Supreme Court: The bench of Abhay Manohar Sapre and Ashok Bhushan JJ., upheld the decision of the Rajasthan High Court where the accused were acquitted of the charges under Narcotic Drugs Psychotropic Substances Act, 1985 for non-compliance of Section 42 of the NDPS Act.
In the instant matter, a jeep with the accused as passengers had been apprehended by the SHO carrying opium powder for which the accused had no license. They were subsequently charged under Sections 8/15 of the NDPS Act. The Session Judge, convicting the two accused, had found that the SHO had complied with S. 42 in reporting the information and also that the jeep was a ‘public place’ under S. 43 of the Act and therefore there had been no need for warrant or authority for search. The High Court, however, found inconsistency in the records of information and the absence of sufficient ground authorizing the search, which added to non-compliance with the mandatory provisions of S. 42(1) and S. 42(2) of the NDPS Act. Further, it was observed that the jeep could not be treated as a public transmit vehicle and hence S. 43 of the NDPS Act was not applicable. Hence, the conviction was held improper and the order of Sessions Judge was set aside.
The bench while deciding the appeal, relied on several judgments of the Supreme Court explaining Sections 42 and 50 of the NDPS Act, said that 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. It was further said that 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 authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. The Court, hence, found that the view held by the High Court in the matter was in conformity with the view held by the Supreme Court as the High Court had given sufficient reason and grounds for setting aside the conviction, and that it found no error or infirmity to interfere in the appeal. [State of Rajasthan v. Jag Raj Singh, 2016 SCC OnLine SC 619, decided on 29.06.2016.]