down that 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.

Sections 42 and 43, therefore, contemplate two

different situations. Section 42 contemplates entry into and

search of any building, conveyance or enclosed place, while

Section 43 contemplates a seizure made in any public place

or in transit. If seizure is made under Section 42 between

sunset and sunrise, the requirement of the proviso thereto

has to be complied with. There is no such proviso in Section

43 of the Act and, therefore, it is obvious that if a public

conveyance is searched in a public place, the officer making

the search is not required to record his satisfaction as

contemplated by the proviso to Section 42 of the NDPS Act

for searching the vehicle between sunset and the sunrise.

In the instant case there is no dispute that the tanker

was moving on the public highway when it was stopped and

searched. Section 43 therefore clearly applied to the facts of

this case. Such being the factual position there was no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4

requirement of the officer conducting the search to record

the grounds of his belief as contemplated by the proviso to

Section 42. Moreover it cannot be lost sight of that the

Superintendent of Police was also a member of the

searching party. It has been held by this Court in M.

Prabhulal vs. Assistant Director, Directorate of Revenue

Intelligence : (2003) 8 SCC 449 that where a search is

conducted by a gazetted officer himself acting under Section

41 of the NDPS Act, it was not necessary to comply with the

requirement of Section 42. For this reason also, in the facts

of this case, it was not necessary to comply with the

requirement of the proviso to Section 42 of the NDPS Act.

We, therefore, hold that in the facts of this case

Section 50 of the NDPS Act was not applicable since the

contraband was recovered on search of a vehicle and there

was no personal search involved. The requirement of the

proviso to Section 42 was also not required to be complied

with since the recovery was made at a public place and was,

therefore, governed by Section 43 of the Act which did not

lay down any such requirement. Additionally, since the

Superintendent of Police was a member of the search party

and was exercising his authority under Section 41 of the

NDPS Act, the proviso to Section 42 were not attracted.

In the result this appeal is allowed, the judgment and

order of the High Court is set aside and the respondents are

sentenced to undergo rigorous imprisonment for ten years

each under Section 15 of the NDPS Act and to pay a fine of

Rs.1,00,000/-, in default to suffer further rigorous

imprisonment for a period of two years. The respondents

shall be taken into custody to serve out the sentence subject

to the provisions of Section 428 of the Criminal Procedure

Code.