Private vehicle not a ‘public place’ : SC

Introduction

Law is not an exact science. Its shades change depending on the context, differ from statute to statute. Background circumstances, and the expediency of the situation often influence the application of law.Two recent judgments on the issue whether a private car is a public place are examples. While the Delhi High Court held last week that a private car amounts to a public place in order to hold that wearing of a face mask is compulsory even when travelling alone, the Supreme Court held in an NDPS case yesterday that a private vehicle is not a public place.

Delhi High Court Ruling 

In the Saurabh Sharma and others v Sub Divisional Magistrate (East) and others the Delhi High Court held that wearing of face mask is compulsory even while driving alone in a personal car. A single bench of Justice Prathiba M Singh held that a private vehicle will amount to a public place in the context of COVID-19 pandemic regulation. Referring to precedents, the Court said that the meaning of the term ‘public place’ changes from context to context.

The word ‘public place’, has to be interpreted in this case in the context of the COVID pandemic. To determine what constitutes a `public place’ the manner in which the Coronavirus can spread is the crucial part”.

The Court also said that there is a possibility of the droplets released by a person while driving alone in a car infecting others who may enter the vehicle hours later. A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a public place and wearing of a mask there would be compulsory.

Private Vehicle did not become a “public place” under NDPS Act

On April 16, the Supreme Court held that a private vehicle is not a public place as per Section 43 of the Narcotic Drugs and Psychedelic Substances Act in the case Boota Singh v State of Haryana.

In this case, recovery was made from the accused while they were in a jeep at a public place. The high court held that the case of the accused would be covered by Section 43 of NDPS Act and not by Section 42. Section 42 deals with Power of entry, search, seizure and arrest without warrant or authorisation while Section 43 with power of seizure and arrest in public place.

Before the Apex Court, the accused contended that the vehicle in question was a private vehicle belonging to the accused and was not a public conveyance, though parked on a public road and therefore the case would not come under Section 43 but would be governed by the provisions of Section 42 NDPS Act. Since Section 42 having not been complied with at all, they were entitled to acquittal, they contended.

The Explanation to Section 43 stated: 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.

The Supreme Court held that since the explanation only referred to “public conveyance” and not to private vehicles, the jeep involved in the case was not a “public place” coming under Section 43. Hence, the officers had to follow the procedure under Section 42 NDPS with respect to the recovery. The same having not been followed in this case so, the accused were acquitted.

The bench comprising of Justices UU Lalit and KM Joseph held that “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.” 

Difference between Section 42 & 43 of NDPS Act

Section 42

Section 43

Section 42  1. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.   2.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.

Section 43 Power of seizure and arrest in public place.Any officer of any of the departments mentioned in section 42 may (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;   (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.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

 

Drinking alcohol inside private car amounts to drinking in public place

In 2019, the Supreme Court held that consuming liquor in a private vehicle in a public place will attract the offence under the Bihar Excise Act, which prohibits alcohol. In this case Satvinder Singh Saluja v State of Bihar, the appellant were charge-sheeted under Section 53(a) of the Bihar Excise (Amendment) Act 2016 on the ground that they were found drunk inside a private vehicle. For seeking the quashing of the chargesheet, the appellant argued that Section 53(a), which punishes drinking in a public place, is not applicable as a private car is not a public place.

The SC rejected the first argument on the basis of statutory definitions of ‘public place’ under the Bihar Excise (Amendment) Act 2016 and Bihar Prohibition and Excise Act 2016. As per Section 2(17A) of the Bihar Excise (Amendment) Act “Public Place” means “any place to which the public have access, whether as a matter of right or not and includes all places visited by the general public and also includes any open space”.

According to the Court, the key word in the definition was “access”. Any place to which the public have access, whether as a matter of right or not, is a public place.

It observed that the public can have access to a private vehicle in a road. The Court noted that ‘ access’ has been defined in Black’s Law Dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.

As per Section 2(17A) of the Bihar Excise (Amendment) Act “Public Place” means “any place to which the public has access, whether as a matter of right or not and includes all places visited by the general public and also includes any open space”.

According to the Court, the key word in the definition was “access”. Any place to which the public have access, whether as a matter of right or not, is a public place. It observed that the public can have access to a private vehicle on a road. The Court noted that ‘access’ has been defined in Black’s Law Dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.” “When a private vehicle is passing through a public road it cannot be accepted that the public has no access. It is true that the public may not have access to a private vehicle as a matter of right but definitely the public have the opportunity to approach the private vehicle while it is on the public road. Hence, we are not able to accept the submission that vehicle in which appellants are travelling is not covered by definition of public place’ as defined in Section 2(17A) of the Bihar Excise (Amendment) Act, 2016, said the judgment authored by Justice Bhushan.

The bench further added that the omission of public conveyance in the definition of Section 2(17A) brought by the Bihar Excise (Amendment) Act, 2016 also indicates that the difference between public conveyance and private conveyance was done away in the statutory amendment. We, thus, cannot accept the submission of the learned counsel for the appellant that private conveyance will be excluded from the definition of public place’ as contained in Section 2(17A)”. The apex court also took into account the fact that the definition of public place’ under Section 2(53) of the Bihar Prohibition and Excise Act 2016 specifically included means of transport, both public and private.

The Kerala High Court has also held that drinking inside a private car at a public place will amount to an offence(Rajendran Pilai and others v State of Kerala This is because after the 2010 amendment to the Kerala Abkari Act, private vehicles parked in any public place were also treated as public places for the purpose of Section 15C of the Act, which prohibits drinking in public places.

Conclusion

Thus it can be concluded that the private vehicle is not a public place under the NDPS Act, but as far as other laws are concerned and the Covid Guidelines are concerned, it can be said that a private vehicle is a public place. Depending on the context, differ from statute to statute. Background circumstances, various deferred judgements have been given by the courts.