Punjab-Haryana High Court
Sewa Singh vs State Of Punjab on 6 November, 2023
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
CRM-M-41618-2023
Reserved On: 31.10.2023
Pronounced On: 06.11.2023
Sewa Singh .....Petitioner
Vs.
State of Punjab .....Respondent
CORAM: - HON'BLE MR. JUSTICE DEEPAK GUPTA
Present: - Mr. Imaan Singh Khara, Advocate
for the petitioner
Mr. M.S. Nagra, AAG, Punjab.
****
DEEPAK GUPTA, J. (ORAL)
The petitioner prays for regular bail by way of this petition filed
under Section 439 Cr.P.C in case FIR No.115 dated 31.08.2022 under Section
15 of NDPS Act, 1985 registered at Police Station Sujanpur, District Pathankot.
2. As per prosecution allegations, as noticed by the trial court, on
31.08.2022, secret information was received by SI Ram Bhajan, when he was
present along with other officials at bridge No.5, Sujanpur in connection with
patrolling and checking of vehicles, to the effect that three youngsters were
coming in truck bearing registration No. PB-08-BU-9855, having loaded heavy
quantity of poppy husk in their truck, from the side of Lakhanpur (J&K).
Finding the information to be reliable, siege was laid. After sometime, the truck
in question was found coming from the side of Madhopur. Driver of the truck
stopped the same on giving signal. However, one of the occupants fled away
1 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
from the spot after opening the window from conductor side. The driver and
other occupant were apprehended. The driver disclosed his name as Jagga
Singh; whereas, the other occupant disclosed his name as Sewa Singh
(petitioner). SI Ram Bhajan appraised them of their legal right to be searched
from him (SI Ram Bhajan) or some Gazetted Officer or the Magistrate. The
accused opted to be searched from Gazetted Officer. DSP Rajinder Singh was
called at the spot and after completing necessary formalities, search was
conducted in his presence and 13 plastic bags concealed under Tarpaulin were
recovered and on checking, poppy husk was found contained powder. Total
weight of the poppy husk in all the thirteen bags was found to be 300 Kg. It was
taken into possession after completing necessary formalities. Petitioner and co-
accused were arrested.
3. (i) It is contended by learned counsel that petitioner has been falsely
implicated, as he is neither the owner nor the driver of the truck, from which the
contraband was recovered.
(ii) Further, it is argued that there is violation of Section 42 of NDPS
Act, as no information was sent by the Investigating Officer nor the secret
information was reduced into writing. Learned counsel has referred to "Karnail
Singh v. State of Haryana (SC) 2009(5) R.C.R.(Criminal) 515; Boota Singh v.
State of Haryana (SC): Law Finder Doc Id # 1831542; Gurjant Singh v. State
of Punjab, (Punjab And Haryana): Law Finder Doc Id # 2004148; Pankaj v.
State of Punjab (P&H): Law Finder Doc Id # 2013404.
(iii) Learned counsel further contended that there is violation of Section
50 of the NDPS Act also, because the offer for search was not made as per law.
Page N: 2 of 12 Pages
2 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
The presence of DSP is also alleged to be doubtful as no writing work was done
by him. For non-compliance of Section 50 of the NDPS Act, learned counsel
has referred to "State of Rajasthan V. Parmanand (SC): Law Finder Doc Id #
528107 & Union of India v. Shah Alam, (SC): Law Finder Doc Id # 195476".
(iv) Learned counsel further contends that petitioner is in custody since
31.08.2022; that trial may take time to conclude; that all witnesses cited by the
prosecution are police personnel and so, in all these circumstances petitioner be
allowed bail.
4. Strongly opposing the bail petition, learned State counsel submits
that recovered quantity of contraband falls in the commercial category. It is
further submitted that petitioner has criminal antecedents, as he is involved in
one more case under NDPS Act. It is submitted that since the recovery of
contraband was effected on the basis of secret information, from a vehicle in
transit, therefore, Section 42 of the NDPS Act has no applicability and as the
recovery has been effected in the presence of a Gazetted Officer i.e., DSP, so
provisions of Section 43 of the Act are applicable. Learned State counsel has
referred to Mandeep Kaur v. State of Punjab, (Punjab and Haryana): Law
Finder Doc Id # 2020298. Learned State counsel further submits that though
the offer was made to be searched by SI Ram Bhajan or by the Gazetted Officer
or by the Magistrate but petitioner chose to be searched in the presence of
Gazetted Officer and then search was conducted in the presence of DSP i.e.,
Gazetted Officer and so, there is compliance of Section 50 of NDPS Act.
Learned State counsel submits that in Parmanand's case relied by counsel for
the petitioner, search was conducted by a member of the raiding party and it
Page N: 3 of 12 Pages
3 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
was because of that reason that said search was held to be vitiated for violation
of Section 50 of NDPS Act. Learned State counsel also drawn attention towards
the bar contained in Section 37 of NDPS Act so as to grant bail in such like
cases involving recovery of contraband of the commercial category, particularly
considering the criminal antecedents of the petitioner. Prayer is made for
rejecting the petition.
5. I have considered submissions of both the sides and have perused
the record.
6. No doubt that it has been held by Hon'ble Supreme Court in
Karnail Singh V. State of Haryana (supra) that total non-compliance of
Section 42 of NDPS Act is impermissible, though delay in compliance with
satisfactory explanation will be acceptable compliance and that in the present
case, there is no compliance of Section 42 of the Act but the question is that
whether in the facts and circumstances of the present case, compliance of
Section 42 of the NDPS Act was required.
7. As per prosecution allegations, the truck occupied by the petitioner
and co-accused, was in transit when the secret information was received to the
effect that truck was carrying contraband. The recovery was effected from the
vehicle in transit after it was stopped on giving a signal. The recovery was not
effected from any building, conveyance or enclosed place.
8. The distinction between Section 42 & 43 of the Act has been
considered in detail by this High Court in Mandeep Kaur v. State of Punjab
(supra), wherein the Court also discussed distinction between the facts of
Boota Singh's case (as relied by counsel for the petitioner in this case) and the
Page N: 4 of 12 Pages
4 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
facts similar to the present case and then held as under:
"16. Upon perusal of the above cited Boota Singh's case (supra), this Court
finds that the factual position was distinct on some material aspects which
determine as to whether Section 42 of the Act would apply or as to Section
43 of the Act would get attracted. The said distinctions are stated herein-
under:
Boota Singh's case Present case
In Boota Singh's case, secret In the present case, secret information
information had been received to was received to the effect that Ranjit
the effect that the accused are Singh, Harjit Singh and Mandeep Kaur
selling 'poppy straw from a are proceeding in a car for the purpose
vehicle on a katcha path and of supplying heroin and could be
they could be apprehended in caught red- handed. Purusant to
case raid is conducted. information, the police was able to
Accordingly, raid was conducted intercept the said car and three persons
and while two persons were sitting in car were detained by
found sitting on the bags kept in Inspector Vikrant Sharma. Later when
a Jeep, another managed to DSP reached at spot, their search was
escape. It however, needs to be effected leading to the recovery of
noticed that in the cited case, the heroin from each of them from personal
vehicle in question was found search. In other words, the contraband
'parked on an un-metalled path. was in process of 'transit' unlike in
Search of two bags led to the Boota Singh's case where the accused
recovery of poppy straw. were selling from a 'parked' jeep.
Search was conducted by Officer While Inspector Vikrant had detained
of the rank of Inspector. the accused, the search was conducted
only after Gazetted Officer of the rank
of DSP came at the spot.
17. Though, the distinctions are rather fine distinctions but the same would
have entirely different ramifications. In Boota Singh's case, the accused were
selling poppy straw from a jeep 'parked' on an unmettaled path, whereas in the
present case the vehicle was on the move i.e., the contraband was in 'transit'.
Page N: 5 of 12 Pages
5 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
Another distinction, as noticed above is that while in Boota Singh's case, the
search was conducted by an officer of the rank of Inspector, who while drawing
powers under Section 42 of the Act, would have some limitations as regards
timing of search and would be required to observe some checks in the shape of
taking down secret information in writing and conveying to superiors, but in
the present case the Inspector had merely 'detained' the car in transit in which
accused were travelling and search was conducted when DSP, i.e. a Gazetted
Officer came at the spot and in which case the search would be in exercise of
powers conferred by Section 43 of the Act wherein the limitations as are there
in Section 42 of the Act do not apply. Section 41(2) of the Act would also come
into play as search being in presence of gazetted officer, the restrictions as
regards timing of search or intimation to superiors as imposed by Section
42 of the Act would not be there. The relevant provisions of Sections
42 and 43 of the Act are juxtaposed below:
Section 42 Section 43
Power of entry, search, seizure Power of seizure and arrest in public
and arrest without warrant or place.
authorisation-
Any such officer (being an officer Any officer of any of the departments
superior in rank to a peon, sepoy mentioned in section 42 may-
or constable) of the departments
of central excise, narcotics, or (a) seize in any public place or in
any other department....... if he transit, any narcotic drug or
has reason to believe from psychotropic substance .... ..... .......
personal knowledge or along with such drug or substance, any
information given by any person animal or conveyance .... ...... ....
and taken down in writing that
any narcotic drug, or (b) detain and search any person whom
psychotropic substance, is kept he has reason to believe to have
or concealed in any building, committed an offence punishable under
conveyance or enclosed place, this Act, and if such person has any
may between sunrise and sunset, narcotic drug or psychotropic
(a) enter into and search any substance or controlled substance in his
Page N: 6 of 12 Pages
6 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
such building, conveyance or possession and such possession
place; appears to him to be unlawful, arrest
(b) .... .... .... .... ..... him and any other person in his
Provided that if such officer has company.
reason to believe that a search
warrant or authorisation cannot Explanation. - For the purposes of this
be obtained without affording section, the expression "public place"
opportunity for the concealment includes any public conveyance, hotel,
of evidence or facility for the shop, or other place intended for use
escape of an offender, he may by, or accessible to, the public.
enter and search such building,
conveyance or enclosed place at
any time between sunset and
sunrise after recording the
grounds of his belief.
18. A Constitution Bench of Hon'ble Supreme Court in State of Punjab vs.
Baldev Singh 1999(3) RCR(Crl) 533, while comparing provisions of Section
42 with those of Section 43 of the Act held as under:
"9. The proviso to sub-section (1) lays down that if the empowered
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.
Vide sub-section (2) of Section 42, the empowered officer who takes
down information in writing or records the grounds of his belief under
the proviso to sub-section (1) shall forthwith send a copy of the same to
his immediate official superior. Section 43 deals with the power of
seizure and arrest of the suspect in a public place. The material
difference between the provisions of Section 43 and Section 42 is that
whereas Section 42 requires recording of reasons for belief and for
taking down of information received in writing with regard to the
commission of an offence before conducting search and seizure, Section
Page N: 7 of 12 Pages
7 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
43 does not contain any such provision and as such while acting
under Section 43 of the Act, the empowered officer has the power of
seizure of the article etc. and arrest of a person who is found to be in
possession of any Narcotic Drug or Psychotropic Substances in a public
place where such possession appears to him to be unlawful."
19. Another material distinction between search of a building, conveyance or
enclosed place conducted under provisions of Section 42 of the Act and a
search of a vehicle in 'transit' in terms of Section 43 of the Act is that in case
of a search of vehicle in transit there is no requirement of obtaining any
search warrant even if search is conducted after sunset by a non-gazetted
officer unlike a case of search of a building, conveyance or an enclosed
place. Boota Singh's case (Supra) has only interpreted the word 'public place'
as existing in Section 43 of the Act and not the word 'transit' which is used
alternatively with word public place as 'public place or transit'. As already
stated above in Boota Singh's case, vehicle was 'parked' and contraband was
being sold and vehicle was not on the move i.e., not in transit. The distinction
between the word 'conveyance' as existing in Section 42 of the Act and
conveyance in 'transit' as existing in Section 43 of the Act has been well
highlighted in Dharminder Kumar's case.
20. In Dharminder Kumar's case (supra), it was pursuant to receipt of secret
information by the police to the effect that huge quantity of 'poppy husk' was
being brought by the accused in a truck from village Karimpur that the police
intercepted the truck in question from which 30 bags of 'poppy husk' were
recovered. In the said case also, an argument had been raised that there has
been violation of Section 42 of the Act inasmuch as neither the information had
been conveyed to the superior officers as contemplated by Section 42(2) of the
Act, nor any reasons as regards belief of commission of an offence had been
recorded by the ASI. The Division Bench of this Court in Dharminder Kumar's
case(supra), while referring to judgment of Constitution Bench of Hon'ble
Supreme Court in Baldev Singh's case(supra) and some other judgments
discussed the scope of Section 42 and Section 43 of the Act and held as
follows :-
"9. Powers of entry, search and seizure are contained in Chapter V of
the Act. The scheme of the Act contemplates two categories of situation
Page N: 8 of 12 Pages
8 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
i.e., where the contrabands are found in "any building, conveyance or
enclosed place" and "any public place or in transit". For the first
contingency, Section 42 of the Act is applicable whereas if any seizure is
required to be made from any public place, then it is Section 43 of the
Act which would be applicable. Section 42 of the Act requires writing
down of information if empowered officials have reason to believe from
personal knowledge or information that any illegal acquired property is
kept or concealed in a building, conveyance or enclosed
place. .... ..... ......
10. While Section 42 empowers the officers of the specified departments
to carry out search, seizure and arrest in any building, conveyance or
enclosed place, Section 43 deals with the similar power of seizure and
arrest in public places. Powers under both these sections can be
exercised if the concerned officer has reason to believe that some
offence relating to narcotic drugs or psychotropic substances has been
committed. Section 49 is another section in the series which empowers
officers to stop and search animals and conveyance used for illegal
transport of narcotic drugs or psychotropic substances. The words
building, conveyance and enclosed place as used in Section 42 have
been used for the specific purpose of protecting the persons who are
living in the buildings, conveyance and enclosed place. The Legislature
in its wisdom considered proper to draw a demarcating line between
building, conveyance and enclosed place on one side and public place
or in transit on the other side. The words have been specifically
mentioned to show the demarcating line between the two otherwise, the
legislature could have used any place instead of narrating the words
'building, conveyance or enclosed place. Even a private open place does
not falI within the purview of Section 42 unless it is enclosed. So, this
demarcating line will have to be kept in mind. Under Section 43 of the
Act, the words used are 'any public place or in transit'. The requirement
of recording of information in writing and communicating it to superiors
is intended to protect the possible harassment to residents and to
maintain personal liberty and human dignity. The term conveyance used
in Section 42 is to be understood as ejusdum generis to the terms
Page N: 9 of 12 Pages
9 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
building or enclosed place. It is not every conveyance whether in public
or private that would fall within the scope of Section 42 of the Act. A
conveyance in a public place would fall within Section 43 of the Act and
Section 49 gives power to the empowered officer to stop such
conveyance for the purpose of search.
11. x xx x
12. x x x
13. x x x
14. x x x
15. x x x
16. Thus, it is evident that if seizure is made from any animal,
Conveyance or article in a public place or in transit then Section 43 of
the Act would be applicable. Section 43 and Section 42 of the Act
operate in different spheres. Since the conveyance has been specifically
included in Section 43 of the Act also, therefore, the conveyance which
is found in a public place or in transit would be covered under the
provision of Section 43 the Act whereas conveyance used in Section 42
of the Act has to be read as conveyance which is other than in a public
place. This interpretation is the only harmonious interpretation of
Sections 42 and 43 of the Act.
17. It is well settled principle of law that the provisions of a statute are
to be construed in a harmonious manner so that each of the provisions
are rendered not nugatory. By harmoniously construing Sections 42
and 43 of the Act, it can be safely concluded that if a conveyance is
intercepted or apprehended at a public place or in transit then the
provisions of Section 42 of the Act would not be applicable."
9. Thus, the legal position as explained above would make it vivid
that when the seizure is made from any animal, conveyance or article in a public
place or in transit, then Section 43 of the Act would be applicable. The word
Page N: 10 of 12 Pages
10 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
'conveyance' used in Section 42 of the Act has to be read as 'conveyance other
than in public use'. As word 'conveyance' is also included in Section 43 of the
Act, therefore, the conveyance found in a public place or in transit would be
covered under Section 43 of the Act, though the conveyance used in Section 42
of the Act is to be read as conveyance which is other than in public place.
10. In the present case, since the recovery has been effected from the
conveyance in transit, therefore, Section 42 has prima facie no applicability and
rather, it is Section 43 of the Act, which is applicable. As such, petitioner cannot
be granted any advantage of the fact that compliance of Section 42 of the Act
was not made. As such, Karnail Singh's case, which has been followed by this
Court in Pankaj's case and Gurjant's case have no applicability to the facts of
this case.
11. Coming to the compliance of Section 50 of the Act, although as per
the prosecution allegations, offer was made by SI Ram Bhajan to be searched
by him or in the presence of Gazetted Officer or Magistrate but the petitioner
and co-accused opted to be searched in the presence of Gazetted Officer and
then, search was effected in the presence of DSP i.e., Gazetted Officer. In
Parmanand's case relied by counsel for the petitioner, the Investigating Officer
informed the accused that they could be searched before nearest Magistrate or
before nearest Gazetted Officer or before the Officer, who was part of a raiding
party and the accused opted to be searched before the Officer, who was Member
of the raiding party. It was in these circumstances that search was held to be
vitiated and in breach of Section 50 of NDPS Act and so, conviction was set
aside.
Page N: 11 of 12 Pages
11 of 12
Neutral Citation No:=2023:PHHC:140637
2023:PHHC:140637
CRM-M-41618-2023
12. Thus, breach of Section 50 of the NDPS Act was found after full-
fledged trial. In this case, as has been noticed above that search was conducted,
as per the consent of the petitioner, in the presence of the Gazetted Officer and
so, at this stage, it cannot be stated that there is non-compliance of Section 50 of
the NDPS Act.
13. The recovered quantity of contraband from the petitioner falls in
the commercial category. Petitioner has no clean criminal antecedents, as he is
involved in one more case pertaining to NDPS Act as per the custody certificate
and as admitted by the petitioner himself in Para No.9 of the petition. Therefore,
the parameters laid down in Section 37 of the NDPS Act for grant of bail are
also not fulfilled.
14. Having regard to the aforesaid discussion but without commenting
anything further on the merits of the case, this Court is not inclined to grant bail
to the petitioner.
Dismissed.
(DEEPAK GUPTA)
November 06, 2023 JUDGE
Neetika Tuteja
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
Page N: 12 of 12 Pages
Neutral Citation No:=2023:PHHC:140637
12 of 12
