Section 42 NDPS Not Attracted to Search of Vehicle in Transit in Public Place: Supreme Court

On 20 February 1990 a Sub-Inspector on patrol duty received an informer's tip about the accused's possession of opium and organised a raiding party (para 2). The respondent's scooter, with a co-accused on the pillion, was stopped; after the ACP and the SHO arrived, 800 grams of opium was recovered from the co-accused and 700 grams from the scooter's dicky (para 2). The trial court convicted both under Section 17 and sentenced the respondent to ten years' rigorous imprisonment and a fine of Rs.1,00,000 (paras 1, 3). The Delhi High Court acquitted him because the secret information was neither reduced into writing nor sent to a higher officer, in breach of Section 42 (para 3).

The State contended that the officer received the information while on patrol, that the ACP joined the raid, and that Section 42 did not apply (para 4). The Court recalled T. Thomson, where it held there is "no statutory requirement that such a record should be produced in the court as a matter of course" when the accused made no motion to call for it (para 6). Here too "no effort was made by the accused to call for the records of information" (para 7). The real question was whether Section 42 applies where an officer on patrol duty stops a vehicle in transit in a public place and searches it (para 7). In Jarnail Singh the Court had explained that Section 42 covers entry into and search of a building, conveyance or enclosed place, while Section 43 covers seizure in a public place or in transit and has no proviso requiring the officer to record his grounds (para 8). On that position of law, the High Court's order was "clearly unsustainable" and Section 42 had no application (para 9).