Sec 42 of NDPS Act doesn’t apply to ‘in transit’ private vehicle: Gauhati High Court

 Staff Reporter

Guwahati: The Gauhati High Court (HC) denied bail to an accused while holding that conditions under Section 42 of the NDPS Act concerning ‘recording reasons for belief’ and ‘taking down of information received in writing’ do not apply to the search of a private vehicle ‘in transit’. Instead, it attracted provisions of Section 43 of the NDPS Act, the HC observed.

The HC made this observation in a bail application by incarcerated accused Mayank Sharma, who was intercepted driving a truck from which contraband in commercial quantity was recovered. The contraband comprised 353 packets containing 35,300 bottles of Phensedyl Cough Syrup, with codeine phosphate, weighing 4,271.3 kg without bottle.

The court instead held that such a case may fall under Section 43 of the Act, which stipulates the procedure for seizure.

Conditions of Section 42 of the NDPS Act concerns power of entry, search, seizure, and arrest without warrant. Section 43 of the NDPS Act relates to the power of seizure and arrest in public places. Section 43 does not require a warrant or authorization when a seizure or arrest is done in an open place.
Justice Robin Phukan, who was hearing the bail application (Case No.: Bail Appln./269/2024), clarified that though a private vehicle cannot be considered a ‘public place’, Section 43 does apply to vehicles in transit.

As such, recording reasons for belief and taking down information received in writing with regards to the commission of an offence before conducting a search and seizure, is not required to be complied with under Section 43 of the NDPS Act, the Court added. However, the HC further said that the trial court will not be influenced by the observations made by it.

The counsel appearing for the accused contended that the search and seizure were made in contravention of the provisions of Sections 42 and 50 of the NDPS Act, and the accused is entitled to benefit from the same even at the stage of bail.

The counsel of the accused relied on the Supreme Court case of ‘Boota Singh & Ors. vs. State of Haryana’ (2021), where the apex court held that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. The argument was that there was total non-compliance with Section 42 of the NDPS Act, and although the informant could not comply with Section 42 of the Act at the time of intercepting the vehicle, he could have complied the same thereafter, but nothing has been done by him.

 On the other hand, the additional public prosecutor, on behalf of the state, submitted that the vehicle in question was intercepted during Naka Checking and there was no prior information, and as such, non-compliance with Section 42 was not totally relevant as the informant had given sufficient reason for such non-compliance. He further submitted that the quantities of the contraband substances recovered from the possession of the accused persons are of commercial quantity. As such, the accused has to satisfy the twin conditions of Section 37 of the Act, and the accused has failed to satisfy the same, it was contended.

The HC was not satisfied that there exists any reasonable ground for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. Accordingly, the court dismissed the bail plea.

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