Sewa Singh v. State Of Punjab
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* $&0 1 % # > % % 6 $"Karnail Singh v. State of Haryana (SC) 2009(5) R.C.R.(Criminal) 515<Boota Singh v. State of Haryana (SC): Law Finder Doc Id # 1831542<Gurjant Singh v. State of Punjab, (Punjab And Haryana): Law Finder Doc Id # 2004148; Pankaj v. State of Punjab (P&H): Law Finder Doc Id # 2013404
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$$ "16. Upon perusal of the above cited Boota Singh's case (supra), this Court finds that the factual position was distinct on some material aspects which determine as to whether Section 42 of the Act would apply or as to Section 43 of the Act would get attracted. The said distinctions are stated herein) under:
Boota Singh's case Present case In Boota Singh's case, secret In the present case, secret information information had been received to was received to the effect that Ranjit the effect that the accused are Singh, Harjit Singh and Mandeep Kaur selling 'poppy straw from a are proceeding in a car for the purpose vehicle on a katcha path and of supplying heroin and could be they could be apprehended in caught red) handed. Purusant to case raid is conducted.
information, the police was able to Accordingly, raid was conducted intercept the said car and three persons and while two persons were sitting in car were detained by found sitting on the bags kept in Inspector Vikrant Sharma. Later when a Jeep, another managed to DSP reached at spot, their search was escape. It however, needs to be effected leading to the recovery of noticed that in the cited case, the heroin from each of them from personal vehicle in question was found search. In other words, the contraband 'parked on an un)metalled path.
was in process of 'transit' unlike in Search of two bags led to the Boota Singh's case where the accused recovery of poppy straw.
were selling from a 'parked' jeep.
Search was conducted by Officer While Inspector Vikrant had detained of the rank of Inspector.
the accused, the search was conducted only after Gazetted Officer of the rank of DSP came at the spot.
17. Though, the distinctions are rather fine distinctions but the same would have entirely different ramifications. In Boota Singh's case, the accused were selling poppy straw from a jeep 'parked' on an unmettaled path, whereas in the present case the vehicle was on the move i.e., the contraband was in 'transit'. -,0
Another distinction, as noticed above is that while in Boota Singh's case, the search was conducted by an officer of the rank of Inspector, who while drawing powers under Section 42 of the Act, would have some limitations as regards timing of search and would be required to observe some checks in the shape of taking down secret information in writing and conveying to superiors, but in the present case the Inspector had merely 'detained' the car in transit in which accused were travelling and search was conducted when DSP, i.e. a Gazetted Officer came at the spot and in which case the search would be in exercise of powers conferred by Section 43 of the Act wherein the limitations as are there in Section 42 of the Act do not apply. Section 41(2) of the Act would also come into play as search being in presence of gazetted officer, the restrictions as regards timing of search or intimation to superiors as imposed by Section 42 of the Act would not be there. The relevant provisions of Sections 42 and 43 of the Act are juxtaposed below:
Section 42 Section 43 % # = %= $ % % $
Any such officer (being an officer Any officer of any of the departments superior in rank to a peon, sepoy mentioned in section 42 may) or constable) of the departments of central excise, narcotics, or (a) seize in any public place or in any other department....... if he transit, any narcotic drug or has reason to believe from psychotropic substance .... ..... ....... personal knowledge or along with such drug or substance, any information given by any person animal or conveyance .... ...... ....
and taken down in writing that any narcotic drug, or (b) detain and search any person whom psychotropic substance, is kept he has reason to believe to have or concealed in any building, committed an offence punishable under conveyance or enclosed place, this Act, and if such person has any may between sunrise and sunset, narcotic drug or psychotropic (a) enter into and search any substance or controlled substance in his @,0
such building, conveyance or possession and such possession place;
appears to him to be unlawful, arrest (b) .... .... .... .... .....
him and any other person in his Provided that if such officer has company.
reason to believe that a search warrant or authorisation cannot Explanation. ) For the purposes of this be obtained without affording section, the expression "public place"
opportunity for the concealment includes any public conveyance, hotel, of evidence or facility for the shop, or other place intended for use escape of an offender, he may by, or accessible to, the public.
enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
18. A Constitution Bench of Hon'ble Supreme Court in State of Punjab vs. Baldev Singh 1999(3) RCR(Crl) 533, while comparing provisions of Section 42 with those of Section 43 of the Act held as under: "9. The proviso to sub)section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief.
Vide sub)section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub)section (1) shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section ?
43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful."
19. Another material distinction between search of a building, conveyance or enclosed place conducted under provisions of Section 42 of the Act and a search of a vehicle in 'transit' in terms of Section 43 of the Act is that in case of a search of vehicle in transit there is no requirement of obtaining any search warrant even if search is conducted after sunset by a nonBgazetted officer unlike a case of search of a building, conveyance or an enclosed place. Boota Singh's case (Supra) has only interpreted the word 'public place' as existing in Section 43 of the Act and not the word 'transit' which is used alternatively with word public place as 'public place or transit'. As already stated above in Boota Singh's case, vehicle was 'parked' and contraband was being sold and vehicle was not on the move i.e., not in transit. The distinction between the word 'conveyance' as existing in Section 42 of the Act and conveyance in 'transit' as existing in Section 43 of the Act has been well highlighted in Dharminder Kumar's case.
20. In Dharminder Kumar's case (supra), it was pursuant to receipt of secret information by the police to the effect that huge quantity of 'poppy husk' was being brought by the accused in a truck from village Karimpur that the police intercepted the truck in question from which 30 bags of 'poppy husk' were recovered. In the said case also, an argument had been raised that there has been violation of Section 42 of the Act inasmuch as neither the information had been conveyed to the superior officers as contemplated by Section 42(2) of the Act, nor any reasons as regards belief of commission of an offence had been recorded by the ASI. The Division Bench of this Court in Dharminder Kumar's case(supra), while referring to judgment of Constitution Bench of Hon'ble Supreme Court in Baldev Singh's case(supra) and some other judgments discussed the scope of Section 42 and Section 43 of the Act and held as follows :) "9. Powers of entry, search and seizure are contained in Chapter V of the Act. The scheme of the Act contemplates two categories of situation /,0
i.e., where the contrabands are found in "any building, conveyance or enclosed place" and "any public place or in transit". For the first contingency, Section 42 of the Act is applicable whereas if any seizure is required to be made from any public place, then it is Section 43 of the Act which would be applicable. Section 42 of the Act requires writing down of information if empowered officials have reason to believe from personal knowledge or information that any illegal acquired property is kept or concealed in a building, conveyance or enclosed place. .... ..... ......
10. While Section 42 empowers the officers of the specified departments to carry out search, seizure and arrest in any building, conveyance or enclosed place, Section 43 deals with the similar power of seizure and arrest in public places. Powers under both these sections can be exercised if the concerned officer has reason to believe that some offence relating to narcotic drugs or psychotropic substances has been committed. Section 49 is another section in the series which empowers officers to stop and search animals and conveyance used for illegal transport of narcotic drugs or psychotropic substances. The words building, conveyance and enclosed place as used in Section 42 have been used for the specific purpose of protecting the persons who are living in the buildings, conveyance and enclosed place.
The Legislature in its wisdom considered proper to draw a demarcating line between building, conveyance and enclosed place on one side and public place or in transit on the other side. The words have been specifically mentioned to show the demarcating line between the two otherwise, the legislature could have used any place instead of narrating the words 'building, conveyance or enclosed place. Even a private open place does not falI within the purview of Section 42 unless it is enclosed. So, this demarcating line will have to be kept in mind. Under Section 43 of the Act, the words used are 'any public place or in transit'. The requirement of recording of information in writing and communicating it to superiors is intended to protect the possible harassment to residents and to maintain personal liberty and human dignity.
building or enclosed place. It is not every conveyance whether in public or private that would fall within the scope of Section 42 of the Act. A conveyance in a public place would fall within Section 43 of the Act and Section 49 gives power to the empowered officer to stop such conveyance for the purpose of search.
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14. x x x
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16. Thus, it is evident that if seizure is made from any animal, Conveyance or article in a public place or in transit then Section 43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provision of Section 43 the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than in a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.
17. It is well settled principle of law that the provisions of a statute are to be construed in a harmonious manner so that each of the provisions are rendered not nugatory. By harmoniously construing Sections 42 and 43 of the Act, it can be safely concluded that if a conveyance is intercepted or apprehended at a public place or in transit then the provisions of Section 42 of the Act would not be applicable." (
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