Private Vehicle Would Not Come Within Expression “Public Place” Under S. 43 of NDPS Act, 1985: Supreme Court [ READ JUDGEMENT]

The Supreme Court Bench of Justice UU Lalit & Justice KM Joseph has recently observed that explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The Bench in the present matter was hearing an appeal against the judgement & order dated March 3, 2020 passed by the High Court of Punjab & Haryana at Chandigarh vide which it dismissed the criminal appeal preferred by the appellants and affirmed their conviction & sentence u/s 15 of NDPS Act.

Factual Matrix

SI Nand Lal on 28.01.2002 along with fellow police officials received a secret information that the accused(s) were selling poppy straw in a vehicle bearing registration number GUD-4997 on a ‘kacha path’ at Rori-Jatana road & could be apprehended upon conducting a raid. Thereafter, a raid was conducted & accused(s) were found sitting in the jeep bearing registration number GUD-4997 & an FIR was registered thereof.

The Trial Court after considering the evidence on record, by its judgment and order dated 12.08.2004, acquitted accused Major Singh but convicted accused Boota Singh, Gurdeep Singh and Gurmohinder Singh, under Section 15 of the NDPS Act and sentenced them to suffer rigorous imprisonment for 10 years with imposition of fine in the sum of Rs.1,00,000/-, in default whereof they were directed to undergo further rigorous imprisonment for a period of two years. On the applicability of Section 42 of the NDPS Act, the Court observed that,

“... Learned counsel sought acquittal of accused due to non- compliance of Section 42 of N.D.P.S. Act. However, the above said argument could help the accused if recovery had been effected from the house, building etc. of the accused. Admittedly, recovery in question was effected from the accused while they were sitting on the road in a jeep at a public place. Therefore, the case of accused would be covered by Section 43 of N.D.P.S. Act and not by Section 42 of N.D.P.S. Act. Under these circumstances, the argument of learned counsel for the accused is overruled.”

The appellant thereafter approached the High Court & the Court vide order dated March 3, 2020 dismissed the appeal & on the applicability of section 42 of the NDPS Act observed that, “Furthermore, in the case in hand, 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 explanation to Section 43 of the Act, the public place includes a conveyance also. Section 43 of the Act contemplates a seizure made in a public place or in transit. As such, Section 42 of the Act is not applicable to the facts of the present case.”

Thereafter the accused(s)/ appellants approached this Court challenging the correctness of the order passed by Lower Court(s).

The Bench placed reliance on the Apex Court judgement in Karnail Singh v. State of Haryana (2009) 8 SCC 539 & State of Rajasthan v. Jagraj Singh alias Hansa (2016) 11 SCC 687 & observed that the Court in Jagraj Singh alias Hansa observed that the relevant provision would not be Section 43 of the NDPS Act & that the case would come under Section 42 of the NDPS Act.

In this context, the Bench further remarked that,

“It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act. 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 case, total non-compliance of Section 42 can be accepted.”

The Court thereafter after observing that the evidence in the present case clearly showed that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh & even the Registration Certificate of the vehicle, placed on record also did not indicate it to be a Public Transport Vehicle, allowed the appeal, set-aside the view taken by the High Court and acquitted the appellants of the charge levelled against them.

Case Title: Boota Singh & Ors v. State of Haryana| Criminal Appeal No.421 Of 2021

Penned By/ Delivered By: Justice UU Lalit