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Karnail Singh v. State of Haryana , (SC) : Law Finder Doc Id # 200875

2010(88) AIC 28 : 2009(5) R.C.R.(Criminal) 515 : 2009(4) Recent Apex

Judgments (R.A.J.) 638 : 2009(8) SCC 539 : 2009 CriLJ 4299 : 2009(5)
MPHT 123 : 2010(68) ACrC 827 : 2010(1) ArbiLR 444 : 2009 AIR (SCW)
5265 : 2009(2) OriLR 628 : 2009(4) CTC 881 : 2009(10) Scale 255 : 2009(2)
W.L.C. 573 : 2010(1) ECrC 251 : 2010 Cri. L.R. 614 : 2010(1) Mh.LJ (Crl.) 1
: 2009(3) SCC(Cri) 887 : 2009(108) CutLT 681 : 2009(4) JLJR 104 : 2009(4)
GLR 3296 : 2009(3) L.R.C. 321 : 2009(4) BBCJ 341 : 2009(2) MadWN (Cri)
385

SUPREME COURT OF INDIA

(Large Bench)

Before :- K.G. Balakrishnan, CJI, R.V. Raveendran, D.K. Jain, P. Sathasivam

and J.M. Panchal, JJ.

Criminal Appeal No. 36 of 2003. D/d. 29.07.2009.

Karnail Singh - Appellant

Versus

State of Haryana - Respondent

WITH Criminal Appeal No. 606 of 2004

For the Appellant :- Mr. A.P.S. Goel, Sr. Advocate with Mr. Harikesh Singh,
Devinder Bir Singh for Mr. A.P. Mohanty, Satbir Pillania, Anil Karnawal and
Dr. Sushil Balwada, Advocates.

For the Respondent :- Mr. Rajeev Gaur 'Naseem, Mr. Rajesh Ranjan and Mr.
T.V. George, Advocates.

A. Narcotic Drugs and Psychotropic Substances Act, 1985, Section (as

amended by Act 9 of 2001) - Whether compliance of Section of Narcotic
Drugs and Psychotropic Substances Act is mandatory and failure to take
down the information in writing and forthwith sending a report to
immediate superior would cause prejudice to accused - Held :-

(i) Total non compliance of Section 42(1) and (2) is impermissible

i.e. where the officer does not record the information at all and does
not inform the official superior, then it would be clear violation of
Section of the Narcotic Drugs and Psychotropic Substances Act.

(ii) Total non-compliance of Section 42(1) and (2) is impermissible -

However, delay in compliance with satisfactory explanation 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.

(iii) If the information was received when the Police Officer was in
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.

(iv) Whether there is adequate or substantial compliance with

section 42 or not is a question of fact to be decided in each case.

[Para 17d]

B. Narcotic Drugs and Psychotropic Substances Act, 1985, Sections and -

Search and seizure - The material difference between the provisions of
Sections 42 and 43 is that Section 42 requires recording of reasons for
belief and for taking down of information received in writing with regard
to the commission of an offence before conducting search and seizure,
Section 43 does not contain any such provision and as such while acting
under Section 43 of the Act, the empowered officer has the power of
seizure of the article etc. and arrest of a person who is found to be in
possession of any narcotic drug or psychotropic substance in a public
place where such possession appears to him to be unlawful.

[Para 12]

C. Narcotic Drugs and Psychotropic Substances Act, 1985, Section -

Search and seizure of contraband - Scope of Section 50 - Held :-

Section 50 prescribes the conditions under which search of a person shall

be conducted - Sub-section (1) provides that when the empowered officer
is about to search any suspected person, he shall, if the person to be
searched so requires, take him to the nearest gazetted officer or the
Magistrate for the purpose - Under sub-section (2) it is laid down that if
such request is made by the suspected person, the officer who is to take
the search, may detain the suspect until he can be brought before such
gazetted officer or the Magistrate - Sub-section (3) lays down that when
the person to be searched is brought before such a gazetted officer or the
Magistrate and such gazetted officer or the Magistrate finds that there
are no reasonable grounds for search, he shall forthwith discharge the
person to be searched, otherwise, he shall direct that the search be made.
1999(3) RCR(Crl.) 533 (SC) relied.

[Para 13]

D. Narcotic Drugs and Psychotropic Substances Act, 1985, Section (as

amended by Act 9 of 2001) - On receipt of information, the Police Officer
recording the information in writing, but not sending the same to
immediate superior within 72 hours as required under Section 42 of the
Act - There will be no violation of Section 42 if delay was satisfactorily
explained.

[Paras 9, 15 and 17]

Cases referred :

Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR(Cri.) 611 :

(2000)2 SCC 513.

Sajan Abraham v. State of Kerala, 2001(3) RCR(Criminal) 808 : (2001)6 SCC

692.

State of Punjab v. Baldev Singh, 1999(3) RCR(Criminal) 533 : (1999)6 SCC

172.

State of Punjab v. Balbir Singh, 1994(1) RCR(Criminal) 736 : 1994(3) SCC

299.

Koluttumottil Razak v. State of Kerala, 2000(4) SCC 465.

JUDGMENT

P. Sathasivam, J. - In the case of Abdul Rashid Ibrahim Mansuri v. State of

Gujarat, 2000(1) RCR(Criminal) 611 : (2000)2 SCC 513, a three-Judge
Bench of this Court held that compliance of Section of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") is
mandatory and failure to take down the information in writing and forthwith
send a report to his immediate official superior would cause prejudice to the
accused. In the case of Sajan Abraham v. State of Kerala, 2001(3)
RCR(Criminal) 808 : (2001)6 SCC 692, which was also decided by a three-
Judge Bench, it was held that Section 42 was not mandatory and substantial
compliance was sufficient. In view of the conflicting opinions regarding the
scope and applicability of Section 42 of the Act in the matter of conducting
search, seizure and arrest without warrant or authorization, these appeals were
placed before the Constitution Bench to resolve the issue.

2. The statement of objects and reasons of the Narcotic Drugs And

Psychotropic Substances Act makes it clear that to make the scheme of
penalties sufficiently deterrent to meet the challenge of well organised gangs
of smugglers, and to provide the officers of a number of important Central
enforcement agencies like Narcotics, Customs, Central Excise, etc. with the
power of investigation of offences with regard to new drugs of addiction
which have come to be known as psychotropic substances posing serious
problems to national governments, this comprehensive law was enacted by
Parliament enabling exercise of control over psychotropic substances in India
in the manner as envisaged in the Convention on Psychotropic Substances,
1971 to which India has also acceded, consolidating and amending the then
existing laws relating to narcotic drugs, strengthening the existing control over
drug abuse, considerably enhancing the penalties particularly for trafficking
offences, making provisions for exercising effective control over psychotropic
substances and making provisions for the implementation of international
conventions relating to narcotic drugs and psychotropic substances to which
India has become a party.

3. Let us consider the Scheme of the Narcotic Drugs And Psychotropic

Substances Act and its relevant provisions. The 1985 Act came into force on
14.11.1985. Certain provisions were subsequently amended in 1989 and in
2001. Chapter IV deals with offences and penalties whereas Chapter V deals
with procedure. Section 41 relates to power to issue warrant and authorization.
Section 42 with which we are concerned relates to power of entry, search,
seizure and arrest without warrant or authorization. Section 43 relates to
power of seizure and arrest in public place. Section 50 refers to conditions
under which search of persons shall be conducted. The Narcotic Drugs And
Psychotropic Substances Act prescribes stringent punishment. Hence a
balance must be struck between the need of the law and the enforcement of
such law on the one hand and the protection of citizens from oppression and
injustice on the other. This would mean that a balance must be struck in. The
provisions contained in Chapter V, intended for providing certain checks on
exercise of powers of the authority concerned, are capable of being misused
through arbitrary or indiscriminate exercise unless strict compliance is
required. The statute mandates that the prosecution must prove compliance
with the said provisions.

4. The facts in Abdul Rashid Ibrahim Mansuri (supra) were as follows :

PW 2, Inspector of Police at Dariapur Police Station, got information on

12-1-1988 that one Iqbal Syed Husen was trying to transport charas up
to Shahpur in an autorickshaw. At about 4.00 p.m. they sighted the
autorickshaw which was then driven by the appellant. They stopped and
checked it and found four gunny bags placed inside the vehicle. The
police took the vehicle to the police station and when the gunny bags
were opened ten packets of charas were found concealed therein. The
value of the said contraband was estimated to be Rs. 5.29 lakhs. When
appellant/accused was questioned by the trial court under Section of the
Code of Criminal Procedure he did not dispute the fact that he rode the
autorickshaw and that the same was intercepted by the police party and
the gunny bags kept in the vehicle were taken out and examined by
them at the police station. His defence was that those four gunny bags
were brought in a truck at Chokha Bazar by two persons who unloaded
them into his vehicle and directed him to transport the same to the
destination mentioned by them. He carried out the assignment without
knowing what were the contents of the load in the gunny bags.

The Trial Court acquitted the accused. But, State of Gujarat preferred an
appeal before the High Court. The Division Bench of the High Court set
aside the order of acquittal and convicted the accused of the offences
charged. The convicted accused filed SLP before this Court and
contended that there was non-compliance of Section 42 of the Act
which was enough to vitiate the search as a whole. After referring
Section 42 of the Act and the evidence of police officer as PW 2, the
Court held that (1) he should have taken down the information in
writing; and (2) he should have sent forthwith a copy thereof to his
immediate official superior. After finding that PW 2 - police officer
admitted that he proceeded to the spot only on getting the information
 that somebody was trying to transport a narcotic substance and noting
that PW 2 admitted that he proceeded on getting prior information from
a Constable and the information was precisely one falling within the
purview of Section 42(1) of the Act, the Court decided that PW 2 cannot
wriggle out of the conditions stipulated in the said sub-section and
unhesitatingly found that there was non-compliance of Section 42 of the
Act. The State contended before the Bench that such non-compliance
with Section 42 of the Act cannot be visited with greater consequences
than what has been held by the Constitution Bench regarding non-
compliance with the conditions prescribed in Section 50 of the Act.
After referring to the dictum laid down in State of Punjab v. Baldev
Singh, 1999(3) RCR(Criminal) 533 : (1999)6 SCC 172, this Court held
that the views expressed with reference to Section 50 of the Act would
apply with reference to Section 42 also and consequently held as
follows :

"If the officer has reason to believe from personal knowledge or prior
information received from any person that any narcotic drug or
psychotropic substance (in respect of which an offence has been
committed) is kept or concealed in any building, conveyance or
enclosed place, it is imperative that the officer should take it down in
writing and he shall forthwith send a copy thereof to his immediate
official superior. The action of the officer, who claims to have exercised
it on the strength of such unrecorded information, would become
suspect, though the trial may not vitiate on that score alone. Nonetheless
the resultant position would be one of causing prejudice to the accused"

It was also contended by the learned counsel for the State of Gujarat that as
the accused did not dispute the factum of recovery of the "charas" from the
vehicle it does not matter that the information was not recorded at the first
instance by the police officer. The Court did not approve such contention
because it held that non-recording of information has in fact deprived the
accused as well as the Court of the material to ascertain what was the precise
information which PW 2 got before proceeding to stop the vehicle. It further
held that value of such an information, which was the earliest in point of time,
for ascertaining the extent of the involvement of the accused in the offence,
was of a high degree. It further held that it is not enough that PW 2 was able to
recollect from memory, when he was examined in court after the lapse of a
long time, as to what information he got before he proceeded to the scene.
Even otherwise, it held that the information which PW 2 recollected itself
tends to exculpate the appellant rather than inculpate him. Finally the court
held that non-recording of the vital information collected by the police at the
first instance can be counted as a circumstance in favour of the accused. On
analyzing this as well as the other materials, this court ultimately allowed the
appeal filed by the accused/appellant and set aside the conviction and sentence
passed on him by the High Court and restored the order of acquittal passed in
his favour by the trial court. The ratio in Abdul Rashid (supra) is that the non-
recording of vital information collected by the police at the first instance can
be counted as a circumstance in favour of the accused-appellant. The police
officer examined as a crucial witness, PW2, in that case admitted that he
proceeded to the spot only on getting information that somebody was trying to
transport a narcotic substance, but failed to take down the information in
writing. Nor did he apprise his superior officer of any such information either
then or later, much less send a copy of the information to the superior officer.
Thus, it was a case of absolute non-compliance with the requirements of
Section 42(1) and (2).

5. The facts in Sajan Abraham v. State of Kerala (Supra), were completely

different. The appellant/accused - Sajan Abraham was put on trial for an
offence punishable under Section 21 of the Act. As per the prosecution case,
on 10.10.1993 at about 7.45 p.m. the appellant was in possession of a
manufactured drug by the name of "Tidigesic" and three syringes for injecting
the same near Blue Tronics Junction at Palluruthy. The Head Constable, PW 3
and two other Constables of the Special Squad got information at about 7.00
p.m. on the said date that a person was selling injectable narcotic drugs near
Blue Tronics Junction at Palluruthy. They informed this to PW 5 - Sub-
Inspector of Police, Palluruthy Cusba Police Station, who was coming in a
jeep along with his police party. Thereafter PW 5 along with his police party
including PW 3 and other members of the Special Squad went to the scene of
occurrence found the accused standing on the road with a packet in his hand.
He was identified by PW 3 and apprehended by PW 5. On search, the packet
possessed by the appellant revealed that it contained 5 strips of 5 ampoules
each of Tidigesic and three injection syringes and a purse containing currency
note of Rs. 10. At the spot, one ampoule was taken as a sample for chemical
analysis and the said contraband articles were seized as per Ext. P-1 and
seizure mahazar was prepared at the spot. The appellant was also arrested. The
charge-sheet was submitted, the appellant pleaded not guilty.

The trial court found discrepancies in the evidence of the prosecution

witnesses and thus disbelieved the prosecution story, hence acquitted the
appellant. The High Court, on reappraisal of the evidence, came to the
conclusion that the Trial Court was not justified in acquitting the appellant. It
held that the prosecution has established with positive evidence beyond
reasonable doubt that the appellant has committed an offence punishable
under Section 21 of the Act, hence convicted and sentenced the appellant
before this court. Learned counsel for the appellant submitted before this
Court with vehemence that the prosecution has violated the mandatory
provisions under Section 42, Section 50 and Section 57 of Act and hence
conviction and sentence is liable to be set aside. The conclusion of this Court
with regard to Section 42 is as under :

"With regard to Section 42, the submission is that PW 5 has not

recorded the information given by PW 3 with respect to the appellant's
involvement before proceeding to arrest him in his case. This constitutes
violation of Section 42 of the Act. It is true under Section 42(1), the
officer concerned, when he has reason to believe from his personal
knowledge or information received from any person, is obliged to take
it down in writing if such information constitutes an offence punishable
under Chapter IV of the Act and send it forthwith to his immediate
superior. Such an officer is empowered to search any building,
conveyance and in case of any resistance, break up any door or remove
any obstacle for such entry, seizure of such drug or substance and to
arrest such person whom he has reason to believe to have committed
any offence punishable under the said Chapter. Thereafter such officer
has to send a copy of this information forthwith to his immediate
superior. Submission is that PW 5 after receiving the said information
had not communicated it to his immediate superior which constitutes
violation of Section 42. In construing any facts to find, whether the
prosecution has complied with the mandate of any provision which is
mandatory, one has to examine it with a pragmatic approach. The law
under the aforesaid Act being stringent to the persons involved in the
field of illicit drug traffic and drug abuse, the legislature time and again
has made some of its provisions obligatory for the prosecution to
comply with, which the courts have interpreted it to be mandatory. This
is in order to balance the stringency for an accused by casting an
obligation on the prosecution for its strict compliance. The stringency is
because of the type of crime involved under it, so that no such person
escapes from the clutches of the law. The court however while
construing such provisions strictly should not interpret them so literally
so as to render their compliance, impossible. However, before drawing
such an inference, it should be examined with caution and
circumspection. In other words, if in a case, the following of a mandate
strictly, results in delay in trapping an accused, which may lead the
accused to escape, then the prosecution case should not be thrown out."

"In the present case, PW 3 - Head Constable, got information with

 reference to the appellant only at about 7 p.m. that the person is selling
injectable narcotic drugs near Blue Tronics Junction, Palluruthy. When
he proceeded for Palluruthy Police Station to give this information to
his immediate superior, SI of Police, PW 5, he found PW 5 along with
his police party, who were on patrol duty coming, hence the said
information was communicated there by PW 3 to PW 5. Thereafter, PW
5 along with his police party and PW 3 immediately proceeded towards
the place where the appellant was standing. Had they not done so
immediately, the opportunity of seizure and arrest of the appellant
would have been lost. How PW 5 could have recorded the information
given by PW 3 and communicated to his superior while he was on
motion, on patrol duty, in the jeep before proceeding to apprehend him
is not understandable. Had they not acted immediately, the appellant
would have escaped. On these facts, this Court found that no inference
could be drawn that there has been violation of Section 42 of Act."

It is clear from Sajan Abraham (supra) that to enforce the law under the
Narcotic Drugs And Psychotropic Substances Act stringently against the
persons involved in illicit drug trafficking and drug abuse, the legislature has
made some of its provisions obligatory for the prosecution to comply with,
which the courts have interpreted to be mandatory. It is further clear that this
is in order to balance the stringency for an accused by casting an obligation on
the prosecution for its strict compliance. The court however while construing
such provisions strictly should not interpret them literally so as to render their
compliance impossible. It concluded that if in a case, the strict following of a
mandate results in delay in trapping an accused, which may lead the accused
to escape, then the prosecution case should not be thrown out. It is also clear
that when substantial compliance has been made it would not vitiate the
prosecution case.

6. In the light of the above decisions and the principles enunciated therein, it
would be appropriate to refer to Section of the Narcotic Drugs and
Psychotropic Substances Act which is relevant for the present purpose as it
stood before its amendment by Act 9 of 2001. It reads as under :-

"42. 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 or of the Border Security Force 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 personal knowledge or information given by any person
and taken down in writing that any narcotic drug, or psychotropic
substance, in respect of which an offence punishable under Chapter IV
has been committed or any document or other article which may furnish
evidence of the commission of such offence 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
Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance :

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 forthwith send a copy thereof to his immediate official
superior."

Sub-section (2) as replaced by Act 9 of 2001 is extracted below :

"(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."

7. It is well established that search and seizure are essential steps in the
armoury of an investigator in the investigation of a criminal case. The Code of
Criminal Procedure in various provisions, particularly, Sections 96 to 103 and
Section 165 recognizes the necessity and usefulness of search and seizure
during the investigation. Sub-section(1) of Section 41 of the Act provides that
a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate
of Second Class specially empowered by the State Government may issue a
warrant for the arrest of any person whom he has reason to believe to have
committed any offence punishable under Chapter IV. Sub-Section (2) of
Section 41 refers to issue of authorisation for similar purposes by officers of
departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc.

8. Sub-section (1) of Section 42 lays down that the empowered officer, if has a
prior information given by any person, should necessarily take it down in
writing and where he has reason to believe from his personal knowledge that
offences under Chapter IV have been committed or that materials which may
furnish evidence of commission of such offences are concealed in any
building etc. he may carry out the arrest or search, without warrant between
sunrise and sunset and he may do so without recording his reasons of belief.
The proviso to sub-section (1) of Section 42 lays down that if the empowered
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.

9. Sub-section (2) of Section 42 as it originally stood mandated that the

empowered officer who have taken down information in writing or records the
grounds of his belief under the proviso to sub-section (1), should send a copy
of the same to his immediate official superior forthwith. But after the
amendment in the year 2001, the period within which such report has to be
sent was specified to be 72 hours. Section 43 deals with the power of seizure
and arrest of the suspect in a public place.

10. We may note that Abdul Rashid followed State of Punjab v. Balbir Singh,
1994(1) RCR(Criminal) 736 : 1994(3) SCC 299.

We extract below the passage that was followed :

 (2-C) Under Section 42(1), the empowered officer if has a prior
information given by any person, that should necessarily be taken down
in writing. But if he has reason to believe from personal knowledge that
offences under Chapter IV have been committed or materials which
may furnish evidence of commission of such offences are concealed in
any building etc., he may carry out the arrest or search without a
warrant between sunrise and sunset and this provision does not mandate
that he should record his reasons of belief. But under the proviso to
Section 42(1), if such officer has to carry out such search between
sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the

same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(1), such empowered officer who takes down any
information in writing or records the grounds under proviso to Section
42(1) should forthwith send a copy thereof to his immediate official
superior. If there is total non-compliance of this provision the same
affects the prosecution case. To that extent it is mandatory. But if there
is delay whether it was undue or whether the same has been explained
or not, will be a question of fact in each case."

Abdul Rashid was followed in Koluttumottil Razak v. State of Kerala,

2000(4) SCC 465, which was also a case of total non-compliance with section
42, as the Sub-Inspector of Police neither reduced the information received
into writing nor informed the official superior about it.

11. A careful examination of the facts in Abdul Rashid and Sajan Abraham
shows that the decisions revolved on the facts and do not really lay down
different prepositions of law. In Abdul Rashid, there was total non-compliance
with the provision of section 42. The police officer neither took down the
information as required under section 42(1) nor informed his immediate
official superior, as required by Section 42(2). It is in that context this Court
expressed the view that it was imperative that the police officer should take
down the information and forthwith send a copy thereof to his immediate
superior officer and the action of the police officer on the basis of the
unrecorded information would become suspect though the trial may not be
vitiated on that score alone. On the other hand, in Sajan Abraham, the facts
were different. In that case, it was very difficult, if not impossible for the Sub-
Inspector of police to record in writing the information given by PW-3 and
send a copy thereof forthwith to his official superior, as the information was
given to him when he was on patrol duty while he was moving in a jeep and
unless he acted on the information immediately, the accused would have
escaped. The Sub-Inspector of Police therefore acted, without recording the
information into writing, but however, sent a copy of the FIR along with other
records regarding arrest of the accused immediately to his superior officer. It is
in these circumstances that this Court held that the omission to record in
writing the information received was not a violation of Section 42.

12. The material difference between the provisions of Sections 42 and 43 is

that Section 42 requires recording of reasons for belief and for taking down of
information received in writing with regard to the commission of an offence
before conducting search and seizure, Section 43 does not contain any such
provision and as such while acting under Section 43 of the Act, the
empowered officer has the power of seizure of the article etc. and arrest of a
person who is found to be in possession of any narcotic drug or psychotropic
substance in a public place where such possession appears to him to be
unlawful.

13. Section 50 prescribes the conditions under which search of a person shall
be conducted. Sub-section (1) provides that when the empowered officer is
about to search any suspected person, he shall, if the person to be searched so
requires, take him to the nearest gazetted officer or the Magistrate for the
purpose. Under sub-section (2) it is laid down that if such request is made by
the suspected person, the officer who is to take the search, may detain the
suspect until he can be brought before such gazetted officer or the Magistrate.
Sub-section (3) lays down that when the person to be searched is brought
before such a gazetted officer or the Magistrate and such gazetted officer or
the Magistrate finds that there are no reasonable grounds for search, he shall
forthwith discharge the person to be searched, otherwise, he shall direct that
the search be made.

14. The Constitution Bench in Baldev Singh (supra) considered the

compliance of Section 50 of the Act. While doing so, the Bench also
considered the provisions of Sections 41 and 42 of the Act. It observed as
follows :

"8. Section of the Narcotic Drugs and Psychotropic Substances Act

provides that a Metropolitan Magistrate or a Magistrate of the First
Class or any Magistrate of the Second Class specially empowered by
the State Government in this behalf, may issue a warrant for the arrest
of and for search of any person whom he has reason to believe to have
committed any offence punishable under Chapter IV. Vide sub-section
(2) the power has also been vested in gazetted officers of the
 Departments of Central Excise, Narcotics, Customs, Revenue
Intelligence or any other department of the Central Government or of
the Border Security Force, empowered in that behalf by a general or
special order of the State Government to arrest any person, who he has
reason to believe to have committed an offence punishable under
Chapter IV or to search any person or conveyance or vessel or building
etc. with a view to seize any contraband or document or other article
which may furnish evidence of the commission of such an offence,
concealed in such building or conveyance or vessel or place.

9. Sub-section (1) of Section 42 lays down that the empowered officer,

if has a prior information given by any person, he should necessarily
take it down in writing and where he has reason to believe from his
personal knowledge that offences under Chapter IV have been
committed or that materials which may furnish evidence of commission
of such offences are concealed in any building etc. he may carry out the
arrest or search, without a warrant between sunrise and sunset, and he
may do so without recording his reasons of belief.

10. The proviso to sub-section (1) lays down that if the empowered
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.
Vide sub-section (2) of Section 42, the empowered officer who takes
down information in writing or records the grounds of his belief under
the proviso to sub-section (1), shall forthwith send a copy of the same to
his immediate official superior. Section 43 deals with the power of
seizure and arrest of the suspect in a public place. The material
difference between the provisions of Section 43 and Section 42 is that
whereas Section 42 requires recording of reasons for belief and for
taking down of information received in writing with regard to the
commission of an offence before conducting search and seizure, Section
43 does not contain any such provision and as such while acting under
Section 43 of the Act, the empowered officer has the power of seizure of
the article etc. and arrest of a person who is found to be in possession of
any narcotic drug or psychotropic substance in a public place where
such possession appears to him to be unlawful."

It is to be noted that Baldev Singh's case (supra) has dealt with Section 50 of
the Act and the effect of non-compliance of the same. It was held that the
same provisions of Section 50 containing certain protection and safeguards
implicitly make it imperative and obligatory and cast a duty on the
investigating officer to ensure that search and seizure of the person concerned
is conducted in a manner prescribed by Section 50. The unamended Section 50
as existed during that period is as follows :

"Section 50 - Conditions under which search of persons shall be

conducted

(1) When any officer duly authorised under section 42 is about to search
any person under the provisions of section 41, section 42 or section 43,
he shall, if such person so requires, take such person without
unnecessary delay to the nearest Gazetted Officer of any of the
departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he
can bring him before the Gazetted Officer or the Magistrate referred to
in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for search,
forthwith discharge the person but otherwise shall direct that search be
made.

(4) No female shall be searched by anyone excepting a female."

The safeguard or protection to be searched in the presence of a gazetted officer

or a Magistrate has been incorporated in Section 50 to ensure that persons are
only searched with a good cause and also with a view to maintain the veracity
of evidence derived from such search. But this strict procedural requirement
has been diluted by the insertion of sub-section (5) and (6) to the Section by
Act 9 of 2001, by which the following sub-sections were inserted
accordingly :

"(5) When an officer duly authorised under section 42 has reason to

believe that it is not possible to take the person to be searched to the
nearest Gazetted Officer or Magistrate without the possibility of the
person to be searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article or document,
he may, instead of taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under section of
the Code of Criminal Procedure, 1973 (2 of 1974).
 (6) After a search is conducted under sub-section (5), the officer shall
record the reasons for such belief which necessitated such search and
within seventy-two hours send a copy thereof to his immediate official
superior."

Through this amendment the strict procedural requirement as mandated by

Baldev Singh's case was avoided as relaxation and fixing of the reasonable
time to send the record to superior official as well as exercise of Section of
Criminal Procedure Code was included by the legislature. The effect conferred
upon the previously mandated strict compliance of Section 50 by Baldev
Singh's case was that the procedural requirements which may have
handicapped an emergency requirement of search and seizure and give the
suspect a chance to escape were made directory based on the reasonableness
of such emergency situation. Though it cannot be said that the protection or
safeguard given to the suspects have been taken away completely but certain
flexibility in the procedural norms were adopted only to balance an urgent
situation. As a consequence the mandate given in Baldev Singh's case is
diluted.

15. Under Section 42(2) as it stood prior to amendment such empowered

officer who takes down any information in writing or records the grounds
under proviso to Section 42(1) should forthwith send a copy thereof to his
immediate official superior. If there is total non-compliance of this provision
the same would adversely affect the prosecution case and to that extent it is
mandatory. But if there is delay whether it was undue or whether the same has
been explained or not, will be a question of fact in each case, it is to be
concluded that the mandatory enforcement of the provisions of Section 42 of
the Act non-compliance of which may vitiate a trial has been restricted only to
the provision of sending a copy of the information written down by the
empowered officer to immediate official superior and not to any other
condition of the Section. Abdul Rashid (supra) has been decided on
01.02.2000 but thereafter Section 42 has been amended with effect from
02.10.2001 and the time of sending such report of the required information has
been specified to be within 72 hours of writing down the same. The relaxation
by the legislature is evidently only to uphold the object of the Act. The
question of mandatory application of the provision can be answered in the
light of the said amendment. The non-compliance of the said provision may
not vitiate the trial if it does not cause any prejudice to the accused.

16. The advent of cellular phones and wireless services in India has assured
certain expectation regarding the quality, reliability and usefulness of the
instantaneous messages. This technology has taken part in the system of police
administration and investigation while growing consensus among the policy
makers about it. Now for the last two decades police investigation has gone
through a sea-change. Law enforcement officials can easily access any
information anywhere even when they are on the move and not physically
present in the police station or their respective offices. For this change of
circumstances, it may not be possible all the time to record the information
which is collected through mobile phone communication in the
Register/Records kept for those purposes in the police station or the respective
offices of the authorised officials in the Act if the emergency of the situation
so requires. As a result, if the statutory provisions under Section 41(2) and
42(2) of the Act of writing down the information is interpreted as a mandatory
provision, it will disable the haste of an emergency situation and may turn out
to be in vain with regard to the criminal search and seizure. These provisions
should not be misused by the wrongdoers/offenders as a major ground for
acquittal. Consequently, these provisions should be taken as discretionary
measure which should check the misuse of the Act rather than providing an
escape to the hardened drug-peddlers.

17. In conclusion, what is to be noticed is Abdul Rashid did not require literal
compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham 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.

(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.

18. We answer the reference in the manner aforesaid. Let the appeals be now
placed for disposal before the appropriate Bench.

Order accordingly.