2026:HHC:35784 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P. No. 2166 of 2026 in Cr. Appeal No. 493 of 2024 Reserved on : 18.08.2026. Date of decision: 24.08.2026 Date of upload : 24.08.2026 _____________________________________________________________________________ Sher Singh ....Applicant Versus State of Himachal Pradesh …Respondent ____________________________________________________________________________ Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? 1 _____________________________________________________________________________ For the Applicant. Mr. George, Advocate. For the Respondent: Mr. Pawan Kumar Nadda, Additional Advocate General. __________________________________________________________ Vivek Singh Thakur, Judge This application has been preferred by applicant-appellant for suspension of his sentence awarded to him, vide judgment of conviction dated 25.07.2024 and order of sentence dated 02.08.2024, passed by Special Judge, (Family Court), Shimla, H.P. in Sessions Trial No. 95-S/7 of 2023/2022, titled State of Himachal Pradesh vs. Sher Singh 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 and Another, arising from FIR No. 68/2021, dated 26.11.2021, registered at Police Station Nerwa, District Shimla, H.P., whereby he has been sentenced to undergo rigorous imprisonment for ten years and also to pay fine of Rs. 1,00,000/- for commission of offence under Section 20, read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and in default of payment of fine, to further undergo simple imprisonment for one year. 2. As per custody certificate, placed on record by respondent- State, as on date 06.06.2026, applicant-appellant had served 4 years 5 months and 8 days sentence and, therefore, as on date, he has served sentence about 4 years and 7 months. 3. As per prosecution case, on 26.11.2021 at about 2:00 AM, police party headed by Head Constable Ramesh Chand, while on patrolling at Nevti, noticed an Alto Car bearing registration No. HP-16A- 1649, which was stopped for checking. Two persons, including driver, were travelling in the said Car. On inquiry, they disclosed their names and addresses as applicant-appellant (Sher Singh) and co-accused (Balram). HC Ramesh Chand inquired from them about the reason for travelling during late hours in the night, but both of them could not give satisfactory 3 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 answer, which raised suspicion and, therefore, vehicle was searched by HC Ramesh Chand with the help of police officials intensively. 4. During checking, person sitting on front seat, adjacent to the driver of the vehicle, was found keeping a carry bag between his legs. 5. The bag was opened and checked, wherein stick-shaped black-colored substance was found. On smelling and on the basis of experience, black-coloured substance was verified as Charas. Recovered Charas was sealed and seized by following procedure prescribed under law. 6. Learned counsel for applicant-appellant has pressed for suspension of sentence on the ground of non-compliance of Section 42 of NDPS Act, as the vehicle in which applicant-appellant was travelling was a private vehicle, which was searched between sunset and sunrise, without recording reason to believe and inability to obtain authorization without affording opportunity for concealment of evidence or facility for escape of offender. 7. Learned counsel for the applicant-appellant submitted that applicant along with co-accused was travelling in private Car bearing registration No. HP-16A-1649, which was allegedly intercepted by police 4 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 at 2:00 A.M., i.e., during midnight. Therefore, alleged recovery in the present case is between sunset and sunrise. 8. It has been contended on behalf of applicant-appellant that neither in Ruqua (Ext.P-22/PW7), nor in search and seizure memo (Ext. P-2/PW1), there is reference of recording reason to believe, before entering into and searching the private car. 9. Further, that even in deposition in the Court as PW-11, HC Ramesh Chand has not stated that before searching the private Car during the period after sunset and before sunrise, any reasons to believe were recorded by him. 10. Section 42 of NDPS Act confers power of entry, search, seizure and arrest without warrant or authorization, providing therein that any officer, mentioned in Section 42(1) of NDPS Act, on receiving information or having personal knowledge with regard to commission of offence under NDPS Act, is empowered to enter any building, conveyance or enclosed place between sunrise and sunset with second proviso of Section 42(1) of the NDPS Act, which provides that in case the officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for concealment of evidence or facility for escape of an offender, he may enter and search such building, 5 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 conveyance, or enclosed place at any time between sunset and sunrise, but after recording grounds of his belief. 11. Relevant proviso under Section 42(2) of NDPS Act reads as under:- “42, Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” 12. In the record, including evidence led by parties, as well as in statement of PW-11 HC Ramesh Chand, Investigating Officer, nowhere stated that before checking the private vehicle, reasons to believe were recorded by the Investigating Officer regarding possibility of concealment of evidence, absconding of accused or any information with regard to possibility to disappear the evidence. 13. Learned Additional Advocate General has submitted that vehicle was checked spontaneously on the spot and during that search, Charas was recovered and, therefore, there was no occasion and time to record reason to believe and/or to have authorization from the competent officer. 14. Learned Additional Advocate General submits that in present case, there was no necessity to record reason to believe by Investigating Officer, nor sufficient time was there, as the vehicle was 6 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 checked on suspicion. According to learned Additional Advocate General, provisions for recording reason to believe before checking the conveyance between sunset and sunrise, are not applicable in present case, where car was checked in public place. 15. Learned counsel for the applicant-appellant has placed reliance upon judgment of the Apex Court in case titled Karnail Singh vs. State of Haryana, reported in (2009) 8 SCC 539 by referring following para:- “35. In conclusion, what is to be noticed is Abdul Rashid (2000) 2 SCC 513 did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham (2001) 6 SCC 692 hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : (a) The officer on receiving the information [of the nature referred to in Sub-section (1) of section 42] from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. 7 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” 16. Learned counsel for the applicant-appellant has also placed reliance upon judgment of the Apex Court in case titled State of 8 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 Rajasthan vs. Jagraj Singh alias Hansa, reported in (2016) 11 SCC 687 by referring following para:- “29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance of requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in paragraph 5. The present is not a case where insofar as compliance of Section 42(1) proviso even an arguments based on substantial compliance is raised there is total non-compliance of Section 42(1) proviso. As observed above, Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We thus, conclude that the High Court has rightly held that non compliance of Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.” 17. Learned counsel for the applicant-appellant has further placed reliance upon judgment of the Apex Court in case titled Boota Singh and Others vs. State of Haryana, reported in AIR Online 2021 SC 198 by referring following paras:- “12. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa , 9 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. 13. It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act. 14. The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa, is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted. 15. In the circumstances, the courts below fell in error in rejecting the submissions advanced on behalf of the appellants. We, therefore, allow this appeal, set-aside the view taken by the High Court and acquit the appellants of the charge levelled against them. The appellants be released forthwith unless their custody is required in connection with any other offence.” 18. Learned Additional Advocate General has placed reliance upon the judgment of Apex Court in case tiled State of Haryana vs. Jarnail Singh and Others, reported in (2004) 5 SCC 188 by referring following paras:- “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 10 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 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 authorization 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 authorized 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 the sunrise.” 19. By referring judgment of the Apex Court in case titled Kallu Khan vs. State of Rajasthan, reported in (2021) 19 SCC 197, learned Additional Advocate General has submitted that in this case also, vehicle 11 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 was checked at 6:05 A.M., without complying the provisions of proviso to Section 42(2) of NDPS Act and conviction of Kallu Khan was upheld by the Apex Court. 20. In Kallu Khan's case, though vehicle was searched at 6:05 A.M., but it was on 24.04.2011, i.e., in the month of April, when sunrise is too early. Even otherwise, in this case, applicability of Section 42(2) NDPS Act was not in issue. 21. In Jarnail Singh's case referred supra, recovery was from tanker, which is a public utility vehicle and, therefore, in this case, it was held by the Apex Court that Section 42 of NDPS Act was not applicable, but Section 43 of NDPS Act was applicable, which empowers the competent officer to search a public place and seize the contraband. The public place has been explained under Section 43 of NDPS Act as a public place, which includes any public conveyance, hotel, shop, or other places intended for use by, or accessible to, the public. 22. In present case, vehicle is a private vehicle and search is during night, i.e., between sunset and sunrise, and, therefore, Section 42 of NDPS Act was applicable. 23. Perusal of the record, especially ruqua, seizure memo, as well as statement of Investigating Officer, PW-11-HC Ramesh Chand, 12 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 shows that no reason to believe was ever recorded by the Investigating Officer, much less sent to the superior officers before entering and searching the private Car, in which applicant-appellant was travelling. 24. It is not a case where there is some defect in compliance of provisions of Section 42 of NDPS Act, but it is a case of total non- compliance of Section 42 of NDPS Act, which has been held impermissible by the Apex Court in Karnail Singh’s case, Boota Singh’s case and Jagraj Singh’s case. There must be compliance of Section 42 of NDPS Act, at least substantial compliance, which is missing in present case and, therefore, there is a fair chance of acquittal of the applicant- appellant, as per exposition of law existing on date. 25. Therefore, substantive sentence awarded to the applicant- appellant Sher Singh is ordered to be suspended during pendency of the appeal, subject to furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of Trial Court, with undertaking therein to appear before this Court as and when directed and in the event of the dismissal of the appeal, to surrender before the Court, to serve the remaining sentence. 26. During suspension of sentence, applicant-appellant Sher Singh shall not involve in commission of illegal and/or unlawful act, much 13 2026:HHC:35784 Cr.M.P. No. 2166 of 2026 less in commission of similar offence and such involvement shall result suspension of sentence. 27. Bail bonds so furnished shall be transmitted by the Trial Court to the Registry of this Court for placing the same on record. 28. Any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding present application. 29. Parties are permitted to produce a copy of this order downloaded from the web-page of the High Court of Himachal Pradesh, before the Trial Court, and the Trial Court shall not insist for production of certified copy of order, rather Trial Court shall verify passing of this order from the Web-page of the High Court. Application is allowed and disposed of in aforesaid terms. (Vivek Singh Thakur), Judge. (Ranjan Sharma), Judge. 24th August, 2026 (Susheel)