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Accused acquitted for non-compliance of procedure by police

In BOOTA SINGH & OTHERS vs STATE OF HARYANA, the police had acting on secret information, arrested the accused with contraband while they were sitting in their car on a public road and they were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) by the trial court which rejected the question of applicability of Section 42 of the NDPS Act raised by the accused. According to the trial court, the said question 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 road in a jeep at a public place. Therefore, 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.

On appeal the High Court agreed with the trail court stating 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 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.

The Supreme Court on appeal agreed with the accused and referring to Karnail Singh v. State of Haryana, followed in subsequent decisions in Sukhdev Singh v. State of Haryana, and, State of Rajasthan v. Jagraj Singh alias Hansa, held 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. 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  of the NDPS Act shows that a private vehicle would not come within the expression “public place”. On the strength of 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 and under Section 42 various procedures were required to be observed and followed by the police before or at least soon after the arrest. It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act in this matter. The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa , 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 case, total non-compliance of Section 42 can be accepted. 

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