Contraband Substances Recovered And Seized From A Truck In Transit Would Fall U/S 43 NDPS Act: Gauhati HC

A bench of Justice Robin Phukan thus observed, “It is well settled in catena of decision of Hon’ble Supreme Court that private vehicle is not a ‘public place’. And here in this case, the Truck, where the contrabands substances were recovered and seized is not a public conveyance. But, the fact remains that the contrabands were recovered and seized while in transit and as revealed from the FIR the informant was authorized by the Government of Assam…under the provision of Section 42(1) NDPS Act to enter, search and seizure. As the contraband substances were recovered and seized during transit in the Truck, as contemplated in Section 43 (a) i.e. ‘seize in any public place or in transit’, this court is of the considered opinion that herein this case instead of Section 42 of NDPS Act, section 43 of the said Act is attracted. And as such, recording of reasons for belief and for taking down of information received in writing with regards to the commission of an offence before conducting search and seizure, is not required to be complied with under Section 43 of NDPS Act”.

Advocates K N Choudhury, A. Mandla appeared for the petitioner PP R.J. Baruah appeared for the respondent.

The present application under Section 439 of the Code of Criminal Procedure was filed to seek bail for offences under Sections 22(c)/25/29 of the NDPS Act.

The Police had intercepted one Truck that was driven by the applicant, where pursuant to checking the vehicle they found 353 packets containing 35300 bottles of codeine phosphate Phensedyl Cough Syrup, weighing 4271.3 kgs without bottle, which were concealed with Haldiram’s products and seized the same in presence of witnesses by preparing seizure list.

It was argued on behalf of the accused that the search and seizure was made in contravention of provision of Section 42 and 50 of NDPS Act and the accused was entitled to benefit of the same even at the stage of bail.

However, to the contrary, the State argued that the vehicle was intercepted during Naka Checking and there was no prior information and as such non-compliance was not fatal as the informant has given sufficient reason for such non-compliance. It was further submitted that non-compliance of Section 42 NDPS Act is to be decided during trial after taking evidence only.

The State also said that the quantities of the contraband substances, recovered from the possession of the accused persons are of commercial quantity, and the accused has to satisfy the twin conditions of Section 37 of the NDPS Act which he failed to in the present case.

However, considering the nature and gravity of the offence and the punishment prescribed for the same the bench was of the opinion that it was not a fit case to grant bail to the accused and therefore, dismissed the petition.

Appearances:

Petitioner: Advocates K N Choudhury, A. Mandla

Respondent: PP R.J. Baruah

Cause Title: Mayank Sharma v. The State Of Assam