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TMI Blog2004 (4) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the requirements of Sections 42 and 50 thereof. Earlier, the respondents were tried by the Additional District Judge, Ambala who found them guilty of the offence under Section 15 of the NDPS Act and sentenced them to rigorous imprisonment for 10 years each and to pay a fine of Rs. 1 lakh each and in default of payment of fine to undergo further rigorous imprisonment for two years. The facts of the case are not in dispute. The case of the prosecution is that on February 20, 1992 Sub-Inspector Mehar Singh, SHO Police Station Mullana alongwith Head Constable Om Prakash and other members of the police force, was on patrolling duty and was moving about in a government jeep. On the way they met Mahinder Singh Ahlawat, Superintendent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to acquittal in view of the fact that the mandatory requirements of Section 50 and Section 42 of the NDPS Act were not complied with. The High Court held that the provisions of Section 50 of the NDPS Act applied and before searching the vehicle the accused had to be informed of his right to be searched in the presence of a Magistrate or a gazetted officer. It made no difference that a Superintendent of Police, who was a gazetted officer, was a member of the searching party who searched the vehicle. It further held that Section 42 of the Act had not been complied with inasmuch as the SHO Mehar Singh did not record the grounds for his belief before entering upon the search that he had reasons to believe that some contraband offending the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NDPS Act, the Court came to the following conclusion :- "On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." The same view has been reiterated in several decisions of this Court including Kalema Tumba vs. State of Maharashtra and another : (1999) 8 SCC 257 ; Gurbax Singh vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclosed place, he must record the grounds for his belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act. We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of Police was a member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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