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TaxTMI 
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TaxTMI 
2021 (1) TMI 706
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....with other police officials was present near bridge on Canal Thamman Singh Wala, in connection with patrolling and checking of suspicious persons, then he received secret information at about 5 P.M. to the effect that Sanju Singh and Pushpinder Singh (petitioner) indulged in sale of intoxicants and that they were proceeding towards Sangrur in a white coloured 'Swift' car bearing registration no. PB-13-W-2820 while carrying a large quantity of intoxicating tablets. The information was further to the effect that in case barricading is laid, the aforesaid persons could be caught red-handed. 3. ASI Walaiti Ram immediately sent the aforesaid information to SHO, Police Station, Bhawanigarh, on the basis of which the instant FIR came to be lodged....
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...."ruqa" was sent to SHO before ASI Walaiti Ram proceeded to lay barricading and before the car was intercepted, the same would duly satisfy the requirements of Section 42 of the Act pertaining to taking down the information in writing and conveying the same to superior officer. The learned State counsel, while pressing into service a judgement of Constitution Bench of Hon'ble Supreme Court in a case reported as 2009(8) SCC 539 Karnail Singh vs. State of Haryana has submitted that non-compliance of Section 42 of the Act, if any, would not ipso-facto vitiate the trial if no prejudice had been caused to the accused. 6. The learned State counsel has further submitted that in any case Section 42 of the Act would not have any application as it is....
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....trol, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or conceale....
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....nset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." "43. Power of seizure and arrest in public places. - Any officer of any of the departments mentioned in section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, alongwith such drug or substance, any animal or conveyance or article liable to confiscation under this Act,....
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....of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 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." 9. In State of Haryana v. Jarnail Singh and others, 2004(5) SCC 188, the Hon'ble Supreme Court held as follows : "Section 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Secti....
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.... non-compliance of Section 42 of the Act is not fatal to the prosecution." 11. Bearing in mind the ratio of the above referred judgements and the fact that it is a case of recovery of contraband from a vehicle while in transit, it would be Section 43 of the Act which would be applicable in the matter of procedure and not Section 42 of the Act. 12. Even if it is taken that provisions of Section were to apply, still it is a case where secret information had been duly conveyed to the superior officer i.e. the SHO, by the person receiving secret information namely ASI Walaiti Ram by way of sending a 'ruqa' stating factum of receipt of secret information, before the vehicle in question was intercepted and before recovery was effected, which wo....