NDPS searches of passenger vehicles in public places are governed by Section 43, not Section 42.

On 25 February 2020, police received secret information that a passenger vehicle travelling towards Dasda was carrying ganja.

The information was entered in the station diary and communicated to a superior officer; after receiving authorisation, the police stopped the vehicle at Barahaldi Naka Point.

The appellant, Udairam Reang, was found carrying two bags containing a total of 7 kg of ganja, which were seized.

The Special Judge convicted him under Section 22(b)(ii)(B) of the NDPS Act and sentenced him to five years’ rigorous imprisonment. His wife appealed on his behalf, challenging, among other matters, compliance with the NDPS Act and the proof of the seizure and chain of custody.

Whether the search and seizure complied with Sections 42 and 43 of the NDPS Act, given that the information was recorded and communicated to a superior and the search occurred at a public place.

Whether the search and recovery complied with Section 50 of the NDPS Act.

Whether the prosecution proved conscious possession and an unbroken chain of custody, notwithstanding the asserted procedural deficiencies and non-production of the malkhana register.

Section 42 of the NDPS Act requires qualifying information to be reduced to writing and a copy sent to the immediate superior within the prescribed period; Section 43 empowers seizure and arrest in a public place or in transit, and the court relied on Jarnail Singh for the distinction between Sections 42 and 43 and the application of Section 43 to a public conveyance.

Section 50 governs the search of a person; the court found its requirements complied with on the evidence before it.

Section 52A provides for inventory, sampling and certification by a Magistrate, while Section 57 requires a report of arrest or seizure to a superior officer; relying on Gurmail Chand, the court treated Section 57 as directory and held that substantial compliance suffices.

The court further held, relying on The State of Tripura v. Jammu Baig, that non-production of the malkhana register is not necessarily fatal where the evidence otherwise establishes the safe custody and transmission of the seized material.

The prosecution must establish possession; the court stated that possession under the NDPS Act must be conscious.

The court found that the secret information had been recorded in the station diary, communicated to the superior officer, and followed by authorisation and a search at a public naka point. It therefore held that Section 43 applied and found no fatal breach of the search-and-seizure requirements.

It accepted the evidence that notice had been given under Section 50 and that the bags containing ganja were recovered from the appellant.

The court considered the prosecution witnesses’ evidence consistent and corroborated by documentary and forensic evidence.

It also found the sampling, sealing, transmission to the laboratory and subsequent disposal adequately established; the absence of the malkhana register did not, in the circumstances, undermine the chain of custody.

The court concluded that the recovery from the appellant’s possession and the surrounding evidence supported the finding of conscious possession.

It dismissed the appeal and also dismissed any pending applications.