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State, Nct Of Delhi v. Malvinder Singh .
Factual and Procedural Background
On 20 February 1990 Sub-Inspector Pran Nath of the Special Staff, North District, Delhi, received secret information while on patrol that two individuals were carrying opium. A raiding party—joined by Assistant Sub-Inspector Ramesh Kumar, other police personnel, and a public witness—waited at Ring Road Crossing, Timarpur. At about 7:45 a.m. they stopped Scooter No. DIA 819. Malvinder Singh (driver) and Om Prakash (pillion rider) admitted possession of opium when informed of their right to be searched before a gazetted officer. ACP H.M. Meena and SHO R.C. Saini soon arrived, verified the information, and directed the search.
The search yielded 800 g of opium from Om Prakash’s person and 700 g from the scooter’s dicky, both duly sampled, sealed, and deposited. The Central Forensic Science Laboratory confirmed the presence of morphine. Both accused were arrested and charged under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The learned Sessions Judge, Delhi, in Sessions Case No. 698/1991 convicted each accused, sentencing them to ten years’ rigorous imprisonment and a fine of ₹1,00,000. On appeal, the Delhi High Court set aside the conviction of the present respondent, holding that mandatory requirements of Section 42 NDPS Act were not met because the secret information had neither been reduced to writing nor forwarded to superior officers. The State appealed to the Supreme Court.
Legal Issues Presented
- Whether the search and seizure conducted while the accused were in transit on a public road required compliance with Section 42 of the NDPS Act.
- Whether failure to produce or prove written information given to superior officers vitiated the conviction.
- Whether the Delhi High Court erred in reversing the trial court’s conviction on the ground of alleged non-compliance with Section 42.
Arguments of the Parties
Appellant’s Arguments
- Section 42 NDPS Act was inapplicable because the officers were on patrol, received information in a public place, and effected seizure in transit; Sections 43 and 41 governed the situation.
- The ACP, a gazetted officer, participated in the raid, further excluding the need to comply with Section 42.
- The information was, in fact, conveyed to senior officers; if the defence doubted this, it was incumbent upon them to call for the records.
Respondent’s Arguments
- Supported the Delhi High Court’s finding that non-compliance with Section 42—failure to reduce the secret information to writing and forward it—vitiated the conviction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| T. Thomson v. State of Kerala, (2002) 9 SCC 618 | No statutory obligation to produce written record of information in court unless specifically called for by the defence. | Used to reject the defence contention that non-production of the written information automatically invalidated the search. |
| State of Haryana v. Jarnail Singh, (2004) 5 SCC 188 | Distinction between Sections 42 and 43 NDPS Act; searches in public places fall under Section 43 and need not satisfy Section 42 requirements. | Relied upon to hold that the scooter search on a public highway was governed by Section 43, making Section 42 inapplicable. |
| M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449 | When a gazetted officer himself conducts the search under Section 41, compliance with Section 42 is unnecessary. | Cited to reinforce that participation of a gazetted officer (the ACP) dispensed with Section 42 compliance. |
Court's Reasoning and Analysis
The Supreme Court observed that Sections 42 and 43 of the NDPS Act contemplate different factual settings. Section 42 applies to searches of buildings, conveyances, or enclosed places based on prior information, whereas Section 43 governs seizures made in public places or in transit. Here, the scooter was intercepted on a public road while moving; therefore, Section 43 squarely applied. Consequently, the statutory obligations of Section 42—namely, reducing prior information to writing and forwarding it—were irrelevant.
The Court further noted that a gazetted officer (ACP Meena) was part of the raiding party, bringing the case within the scope of Section 41, which independently authorises such searches without invoking Section 42. Relying on T. Thomson, the Court held that, since the defence never summoned the relevant records, absence of those records in evidence did not undermine the prosecution’s case.
Given these principles, the High Court’s acquittal—premised solely on alleged non-compliance with Section 42—was deemed legally unsustainable.
Holding and Implications
Appeal Allowed; Trial Court Conviction Restored. The order of the Delhi High Court acquitting the respondent is set aside. The respondent must surrender immediately to serve the remainder of the sentence imposed by the Sessions Court.
Implications: The decision re-affirms the distinction between Sections 42 and 43 of the NDPS Act and clarifies that searches conducted in public places or in transit, especially when a gazetted officer is present, do not require the procedural compliances mandated by Section 42. No new legal doctrine was created, but existing jurisprudence on the scope of Sections 41, 42, and 43 has been reinforced.
Dr. Arijit Pasayat, J.— Challenge in this appeal is to the judgment of a learned Single Judge of the Delhi High Court directing acquittal of the respondent (hereinafter referred to as “the accused”). Learned Sessions Judge, Delhi in Sessions Case No. 698 of 1991 found the accused guilty of the offence punishable under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the Act”) and sentenced him to undergo rigorous imprisonment for ten years with a fine of Rs 1,00,000 with default stipulation.
2. Background facts in a nutshell are as follows:
On 20-2-1990 Pran Nath, Sub-Inspector of Special Staff, North District, was on patrolling duty along with Ramesh Kumar, Assistant Sub-Inspector; Puran Chand, Head Constable; Raghbir Singh, Head Constable; Ved Parkash, Head Constable and other constables. At about 7 a.m, near the petrol pump at Mall Road situated within the bounds of Police Station, Timarpur, a police informer gave information to Pran Nath, Sub-Inspector of the accused's possession of opium. Consequently, a raiding party was organised. Jeet Lal, public witness was also joined in the raiding party besides the abovementioned cops. Thereafter, the members of the raiding party lay waiting at the Ring Road Crossing, Timarpur.
3. At about 7.45 a.m Scooter No. DIA 819 was spotted by the members of the raiding party. It was observed that Malvinder Singh (the accused) was plying the said scooter and accused Om Parkash @ Lalla @ Gupta was sitting on its pillion seat. At the instance of the informer the scooter was stopped. Pran Nath, Sub-Inspector acquainted the accused with the contents of the information and with the fact that if the accused so desired, they could be produced before an officer (gazetted) for conducting their search. The accused reeled off their refusal to the said proposal and made clean breast of the charge that they were having opium. However, Pran Nath sent information to Ramesh Chand Saini, the then SHO of Police Station Timarpur and H.M Meena, ACP and called them to the spot. After some time ACP Shri Meena and SHO Shri Saini arrived at the spot one after the other. Both of them verified the facts on the spot. Thereafter, they directed the investigating officer to conduct the search. The search of Om Parkash, the accused resulted in recovery of opium weighing 800 gm which had been wrapped in a newspaper and kept in between chest, shirt and sweater of Om Parkash. Malvinder, the accused produced the key of the scooter. He brought out the same from the lock of the head of the scooter. Opium weighing 700 gm, wrapped in green polythene paper was recovered from dicky of the abovesaid scooter. Two samples weighing 50 grams each were separated from the abovesaid opium weighing 800 grams and 700 grams. Both the samples and the remaining two parcels of the opium were separately packed and sealed with the seals bearing the initials of RKV belonging to Ramesh Kumar Vohra, ASI and RCS belonging to the SHO. CFSL form was filled in and both the seals were affixed thereon. The seal of RKV was entrusted with Jeet Lal, public witness, but the SHO retained his seal with him. SHO carried the case property and CFSL form to the police station and deposited the same with the Moharar Malkhana. The case property recovered from the possession of Om Prakash was seized vide recovery memo Ext. PW 1.B, Malvinder's case property, scooter, keys were seized vide recovery memo Ext. PW 1.A. Kuldip Singh, Constable took the ruqqa, Ext. PW 6.A to the police station and Kedar Nath Singh, Head Constable registered the instant case. Report of CFSL, Ext. 7.B depicted the percentage of morphine in the samples as 5.5 and 4.8 approximately. The Public Analyst came to the conclusion that the samples had given positive tests for opium. The accused were thus arrested and charged under Section 17 of the NDPS Act.
4. After investigation, charge-sheet was filed. The accused pleaded innocence. The accused also pleaded that on account of animosity with the Head Constable Chandrika Parshad, he was falsely implicated. The trial court found the evidence to be cogent and credible and convicted both the accused persons i.e Om Prakash and the present respondent. The respondent preferred an appeal before the High Court and questioned the conviction primarily on the ground that there was non-compliance with the requirements of Section 42 of the Act. The High Court accepted the plea that the secret information received was not reduced into writing and was also not sent to the higher officer. In the absence of any evidence to this effect it was held that there was non-compliance with the mandatory requirements of Section 42 of the Act. Accordingly, the conviction was set aside and acquittal was directed.
5. In support of the appeal learned counsel for the appellant submitted that the High Court had erroneously concluded that this was a case to which Section 42 has application. Undisputedly, the police officer while on patrol duty, received secret information and had organised the raid party. The ACP was also informed and he was a part of the raid party and, therefore, Section 42 has no application. In any case there was no requirement to send any information which in fact had been done. It was for the accused to call for the record relating to the information given to the superior officer. In any event, this is a case which is not only covered by Section 43 IPC but also covered by Section 41 IPC.
6. Learned counsel for the accused supported the order of the High Court.
7. At this juncture it would be relevant to take note of what has been stated by this Court in T. Thomson v. State of Kerala (2002) 9 SCC 618. At para 5 it was observed as follows:
“5. Learned Senior Counsel further argued that the record alleged to have been prepared by PW 1 on getting information regarding the movement of the appellants has not been produced in court. But he conceded that no motion was made on behalf of the appellants to call for the said record. There is no statutory requirement that such a record should be produced in the court as a matter of course. We are, therefore, not disposed to upset the finding on that score either.”
8. It appears that no effort was made by the accused to call for the records of information, if any, sent. The further question is whether in a case of this nature while the police officer on patrol duty stops the vehicle in transit in a public place and conducts search and seizure, Section 42 has no application?
9. In State of Haryana v. Jarnail Singh (2004) 5 SCC 188 it was held as follows:
“7. The next question is whether Section 42 of the NDPS Act applies to the facts of this case. In our view Section 42 of the NDPS Act has no application to the facts of this case. Section 42 authorises an officer of the Departments enumerated therein, who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance, etc. is kept or concealed in any building, conveyance or enclosed place. This power can be exercised freely between sunrise and sunset but between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief 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.
8. 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 authorised 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 expression ‘public place’ includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise.
10. In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police was also a member of the searching party. It has been held by this Court in M. Prabhulal v. Asstt. Director, Directorate of Revenue Intelligence (2003) 8 SCC 449 that where a search is conducted by a gazetted officer himself acting 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.”
10. Above being the position of law, the order of the High Court is clearly unsustainable. Section 42 has no application to the facts of the case. The order of the High Court is set aside and that of the trial court is restored. The respondent-accused shall surrender forthwith to custody to serve remainder of sentence.
11. Appeal is allowed.
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