STATE OF RAJASTHAN versus JAG RAJ SINGH @ HANSA

Citation: [2016] 4 S.C.R. 451 · Decided: 29-06-2016 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2016) 4 S.C.R. 451 
STATE OF RAJASTHAN 
v. 
JAG RAJ SINGH @ HANSA 
(Criminal Appeal No. 1233 of2006) 
JUNE29,2016 
[ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985 - ss. 
42(1), 42(2), 42(1) proviso and s.43 - Accused held on the basis of 
a secret information - Search and seizure - Recovery of bags 
containing opium powder fimn the jeep in which accused travelling 
- Conviction and sentence of accused under the provisions of the 
1985 Act - However, acquittal of accused by the High Court on the 
ground of non-compliance with the mandatory provisions of NDPS 
Act - On appeal held: Section 42(2) requires that where an officer 
takes down an information in writing under sub-Section (1) he shall 
send a copy thereof to his immediate officer senior - However, 
communication sent to Circle Officer was not as per the secret 
information recorded, thus, there was breach of s. 42(2) - s. 42(1) 
proviso provides that (f such officer has reason to believe, he may 
carry the search after recording the grounds of belief, whereas no 
ground for belief as contemplated by proviso was ever recorded by 
Station House Officer who proceeded to carry on search, thus, 
violates the provisions of s. 42(2) proviso - Furthe1; there was no 
permit for running the jeep as pziblic tra11sport vehicle - Jeep 
cannot be said to be a public co11veya11ce within the meaning of 
Explanation to s. 43, thus, s. 43 clearly not attracted and provisions 
of s. 42(1) pro·.>iso were to be complied with - Station House Officer 
did not ;uddenly carry out search at a public place - When search 
is conducted afier recording information uls. 42(1), provisions of s. 
42 was to be complied with - Thus, non-compliance of s. 42(1) 
proviso ands. 42(2) seriously prejudiced the accused - High Court 
rightly held that non-compliance of s.42(1) and s.42(2) were proved 
on the record and was justified in setting aside the conviction order. 
Dismissing the appeal, the Court 
HELD: 1.1 The breach of Section 42 of the Narcotic Drugs 
A 
B 
c 
D 
E 
F 
G 
and Psychotropic Substances Act, 1985 has been found in two 
H 
451 
452 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
parts. The first part is that there is difference between the secret 
information recorded in Exh. P-14 and Exh. P-21 and the 
information sent to Circle Officer, by Exh. P-15. What Section 
42(2) requires is that where an officer takes down an information 
in writing under sub-Section (1) he shall sent a copy thereof to 
his immediate officer senior. The communication Exh. P-15 which 
was sent to Circle Officer was not as per the information recorded 
in Exh. P 14 and Exh. P 24. Thus, no error was committed by the 
High Court in coming to the conclusion that there was breach of 
Section 42(2). [Paras 12, 13] (461-E, H; 462-A-B] 
1.2 Section 42 (1) indicates that any authorised officer can 
carry out search between sun rise and sun set without warrant or 
authorisation. The scheme indicates that in event the search has 
to be made between sun set and sun rise, the warrant would be 
necessary unless officer has reasons to believe that a search 
warrant or authorisatio1I cannot be obtained without affording the 
opportunity for escape of offender which grounds of his belief 
has to be recorded. In the instant case, there is no case that any 
ground for belief as contemplated by proviso to sub-section (1) 
of Section 42 or Sub-section (2) of Section 42 was ever recorded 
by Station House Officer who proceeded to carry on search. Station 
House Officer has appeared as PD-11 and in his statement also 
he has not come with any case that as required by the proviso to 
Sub-section (1), he recorded his grounds of belief anywhere. [Para 
14] (462-C-D] 
1.3 Explanation to Section 43 defines expression "public 
place" which includes any public conveyance. The word "public 
conveyance;' as used in the Act has to be understood as a 
conveyance which can be used by public in general. The Motor 
Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988 
were enacted to regulate the law relating to motor vehicles. The 
vehicles which can be used for public are public Motor Vehicles 
for which necessary permits have to be obtained. Without 
obtaining a permit in accordance with the Motor Vehicles Act, 
1988, no vehicle can be used for transporting passengers. In the 
instant case, it is not the case of the prosecution that the jeep 
had any permit fo

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