While hearing an appeal against the order of conviction under section 15 of the NDPS Act, the Supreme Court held that during investigation total non-compliance of the procedure under section 42 NDPS Act cannot be accepted. This judgment was passed in the case of Boota Singh & others vs. State of Haryana [Cr.A.No.421/2021], by a Double Bench consisting of Hon’ble Justice Uday Umesh Lalit and Hon’ble Justice K.M. Joseph.

The present appeal was preferred against the judgment passed by the High court affirming the conviction and sentence under section 15 of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution’s case is that officials were present at a certain road when they received information that the accused was selling poppy straw in a vehicle. A raid was conducted and, the accused was found to be sitting there at the jeep, the appellants were apprehended at the spot and were found to be sitting on 2 bags kept in keep. Notices under section 50 of the act were served and FIR was registered. The trial court with evidence on record acquitted one of the accused and convicted the appellants under section 15 of the NDPS Act with rigorous imprisonment for 10 years and a fine of Rs.1,00,000/- which in default would have to undergo 2 more years of imprisonment. On the applicability of section 42 of the NDPS Act, the court held that since the recovery happened while the appellants were sitting in a public place, the case falls under section 43 of the NDPS Act and not section 42.

The appellants aggrieved by the order of trial Court preferred an appeal in the High Court, where while upholding the decision of the Trial Court it was held public place includes conveyance also and thus section 42 would not apply. The appellant, therefore, preferred an appeal before the Supreme Court.

The Supreme court after hearing both the parties to the proceedings relied on few supreme court judgments tp arrive at its decision. In the case of Karnail Singh vs. State of Haryana, where the police officer does not record the information and does not inform the official superior, even after delay then also it will be a clear violation of Section 42 of the NDPS Act. The court after referring to the decisions observed that the vehicle was not a public conveyance and the Registration Certificate of the vehicle does not indicate it to be a Public Transport Vehicle. Under the explanation of section 43, the private vehicles would not fall under the category of Public vehicles.

The Supreme court observed that there was total non-compliance of the requirements of Section 42 of the NDPS Act. Based on the judgment of Karnail Singh vs. State of Haryana and State of Rajasthan v. Jagraj Singh alias Hansa, the Court held that total non-compliance of section 42 is unacceptable in any circumstance.

The Supreme court concluded by holding, “the courts below fell in error in rejecting the submissions advanced on behalf of the appellants. We, therefore, allow this appeal, set-aside the view taken by the High Court and acquit the appellants of the charge levelled against them.”

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