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Submissions

28. Mr. Bhandari, learned counsel appearing for the appellant assailed the impugned judgment on, essentially, three fronts. First, he submitted that the provisions of Section 42 of the NDPS Act were not complied with. He contended that there was no material on record to establish that either Sh. Pawan Kumar (who had conducted the search and was examined as PW-4) had taken down any information on the basis of which he had conducted the search or that had he forwarded the same in writing to his superiors. He contended that the proceedings had taken place in Customs Hall of IGI Airport, which is not accessible to public and therefore, provisions of Section 42 of the NDPS Act were applicable. He further submitted that there could be no dispute regarding the same, as the panchnama (Ex.PW4/E) also recorded that PW-4 was acting under Section 42 of the NDPS Act. He referred to the decision of a Coordinate Bench of this Court in R. Ravi Chandran v. Djibrilla Diallo: CRL.A.268/1997, decided on 27.02.2008. He pointed out that in this case, the search had taken place at the Luggage Hold Area of the Customs Authorities and the Court had held that the said place could not be described as a public place and therefore, the provisions of Section 42 of the NDPS Act was applicable. He also referred to the decision of the Supreme Court in State of Punjab v. Balbir Singh: (1994)3 SCC 299 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat: CRL.A. 78/1992, decided on 01.02.2000, in support of his contention that provisions of Section 42 of the NDPS Act were mandatory.

Reasons and Conclusion

40. The first and foremost question to be addressed is whether the provisions of Section 42 of the NDPS Act have been violated. Undisputedly, the provisions of Section 42 of the NDPS Act are mandatory. It is also not disputed that none of the Customs Officers had recorded any reasons for believing that an offence punishable under Chapter IV of the NDPS Act has been committed or that a search warrant or authorization cannot be obtained without affording an opportunity for concealment of the evidence or facility for the escape of an offender. It is also relevant to note that the complaint filed by the respondent also expressly indicates that proceedings were undertaken under Section 42 of the NDPS Act. It is also mentioned in the panchnama (Ex.PW4/E) that the substance was recovered and seized under Section 42 of the NDPS Act.

41. Indisputably, if the provisions of Section 42 of the NDPS Act are applicable then it is apparent that the same have not been complied with. As stated above, the provisions of Section 42 of the NDPS Act are mandatory and therefore, non-compliance of the same would vitiate the proceedings. However, the key question to be addressed is whether the provisions of Section 42 are applicable in the given facts.

42. It was contended on behalf of the appellant that since the complainant has expressly stated in the complaint as well as in the panchnama that the proceedings were conducted under Section 42 of the NDPS Act, it is not open for the prosecution now to contend the contrary. However, the said contention is unpersuasive. It is well settled that merely mentioning a provision or a certain section of an enactment in the pleadings or in documents, would not necessarily preclude any party from raising any question of law in that regard. The question whether Section 42 of the NDPS Act is applicable or not is a question of law and this question can be raised at any stage.

50. In Joseph Henry, Rukmani (supra), the Madras High Court after referring to the decision of the Division Bench of this Court in Utpal Mishra (supra) held that an airport could not be considered as a public place, as referred to under Section 42 of the NDPS Act.

51. Admittedly, there is a material difference in Section 42 and 43 of the NDPS Act. Whereas Section 42 of the NDPS Act requires recording of reasons for the belief and for taking down the information received in writing, in regard to commission of an offence; section 43 of the NDPS Act does not require recording of any such belief or reason. In Karnail Singh v. State of Haryana: (2009) 8 SCC 439, the Supreme Court had held as under: -