Summary
The Supreme Court upheld the appellant’s conviction and sentence for possession of charas. The roadside interception was governed by Section 43 NDPS Act, so Section 42’s recording requirements did not apply. Section 50 was attracted because both the bag and the appellant’s person were searched, although contraband was found only in the bag. Strict compliance was established by informing him of his legal right and conducting the search before the gazetted officer he chose.
Issues
- Whether Section 42 recording requirements applied to the roadside seizure in a public place.
- Whether Section 50 applied where a bag and the person were both searched, and whether its mandatory safeguards were satisfied.
Provisions considered
- Sections 42 and 43, Narcotic Drugs and Psychotropic Substances Act, 1985The interception on a publicly accessible road fell under Section 43, rather than the building, conveyance or enclosed-place framework of Section 42. (¶ 5–9)
- Section 50(1), Narcotic Drugs and Psychotropic Substances Act, 1985A personal search attracted the mandatory safeguard even though contraband was recovered only from the accompanying bag. Informing the appellant of his legal right and searching before his chosen gazetted officer constituted strict compliance. (¶ 10–12)
Held
- Section 43 governs seizure and arrest in a public place. The appellant was intercepted while walking on a publicly accessible road, rather than in a building, conveyance or enclosed place. Section 42 and its information-recording requirements did not apply. Cases involving private vehicles or an occupied hotel room were distinguishable. (¶ 5–9)
- Section 50 requires strict compliance, rather than substantial compliance, when a person is searched. A bag-only search is distinguishable; when both bag and person are searched, the safeguard applies irrespective of whether contraband is recovered from the person. The trouser-pocket search here attracted it. (¶ 10–11)
- The records established that the appellant was informed of his legal right to a search before a magistrate or gazetted officer and chose the latter. That choice was reiterated when the gazetted officer arrived, and the search occurred in his presence. The requirements were strictly complied with. (¶ 11–12)
- Offering the appellant an opportunity to search the searching officer first did not create an impermissible third alternative to the statutory choice. This differed from offering a member of the raiding team as an alternative search authority in Parmanand. No separate determination of Namdi’s applicability was needed. (¶ 11–12)
Result
Criminal appeal dismissed; conviction and sentence of 14 years’ rigorous imprisonment and fine of Rs 1,40,000 undisturbed.