Supreme Court: 'Private vehicles' don't Fall Under Purview of Public Place As Per Explanation To Section 43 of NDPS Act

Supreme Court: 'Private vehicles' don't Fall Under Purview of Public Place As Per Explanation To Section 43 of NDPS Act

The Supreme Court (SC) in the case titled Boota Singh & Ors. (Appellants) v. State of Haryana (Respondent) held that when recovery of a banned substance is effected from a private vehicle parked on a public road, Section 43 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) will not apply.

The SC bench comprising of Justices UU Lalit and KM Joseph ruled that Section 43 of the NDPS Act will not be applicable to the case wherein a banned substance is recovered from a private vehicle parked on a public road, rather Section 42 will apply.

The Top Court stated that based on the decision of this Court in Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. Section 42 of the NDPS Act deals with Power of entry, search, seizure, and arrest without warrant or authorization while Section 43 with the power of seizure and arrest in certain situations.

The SC set aside the conviction of the accused persons in the instant matter as there was non-compliance with the provisions of Section 42 of the NDPS Act.

The Apex Court passed the aforesaid judgment on receiving an appeal filed by the accused-appellants wherein they challenged the verdict of Punjab & Haryana High Court (HC).

The factual matrix of the case is that the accused persons were caught with poppy straw in a jeep parked on the road. The Investigating Officer had deposed in his chief examination that when he raided the jeep based on tip-off he found the accused with two sacks in the jeep.

He thereafter asked the accused whether they desired their search before a gazetted officer or a Magistrate. The accused declined the offer and reposed faith in the police officer.

On behalf of the accused, the counsel before the Trial Court sought acquittal citing non-compliance with Section 42 requirements. The Trial Court held that since the recovery in question was affected by the accused while they were sitting on the road in a jeep at a public place, the case would be covered by Section 43 of the NDPS Act and not Section 42.

The Lower Court acquitted one accused however, convicted the other three accused persons, sentenced rigorous imprisonment for 10 years, and imposed a fine of Rs 1 lakh. An appeal was filed against the said order before the HC.

The HC upheld the order of the Trial Court and said that 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 the explanation to Section 43 of the Act, the public place includes a conveyance also.

An appeal was filed before the Apex Court against the order of the HC. It disagreed with the decision of the HC and stated that unless the vehicles are public transport vehicle and would not come within the expression "public place" under Section 43.

The Court concluded that the decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa is absolutely clear. Total non-compliance with 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.

The SC bench acquitted the accused while ruling that 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.

It added that the Registration Certificate of the vehicle, which has been placed on record also, does not indicate it to be a Public Transport Vehicle. Hence, the provisions of Section 42 of the NDPS Act were not complied with in the instant matter and the accused is liable to be acquitted.

It held that "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 was taken by the High Court, and acquit the appellants of the charge leveled against them. The appellants are released forthwith unless their custody is required in connection with any other offense."