2021 (4) TMI 703 - SC - Indian Laws

Supreme Court clarifies search and seizure rules under NDPS Act, stresses compliance with Section 42.

The Supreme Court held that the search and seizure conducted by the police should have been governed by Section 42, not Section 43 of the NDPS Act, as the ... Smuggling - poppy straw - requirement of search warrants for conducting raids - public conveyance or not - non-compliance of Section 42 of N.D.P.S. Act - 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 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa [2016 (7) TMI 44 - SUPREME COURT], the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. 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 1 but in no case, total non-compliance of Section 42 can be accepted. Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the search and seizure of contraband from a private vehicle parked on a public road falls within Section 43 (public place/transit) or Section 42 (search based on information) of the NDPS Act. 2. Whether compliance with Section 42(1) and Section 42(2) - recording the information in writing and sending a copy to the immediate superior - is mandatory, and if non-compliance can be excused by delayed compliance or exigency. 3. The legal consequence of total non-compliance with Section 42: whether conviction under Section 15 of the NDPS Act can be sustained when Section 42 requirements are not met. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Applicability of Section 43 versus Section 42 where contraband was recovered from a private vehicle on a public road Legal framework: Section 43 defines 'public place' to include a conveyance and contemplates seizure in a public place or in transit. Section 42 permits search and seizure on receipt of information but prescribes procedural safeguards (recording information in writing and sending copy to superior) and contains a proviso limiting application where Section 43 applies. Precedent treatment: The Court considered prior authorities including a Constitution Bench decision interpreting the scope and required compliance with Section 42 and subsequent decisions applying that principle to factually similar situations where the nature of the vehicle (public transport or private) determined whether Section 43 obviated Section 42 compliance. Interpretation and reasoning: The Court examined the vehicle's character and documentary material (registration certificate) and found it to be a private vehicle belonging to the accused. The Explanation to Section 43 was read to mean that a private vehicle does not ordinarily fall within the expression 'public place' as contemplated in Section 43. Because the vehicle was not a public transport vehicle nor otherwise shown to be in the course of public conveyance or transit such that Section 43 would apply, the search had to be governed by Section 42. Ratio vs. Obiter: Ratio - where contraband is recovered from a private vehicle not constituting a public conveyance, the protections of Section 42 apply and Section 43 does not excuse compliance. Obiter - general observations about the Explanation to Section 43 only to the extent they illuminate the ratio above. Conclusion: The facts fall under Section 42, not Section 43; therefore the procedural requirements of Section 42 were applicable to the search and seizure in this case. Issue 2 - Mandatory nature of Section 42(1) and Section 42(2) requirements and the scope for delayed compliance Legal framework: Section 42(1) requires the officer receiving information to record it in writing and permits specified actions thereafter; Section 42(2) requires sending a copy of the record to the immediate superior. A proviso and later judicial interpretation allow for exigent departures in emergencies but prescribes that total non-compliance is impermissible. Precedent treatment (followed/distinguished): The Court followed the Constitution Bench articulation that (a) the norm is contemporaneous recording and prompt communication to the superior, (b) in emergent situations delayed recording and communication may be acceptable if reasonably explained, and (c) total non-compliance cannot be validated. Earlier decisions that allowed practical flexibility were read as permitting delayed but explained compliance, not wholesale non-compliance. Interpretation and reasoning: Applying the precedent, the Court observed that the investigating officer admitted he did not record the secret information in writing, had a non-functional wireless, did not obtain search warrants for night search, and recorded matters in the jeep. There was no contemporaneous written recording or any satisfactory explanation for delayed compliance that would meet the standard set by the Constitution Bench. The Court stressed that the allowance for delayed compliance is fact-sensitive and contingent on a satisfactory explanation of urgency or necessity; it does not permit total non-compliance. Ratio vs. Obiter: Ratio - delayed compliance with Section 42 may be acceptable only where there is a satisfactory explanation (urgency, risk of removal/destruction, or risk of escape) and the delay is reasonable; but total non-compliance is impermissible. Obiter - factual remarks about the state of the wireless or other operational details insofar as they demonstrate absence of reasoned, recorded urgency. Conclusion: There was total non-compliance with Sections 42(1) and 42(2) on the record, and no satisfactory explanation was proved to justify delayed compliance; therefore Section 42's mandatory safeguards were not met. Issue 3 - Consequence of total non-compliance with Section 42 on conviction under Section 15 NDPS Act Legal framework: Section 15 prescribes punishment for certain NDPS offences; admissibility and legality of search and seizure under Sections 42/43 affect the validity of recoveries and thus sustainment of conviction. The Constitution Bench and subsequent precedent established that total non-compliance with Section 42 renders the search/seizure vitiated, with attendant consequences for conviction unless saved by compliance with Section 43 or acceptable delayed compliance. Precedent treatment: The Court relied on the binding formulation that total non-compliance with Section 42 cannot be excused (as per the cited Constitution Bench and followed decisions), and that where Section 43 does not apply and Section 42 is violated, conviction based on the tainted recovery cannot stand. Interpretation and reasoning: Given (a) the vehicle was private (so Section 43 did not apply), (b) there was admitted total non-compliance with Section 42, and (c) no satisfactory explanation for delayed compliance was shown, the Court found the recoveries could not be lawfully sustained as the product of a valid Section 42 procedure. The Court therefore concluded that convictions under Section 15, which rested on those recoveries, could not be upheld. Ratio vs. Obiter: Ratio - where Section 43 is inapplicable, total non-compliance with Sections 42(1) and (2) invalidates the search/seizure and requires acquittal on charges predicated on such recovery; acceptable delayed compliance is limited and fact-dependent. Obiter - procedural remarks about ancillary noncompliances (e.g., absence of search warrant at night) as further evidence of non-satisfaction of statutory safeguards. Conclusion: Total non-compliance with Section 42 being established and Section 43 not attracted, the convictions founded on the challenged recoveries were set aside and the accused were acquitted; custody ordered to cease unless required for other offences.