Recently an order passed by the Delhi High Court did its rounds in social media for construing ones private vehicle a public place thereby observing that wearing of a facemask was compulsory even while driving alone in a personal car. The Court held that that a private vehicle will amount to a public place in the context of COVID-19 pandemic regulation. However, referring to precedents, the Court also observed that the meaning of the term 'public place' varies from statute to statute and context to context.
Coming to the context of a private vehicle under the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as “NDPS Act”) the Hon’ble Apex Court recently in Boota Singh Versus State Of Haryana, Criminal Appeal No. 421 of 2021, observed that the explanation to Section 43 of the NDPS Act shows that a private vehicle would not come within the expression “public place”. The Appeal was filed challenging the High Court of Punjab & Haryana’s judgement of affirming the Appellants’ conviction under Section 15 of the NDPS Act, for possessing and selling poppy straw.
The prosecution’s case was that on 28.01.2002, police officials were present at the canal bridge on Surtia-Rori road, where one of them received a secret information to the effect that the accused are selling poppy straw in a vehicle bearing registration number GUD-4997 on a ‘kacha path’ at Rori-Jatana road and they can be apprehended if raid is conducted. Accordingly, a raid was conducted and the accused were found sitting in the jeep bearing registration number GUD-4997 at the aforesaid place. Major Singh, co-accused of the appellants, managed to slip away, whereas, the appellants were apprehend at the spot. They were found sitting upon two bags kept in the said jeep. The search of the bags led to the recovery of poppy straw. One bag was containing 39 kg of poppy straw and the second bag was containing 36 kg of poppy straw. Two samples weighing 100 grams each were separated from each bag. The sample parcels and the bulk parcels were converted into separate parcels and sealed with the seal bearing impression 'CS'. The jeep alongwith weighing scale, two weights of 500 grams each were also recovered and taken into possession vide recovery memos.
In the cross examination of the investigating officer, it was brought on record that he did not record the secret information in writing. The wireless in his jeep was out of order at that time. He did not obtain any search warrants for conducting the search of the jeep of accused during night hours. He did not record in writing any ground for not obtaining the requisite search warrants. The writing work was done while sitting in the jeep.
The Trial Court convicted the Appellants and sentenced them to suffer rigorous imprisonment for 10 years with imposition of fine in the sum of Rs.1,00,000/-, in default whereof they were directed to undergo further rigorous imprisonment for a period of two years. On the question of non-compliance under Section 42 of the NDPS Act, that requires the officer to record the secret information and reason for non-issuance of a search warrant in writing and thereafter within seventy-two hours forward a copy thereof to his immediate official superior, the Trial Court stated that recovery in question was effected from the accused while they were sitting in a jeep on a road at a public place and therefore, the case of accused would be covered by Section 43 of the NDPS Act which does away with the mandate of recording anything in writing and not by Section 42 of the NDPS Act.
The High Court also observed that the accused were present in a jeep on a public path and in such circumstance, the provisions of Section 43 of the NDPS Act comes into play. The High Court further went on to observe that as per explanation of Section 43 of the NDPS Act, a public place includes a conveyance and contemplates a seizure made in a public place or in transit.
As per Section 42 of the NDPS Act, the officer on receiving information from any person of a commission of an offence under the NDPS Act has to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before entering, searching, seizing or arresting a person.
If the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take enter, search, seize or arrest a person and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
Thus, it is mandatory to comply with the requirement of writing down the information received and sending a copy thereof to the superior officer within a reasonable period if it is after the search, entry and seizure. Total non-compliance is impermissible, however, delayed compliance with with satisfactory explanation about the delay will be acceptable compliance of Section 42 of the NDPS Act.
The Hon’ble Apex Court observed that the vehicle was not a public conveyance but was a vehicle belonging to the accused as the Registration Certificate of the vehicle, which had been placed on record does not indicate it to be a Public Transport Vehicle. Moreover, the explanation to Section 43 of the NDPS Act shows that a private vehicle would not come within the expression “public place” and therefore the relevant provision in the present case would not be Section 43 of the NDPS Act but would be Section 42 of the NDPS Act. Due to the total non-compliance of the aforesaid requirements of Section 42 of the NDPS Act being impermissible, the Hon’ble Apex Court acquitted the appellants.
By - Lakshmi Raman