HARDEEP SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The question for the decision of which, this appeal has been referred to Division Bench, is :-

(2.) Being aggrieved of the judgment of conviction and order of sentence the appellant has preferred instant appeal. It was contended before the learned single Judge (Coram A. K. Singh, J.) that as required by sub-section (2) of S. 42, it was obligatory on the police officer to have send copy of the information received from the informer to his superior officers. The non-compliance of the mandatory provision has vitiated the trial. Per contra it was submitted by the learned Public Prosecutor that as the search was conducted at a public place and not inside any building conveying or enclosed place and, therefore, the provisions of sub-section (2) of S. 42 were not attracted.

(3.) The learned counsel for the appellant placed reliance on a decision of this Court in Billu v. State of Rajasthan, reported in 1994 Cri LR (Raj) 747 wherein B. R. Arora, J., as his Lordship then was, held that the provisions of sub-section (1) and (2) of S. 42 are attracted to the search of a person conducted in public place. The case was decided relying on a decision of the Apex Court in State of Punjab v. Balveer Singh, reported in AIR 1994 SC 1872. The said case i.e. Billu's case has been followed by Bhagwati Prasad, J. in Gurudev Singh v. State of Rajasthan, reported in 1996 Cri LR (Raj) 465 and by S.C. Mittal, J. in Nathu Banjara v. State of Rajasthan, reported in 1997 Cri LR (Raj) 135 and in Buta Singh v. State of Rajasthan, 1997 Cri LR (Raj) 423. On the other hand the learned Public Prosecutor relied on an another decision of B. R. Arora, J. in Umesh Kumar Chobey v. State of Rajasthan, reported in 1995 Cri LR (Raj) 82 wherein a contrary view has been taken to the effect that in case of search in public place the provisions of S. 42 are not attracted and, therefore, the questions of non-compliance of S. 42(2) of the N.D.P.S. Act does not arise. This case was also decided relying on the decision of the Apex Court in Balveer Singh's case (supra). The learned Public Prosecutor also relied on a decision of this Court in Kabu alias Khudia v. State of Rajasthan, reported in 1991 Cri LR (Raj) 183 wherein his Lordships N. K. Jain, J. as he then was held that in case of recovery of contraband from the public place the provisions of S. 42(2) of the Act are not attracted. Learned single Judge (Coram A. K. Singh, J.) found that there is conflict of opinion among the single Benches of this Court as to the applicability of the provisions contained in sub-sections (1) and (2) of S. 42 of the N.D.P.S. Act to the searches conducted at public places i.e. places other than a building, conveyance or enclosed placed not covered by the explanation given in S. 43 of the N.D.P.S. Act. The learned single Judge after examining the entire scheme of the N.D.P.S. with reference to search, seizure and arrest and on consideration of the case law on the subject expressed inability to agree with ratio in Billu's case and followed by the other Benches. In the opinion of A. K. Singh, J. the provisions of S. 42(1) and (2) of the N.D.P.S. Act are attracted only when the authorised officers proposed to enter into a building, conveyance or enclosed place, which is not being a public place and as such the provisions of S. 42(2) of the Act in case of public place is not attracted. A. K. Singh, J. has given a strong reasoning in support of his view. At the first place, in the opinion of the A. K. Singh, J. the decision of the Supreme Court in Balveer Singh's case which is the basis of decision in Billu's case cannot be cited as an authority for the proposition that provisions of S. 42(1) and (2) of the N.D.P.S. Act would be attracted to searches conducted in public places. According to A. K. Singh, J. the Legislature has made distinction between the search of person and search of the place. While S. 50 provide for search of a person, S. 43 provides for search in public place and S. 42 in private place. Search of person involves some curtailment of the personal liberty and dignity of the person who is to be searched and, therefore, the provisions gives a greater protection to ensure that no person is searched unless there is sufficient ground to justify the search. In order a innocent person is not subjected to humiliation legislature has provided safe- guards under S. 50 of the N.D.P.S. Act. So far as search of place is concerned, it is dealt with by the Ss. 42 and 43 of the N.D.P.S. Act. The necessity of protection of property right of a person may arise in respect of those properties only which are in exclusive possession of the person who has the right to exclude others from entering into the property which is in his possession. Therefore, the search under S. 42 with respect to the private places also provides protection to a certain degree, however in case of public place no person can have any right to prevent the entry of any person in such places which is not in exclusive possession of the person. In respect of such public places, the question of protecting the property right of any citizen does not arise. Therefore, in case of search in public place under S. 43 of the N.D.P.S. Act has not been provided safeguards as provided in case of search under S. 50 i.e. of person, under S. 42 i.e. of private property.