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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1375 OF 2008

Kishan Chand     ... Appellant

Versus

State of Haryana     ...  Respondent

J U D G M E N T

Swatanter Kumar, J.

1. The  Judge,  Special  Court,  Kaithal,  Haryana  vide  his  

judgment  dated  31st July,  2002  rendered  the  judgment  of  

conviction and passed an order of sentence under Section 18  

of the Narcotics Drugs and Psychotropic Substances Act, 1985  

(for short “the Act”) and awarded the punishment to undergo  

Rigorous Imprisonment for 10 years and to pay a fine of Rs. 1  

lakh, and in default  thereto and to further undergo rigorous  

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imprisonment  for  a  period  of  two  years  to  accused  Kishan  

Chand, while it acquitted the other accused Ramphal as the  

prosecution  had  failed  to  prove  its  charge  against  that  

accused.

2. Upon appeal, the judgment of the Trial Court was affirmed  

by the High Court as it was of the opinion that the judgment of  

the Trial Court did not warrant any interference. Thus, by its  

judgment dated 22nd April, 2008, the High Court sustained the  

conviction and sentence of the accused.   Aggrieved from the  

judgment of the Division Bench of the High Court, the accused  

filed the present appeal.

3. Before  we  dwell  upon  the  merit  or  otherwise  of  the  

contentions  raised  before  us,  it  will  be  appropriate  for  the  

Court to fully narrate the facts resulting in the conviction of the  

appellant.   On  19th July,  2000,  a  secret  information  was  

received  by  Sub-Inspector  Kaptan  Singh,  PW7  who  at  the  

relevant time was the Station House Officer of Police Station,  

Cheeka and was present near the bus stand Bhagal in relation  

to investigation of a crime.   Assistant Sub-Inspector Mohinder  

Singh was also present there.  According to the information  

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received the  accused/appellant  Kishan Chand  and  Ramphal,  

the other accused, used to smuggle opium on their Scooter No.  

HR 31 B 1975.    On that day, they were coming on Kakrala-

Kakrali Road and were on their way to Bhagal.   It was further  

informed  that  upon  nakabandi,  they  could  be  caught  red  

handed and a large quantity of opium could be recovered from  

the  scooter.     Kaptan  Singh,  PW7,  then  reached  T-Point,  

turning Theh Banehra and made the nakabandi.   After 20-25  

minutes, both the accused came on scooter from the side of  

Kakrala-Kakrali.    Accused  Kishan  Chand  was  driving  the  

scooter,  whereas  accused  Ramphal  was  the  pillion  rider.  

Suspecting the presence of narcotic substance in the scooter of  

the accused, a notice under Section 50 of the Act, Ext. PC was  

given to both the accused and they were asked to get  the  

scooter searched in the presence of a Gazetted Officer or a  

Magistrate.  Ext.  P  

C, was signed by both the accused which was also signed by  

Assistant  Sub-Inspectors  Manohar  Lal  (PW6)  and  Mohinder  

Singh.  The accused vide their reply Ext. PD opted to give the  

search in the presence of a Gazetted Officer. Ext. PD was also  

signed by the witnesses in addition to the accused.

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4. Thereafter,  the  investigating  officer  called  for  Subhash  

Seoran PW5, Tehsildar-cum-Executive Magistrate, Guhla on the  

spot,  who then  directed  PW7 to  conduct  the  search  of  the  

scooter.   The scooter was having a Diggi (Tool box) and upon  

checking the same, opium was recovered which was wrapped  

in a polythene.  From the recovered opium, 50 grams opium  

was  separated  for  the  purposes  of  sample  and  a  separate  

parcel  was  made  of  the  same.    On  weighing,  the  residue  

opium was found to be 3 kg and 750 grams.   It was sealed in a  

separate  parcel  with  the  seals  SS  of  Tehsildar,  Subhash  

Seoran, PW5 and KS of the investigating officer, Kaptan Singh,  

PW7.

5. Kaptan Singh handed over his seal KS to ASI Manohar Lal,  

PW6  whereas  PW5  retained  his  seal  with  him.    The  case  

property,  sample  parcel,  specimen  seal  impressions  were  

taken into custody by recovery memo Ext. PG, along with the  

scooter.    It was attested by the Tehsildar and other witnesses.  

A  rukka, Ext. PA was sent to the police station, where on the  

basis of the same, a formal First Information Report Ext. PA/1  

was recorded.  Rough site plan, Ext. PF was also prepared by  

the  Investigating  Officer.   Thereafter,  the  accused  were  

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arrested.  The statements of the witnesses under Section 161  

of  the  Code  of  Criminal  Procedure,  1973  (for  short  “CrPC”)  

were  recorded.  After  completion  of  the  investigation  at  the  

spot, the case property was deposited with the MHC along with  

the scooter and seal impressions on the same day.   A report  

under Section 57 of the Act Ext. PG was also sent to the higher  

officer.    After  completing  the  investigation,  a  report  under  

Section 173 CrPC was prepared by PW7 and submitted before  

the court of competent jurisdiction.

6. The prosecution examined eight witnesses including Shri  

S.K.  Nagpal,  Senior  Scientific  Officer,  FSL,  Madhuban.  The  

accused in his statement under Section 313 CrPC refuted all  

allegations  of  the  prosecution  levelled  against  them  and  

pleaded innocence.    Accused Kishan Chand stated that ASI  

Balwan  Singh  was  resident  of  his  village  and  there  was  a  

dispute  regarding  land  between  the  two  families.    The  

possession of the land had been taken by the family of the  

accused from ASI Balwan Singh.   Thereafter, he had gone to  

see  Sarpanch  Bansa  Singh of  Village  Bhoosla  in  connection  

with some personal work and at about 4 p.m., he was going  

towards Village Kalar Majra and on the way, Joginder, son of  

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Dewa Singh met him at the Buss Adda Bhagal and when they  

were taking tea in a shop, then two police officials came in a  

civil dress and asked them to go to police post Bhagal as he  

was  required  by  ASI  Mohinder  Singh  Incharge  Police  Post  

Bhagal and, thus, a false case was planted against him.

7. As  already  noticed,  the  Trial  Court  acquitted  accused  

Ramphal, but convicted Kishan Chand and the conviction was  

upheld by the High Court giving rise to the filing of the present  

appeal.    

8. At this stage itself, we would like to notice certain findings  

of the Trial  Court which were recorded, while acquitting the  

accused Ramphal and convicting accused Kishan Chand.

“33.  The  learned  defence  counsel  further  argued  that  in  the  present  case  inspite  of  secret  information  the  information  was  not  sent  to  the  higher  officer  as  required  under  Section 42(2) of the NDPS Act nor the case was  registered.    As  such,  on  this  sole  ground,  accused are entitled to acquittal.  The reliance  has been placed on Beckodan Abdul Rahiman  Versus  State  of  Kerala,  2002  (2)  RCR  (Criminal)-385,  where  in  that  case,  police  recovered opium from accused on receipt  of  secret information on telephone.   Information  was not reduced in writing as required under  section 42 of the NDPS Act.    The conviction  was set aside.   The reliance was also placed  

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on Lamin Bojang versus State of Maharashtra,  1997 (2) RCR – 294.

34. Admittedly in the present case, the secret  information was received against the accused.  The  investigation  officer  did  not  reduce  the  secret information in writing nor send the same  to the higher officer or to the police station for  registration of the case.   Non-compliance of  section  42(2)  is  not  fatal  to  the  prosecution  case  in  the  present  case,  because  had  the  investigating  officer  tried  to  take  down  the  secret  information  in  writing  and  send  the  same to the police officer in that eventuality,  there was possibility of the accused to escape  as  they  were  to  come on  a  scooter.     The  statement of investigating officer proves that  after picketing within 20 minutes, the accused  appeared on the scooter.    Since,  there was  possibility of the accused to escape, so in such  a situation, if the investigating officer did not  reduce into writing the secret information and  send the same to the superior officer, then it  cannot  be  said  that  any  prejudice  has  been  used  to  the  accused,  particularly,  when  the  recovery has been effected in the presence of  Subhash Seoran Teshildar who is an Executive  Magistrate.   The Hon’ble Supreme Court in a  case  Sajjan  Abraham  versus  State  of  Kerala  [2001 (2) RCR (Criminal)-808], wherein it was  observed as under:-

“In construing any facts to find, whether  prosecution  has  complied  with  the  mandate  of  any  provision  which  is  mandatory,  one  has  to  examine  it  with  pragmatic approach.   The law under the  aforesaid  act  being  stringent  to  the  persons involved in the field of illicit drug  abuse, the legislature time and again has  made  some of  the  provisions  obligatory  for the prosecution to comply, which the  

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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  law.    The  court  however, while construing such provisions  strictly should not interpret it so, literally  so  as  to  render  its  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  mandate  strictly,  results  in  delay  in  trapping an accused, which may lead the  accused to escape, then prosecution case  should not be thrown out.”  

9. The  Division  Bench  of  the  High  Court  confirmed  the  

finding recorded by the Trial Court.  It also recorded that the  

accused was in motion at the time when the secret information  

was received.   Since secret  information was from a reliable  

source, PW7 acted swiftly and arrested the accused and under  

these  circumstances,  the  secret  information  report  was  not  

recorded by the investigating officer immediately nor was it  

sent  to  the  superior  officer.    Therefore,  in  these  

circumstances,  it  is  to  be  seen  whether  any  prejudice  was  

caused to the accused or not.

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10. Relying upon the following paragraph of the judgment of  

this Court regarding ‘substantial compliance’ in Sajan Abraham  

v. State of Kerala [(2001) 6 SCC 692], the High Court sustained  

the order of the Trial Court.

“6........  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.”

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11. While  challenging  the  above concurrent  findings of  the  

courts,  the  learned counsel  appearing  for  the  appellant  has  

raised the following contentions for consideration by the court.

1. Apparently  and,  in  fact,  admittedly  there  is  no  

compliance with the provisions of sub-sections (1) and  

(2) of Section 42 of the Act and they are mandatory  

and not directory.   Once, there is non-compliance of  

these mandatory provisions, the appellant is entitled to  

acquittal.   In this regard, the counsel for the appellant  

has relied upon the judgment of this court in the case  

of  Rajinder Singh v. State of Haryana [(2011) 8 SCC  

130] and the Constitution Bench judgment in the case  

of  Karnail  Singh  v.  State  of  Haryana [(2009)  8  SCC  

539].

2. Once, on similar facts and evidence,  and particularly  

for non-production of key of the  diggy of the scooter,  

the  accused  Ramphal  was  acquitted,  the  appellant  

could  not  have  been  convicted  by  the  courts,  thus,  

there is inbuilt contradiction in the judgments and they  

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suffer from error in appreciation of evidence as well as  

in application of law.

3. The  entire  recovery  is  vitiated  as  PW5,  Subhash  

Seoran, Tehsildar-cum-Executive Magistrate, was never  

present at the site and there was no compliance to the  

provisions  of  Section  50  of  the  Act  as  stated.    No  

independent witness had been associated which itself  

will  show that  the prosecution had not been able  to  

establish its  case beyond reasonable doubt and that  

the appellant had been falsely implicated in the case.

12. To the contra, the submission on behalf of the State of  

Haryana is that the prosecution has been able to establish its  

case beyond reasonable doubt.   There had been substantial  

compliance to the provisions of Section 42 of the Act.   The  

compliance with the provisions of Section  57 and the Report  

which was sent vide Ext. PG on 20th July, 2002, fully establishes  

the substantial compliance to the provisions of Section 42 of  

the Act.   The provisions of Section 50 had also been complied  

with and,  therefore,  the contentions raised on behalf  of the  

appellant have no merit.   On the other hand the question of  

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falsely implicating the appellant does not arise as the secret  

information was reliable and has so been established by the  

prosecution evidence.   The judgment under appeal, according  

to the counsel for the State, does not call for any interference.  

13. First and the foremost, we will deal with the question of  

non-compliance with Section 42(1) and (2) of the Act.   It is  

necessary  for  us  to  examine  whether  factually  there  was a  

compliance or non-compliance of the said provisions and, if so,  

to what effect.   In this regard, there can be no better evidence  

than the statement of Investigating Officer PW7 himself.   PW7,  

Kaptan Singh in his statement while referring to the story of  

the  prosecution  as  noticed  above,  does  not  state  in  

examination-in-chief that he had made the report immediately  

upon receiving the secret  information and had informed his  

senior officers.

14. In his examination-in-chief, such statement is conspicuous  

by its very absence.    On the contra, in his cross-examination  

by the defence, he clearly admits as under:-

“....the  distance  between  the  place  of  secret  information and the place of recovery is about 1½  kilometre.   Secret  information  was  not  reduced  

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into the writing so no copy of the same was sent  to the higher officer.  I did not ask any witness of  the public in writing to join the raiding party”

15. The learned Trial Court in para 34 of its judgment clearly  

recorded  that  admittedly  in  the  present  case,  the  secret  

information  was  received  against  the  accused.   The  

Investigation Officer did not reduce the secret information in  

writing nor did he send the same to the higher officer or to the  

police station for registration of the case.  However,  stating  

that if this was done, there was possibility that the accused  

escaped,  the  trial  court  observed  that  if  the  Investigating  

Officer did not reduce into writing the secret information and  

sent the same to the superior officer, then in light of the given  

circumstances,  it  could  not  be  said  that  any  prejudice  was  

caused to the accused.

16. We are  unable  to  contribute  to  this  interpretation  and  

approach of the Trial Court and the High Court in relation to  

the provisions of sub-Section (1) and (2) of Section 42 of the  

Act.    The  language  of  Section  42  does  not  admit  any  

ambiguity.   These  are  penal  provisions  and  prescribe  very  

harsh  punishments  for  the  offender.   The  question  of  

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substantial  compliance of these provisions would amount  to  

misconstruction of these relevant provisions.   It is a settled  

canon of interpretation that the penal provisions, particularly  

with harsher  punishments  and with clear  intendment  of the  

legislature  for  definite  compliance,  ought  to  be  construed  

strictly.    The doctrine  of  substantial  compliance  cannot  be  

called in aid to answer such interpretations. The principle of  

substantial compliance would be applicable in the cases where  

the  language  of  the  provision  strictly  or  by  necessary  

implication admits of such compliance.

17. In our considered view, this controversy is no more  res  

integra  and  stands  answered  by  a  Constitution  Bench  

judgment of this Court in the case of Karnail Singh (supra).   In  

that  judgment,  the  Court  in  the  very  opening  paragraph  

noticed that in the case of  Abdul Rashid Ibrahim Mansuri  v.   

State of Gujarat [(2000) 2 SCC 513], a three Judge Bench of  

the Court had held that compliance of Section 42 of the Act is  

mandatory and failure to take down the information in writing  

and  sending  the  report  forthwith  to  the  immediate  officer  

superior may cause prejudice to the accused.   However, in the  

case of Sajan Abraham (supra), again a Bench of three Judges,  

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held  that  this  provision  is  not  mandatory  and  substantial  

compliance was sufficient. The Court noticed, if there is total  

non-compliance of the provisions of Section 42 of the Act, it  

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 was explained or not, will be a question of  

fact in each case.    The Court in paragraph 35 of the judgment  

held as under:-

35. In conclusion, what is to be noticed is  that  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  Sections  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 register concerned  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  

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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  with  requirements of sub-sections (1) and (2) of  Section  42  is  impermissible,  delayed  compliance  with  satisfactory  explanation  about  the  delay  will  be  acceptable  compliance with 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 of 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  

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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. Following the above judgment, a Bench of this Court in  

the case of Rajinder Singh (supra) took the view that total non-

compliance  of  the  provisions  of  sub-Sections  (1)  and  (2)  of  

Section 42 of the Act is impermissible but delayed compliance  

with  a  satisfactory  explanation  for  delay  can,  however,  be  

countenanced.

19. The provisions like Section 42 or 50 of the Act are the  

provisions  which  require  exact  and  definite  compliance  as  

opposed  to  the  principle  of  substantial  compliance.    The  

Constitution Bench in the case of Karnail Singh (supra) carved  

out  an  exception  which  is  not  founded  on  substantial  

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compliance  but  is  based  upon  delayed  compliance  duly  

explained by definite and reliable grounds.

20. While dealing with the requirement of complying with the  

provisions of Section 50 of the Act  and keeping in  mind its  

mandatory  nature,  a  Bench of  this  Court  held  that  there  is  

need  for  exact  compliance  without  any  attribute  to  the  

element of prejudice, where there is an admitted or apparent  

non-compliance.    The Court in the case of  State of Delhi v.  

Ram Avtar alias Rama [(2011) 12 SCC 207], held as under:-

26.   The  High  Court  while  relying  upon  the  judgment  of  this  Court  in  Baldev  Singh and  rejecting the theory of substantial compliance,  which  had  been  suggested  in  Joseph  Fernandez,  found that  the  intimation did  not  satisfy the provisions of Section 50 of the Act.  The Court reasoned that the expression “duly”  used  in  Section  50  of  the  Act  connotes  not  “substantial”  but  “exact  and  definite  compliance”. Vide Ext.  PW 6/A, the appellant  was  informed  that  a  gazetted  officer  or  a  Magistrate  could  be  arranged  for  taking  his  search, if he so required. This intimation could  not  be  treated  as  communicating  to  the  appellant that he had a right under law, to be  searched  before  the  said  authorities.  As  the  recovery itself was illegal, the conviction and  sentence has to be set aside.

27.   It  is  a  settled  canon  of  criminal  jurisprudence that when a safeguard or a right  

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is provided, favouring the accused, compliance  therewith  should  be  strictly  construed.  As  already  held  by  the  Constitution  Bench  in  Vijaysinh  Chandubha  Jadeja,  the  theory  of  “substantial  compliance”  would  not  be  applicable  to  such  situations,  particularly  where the punishment provided is very harsh  and is likely to cause serious prejudice against  the suspect. The safeguard cannot be treated  as a formality, but it must be construed in its  proper perspective, compliance therewith must  be ensured. The law has provided a right to the  accused,  and  makes  it  obligatory  upon  the  officer concerned to make the suspect aware  of such right. The officer had prior information  of  the  raid;  thus,  he  was  expected  to  be  prepared  for  carrying  out  his  duties  of  investigation in accordance with the provisions  of Section 50 of the Act. While discharging the  onus of Section 50 of the Act, the prosecution  has to establish that information regarding the  existence of such a right had been given to the  suspect. If such information is incomplete and  ambiguous,  then  it  cannot  be  construed  to  satisfy the requirements of Section 50 of the  Act.  Non-compliance  with  the  provisions  of  Section 50 of the Act would cause prejudice to  the  accused,  and,  therefore,  amount  to  the  denial of a fair trial.

21. When there is total and definite non-compliance of such  

statutory  provisions,  the  question  of  prejudice  loses  its  

significance.  It will  per se amount to prejudice.   These are  

indefeasible,  protective  rights  vested  in  a  suspect  and  are  

incapable  of being  shadowed on the  strength of  substantial  

compliance.

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22. The  purpose  of  these  provisions  is  to  provide  due  

protection to a suspect  against false implication and ensure  

that these provisions are strictly complied with to further the  

legislative mandate of fair investigation and trial.   It will be  

opposed to the very essence of criminal jurisprudence, if upon  

apparent and admitted non-compliance of these provisions in  

their  entirety,  the  Court  has  to  examine  the  element  of  

prejudice.   The element of prejudice is of some significance  

where provisions are directory or are of the nature admitting  

substantial  compliance.    Where  the  duty  is  absolute,  the  

element of prejudice would be of least relevancy.   Absolute  

duty coupled with strict compliance would rule out the element  

of  prejudice  where  there  is  total  non-compliance  of  the  

provision.

23. Reverting  to  the  facts  of  the  present  case,  we  have  

already noticed that both the Trial Court and the High Court  

have proceeded on the  basis  of substantial  compliance and  

there  being  no  prejudice  to  the  accused,  though  clearly  

recording that it was an admitted case of total non-compliance.  

The statement of PW7 puts the matter beyond ambiguity that  

there was ‘total non-compliance of the statutory provisions of  

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Section 42 of the Act’.   Once, there is total non-compliance  

and  these  provisions  being  mandatory  in  nature,  the  

prosecution case must fail.

24. Reliance placed by the learned counsel appearing for the  

State  on  the  case  of  Sajan  Abraham  (supra)  is  entirely  

misplaced, firstly in view of the Constitution Bench judgment of  

this Court in the case of  Karnail Singh (supra).   Secondly, in  

that case the Court was also dealing with the application of the  

provisions of Section 57 of the Act which are worded differently  

and have different requirements,  as opposed to Sections 42  

and 50 of the Act.   It is not a case where any reason has come  

in evidence as to why the secret information was not reduced  

to  writing  and  sent  to  the  higher  officer,  which  is  the  

requirement  to  be  adhered  to  ‘pre-search’.  The question  of  

sending it immediately thereafter does not arise in the present  

case,  as  it  is  an  admitted  position  that  there  is  total  non-

compliance of Section 42 of the Act.  The sending of report as  

required under Section 57 of the Act on 20th July, 2000 will be  

no  compliance,  factually  and/or  in  the  eyes  of  law  to  the  

provisions of Section 42 of the Act.   These are separate rights  

and protections available to an accused and their compliance  

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has to be done in accordance with the provisions of Sections  

42, 50 and 57 of the Act.   They are neither inter-linked nor  

inter-dependent so as to dispense compliance of one with the  

compliance of another.  In fact, they operate in different fields  

and at different stages.  That distinction has to be kept in mind  

by the courts while deciding such cases.

25. Now,  we  will  deal  with  a  serious  doubt  that  has  been  

pointed out on behalf of the appellant in the recovery and the  

very  presence  of  PW5,  Subhash  Seoran,  at  the  time  of  

recovery.   The prosecution has not been able to establish this  

aspect of the case beyond reasonable doubt.   According to  

PW7 after stopping the scooter of the accused at T-Point, Theh  

Banehra,  he  had sent  for  PW5 who had reached there  and  

recovery was effected in his presence after giving option to the  

accused as required under Section 50 of the Act.    We do not  

consider  it  necessary  to  deal  with  the  other  contentions  

including the plea taken with regard to compliance of Section  

50 of the Act.  We would only confine ourselves in regard to the  

doubt  that  has  been created  in  recovery of  the  contraband  

from the custody of the accused.

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26. PW5 in his statement had categorically stated that he had  

come to the site in his official jeep No. HR 09 7007 driven by  

DW1, Desraj and no other person was in the jeep.   He claimed  

to have left the spot at about 11.15 a.m. on 19th July, 2000.  

The accused had contended that he was falsely implicated, no  

independent witness was associated in the recovery or in the  

entire investigation and lastly that no recovery was effected  

and  even PW5 has  falsely  deposed before  the  court.     To  

support  this  contention,  the  accused  had  examined  DW-1  

Desraj, the driver of the car along with log book of Jeep No. HR  

09 7007.   It will be interesting to note the examination in chief  

of this witness.

“I have brought the Log Book of Jeep no. HR09- 7007.   I am working as driver in Tehsil Office, at  Guhla.   In this Log Book at sr. no. 422 dated  19.7.2K, the vehicle was used by Naib Tehsildar  from 12.30 P.M. to 7 P.M. and it was used in the  area  of  Kamehri,  Baupur,  Gagarpur,  Harnoli,  Landaheri  and  the  beginning  of  journey,  the  reading of speedometer was 85056 and closing  of  the  journey  was  85173.    Total  numbers  covered 117  kilometers.    The Naib  Tehsildar  was  Sh.  Batti  Sahib,  of  Guhla.    Except  this  journey,  the  said  vehicle  has  not  gone  anywhere.   I  had not gone with Sh. Subhash  Seoran, the then Tehsildar at the area of village  Theh  Banehra  at  its  T-point  or  in  that  area.  Copy of entry in the Log book is Ex. D1, nor I  went in this vehicle with Tehsildar Sh. Subhash  

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Seoran in the area of village Bhagal or at the  turn of vill.  Theh Banehra.    The entry of the  movement of the vehicle is definitely recorded  in the Log book.   It  is correct that I  had not  gone  anywhere  with  Tehsildar  Guhla  Sh.  Subhash Seoran on 19.7.2000.

It is incorrect to suggest that the entries in the  Log Book has not been made correctly and that  every  movements  of  the  vehicles  are  not  mentioned in this log book, rather it has been  made later on as per convenience of the driver.  It  is  incorrect  to  suggest  that  on  the  alleged  day, i.e. 19.7.2000, the vehicle was used by the  Tehsildar  Sh.  Subhash  Seoran  and  I  was  also  with  him.    It  is  further  incorrect  that  on  19.7.2000,  I  had  visited  the  area  of  village  Bhagal  at  the  turning  of  vill.  Theh  Banehra  along  with  Tehsildar  Subhash  Seoran  in  the  aforesaid jeep.”  

27. In  his  cross-examination,  except  the  suggestion  that  

every movement of the vehicles is not entered in the log book  

and  that  the  vehicle  was used  by  PW7 on  that  day,  which  

suggestion he categorically denied, no other question was put  

to  this  witness.    One  has  no  reason  to  disbelieve  the  

statement of DW1 particularly when he produced the log book  

maintained in normal course of business.  The log book showed  

a clear entry at serial no. 422 dated 19th July, 2000 where the  

vehicle in question was stated to be used by Mr. Bhatti, Naib  

Tehsildar, from 12.30 p.m. to 7.00 p.m. and was driven for 117  

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kms.  PW5, Tehsildar-cum-Executive Magistrate, in fact, did not  

use the official vehicle on that day as per the log book.  The  

witness  even  gave  the  exact  reading  of  the  meter  of  the  

vehicle which showed that it was driven for 117 kilometers on  

that date by the Naib Tehsildar, not even  anywhere near to  

the  area  where  the  accused  is  alleged  to  have  been  

apprehended  It was also stated that except that journey, the  

vehicle had gone nowhere.   He specifically stated that he had  

never  taken  PW5  to  the  place  in  question.    Once,  the  

statement of this witness is examined with the statement of  

PW7,  that  he  did  not  associate  any  private  person,  

independent witness in the recovery or in the entire process of  

investigation and that he did not even record such a fact in this  

proceedings  casts  a  shadow of  doubt  over  the  case  of  the  

prosecution.   Total  non-compliance  of  Section  42,  non-

involvement of any independent witness at any stage of the  

investigation and the presence of PW5 at  the spot being so  

very  doubtful,  thus,  compel  this  Court  to  hold  that  the  

prosecution  has  failed  to  prove  its  case  beyond reasonable  

doubt.

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28. As already noticed, we do not propose to discuss other  

arguments raised on behalf  of the appellant.   We may also  

notice here that both the High Court and the Trial Court have  

noticed the above evidence as well as its legal position.   Thus,  

the Trial Court as well as the High Court has fallen in error of  

law as well as that of appreciation of evidence.

29. Resultantly, the present appeal is accepted.  The accused  

is acquitted of the offence under Section 18 of the Act and is  

directed to be set at liberty forthwith. The case property be  

disposed of in accordance with the provisions of the Act.

………...….…………......................J.                                      (Swatanter Kumar)

………...….…………......................J.                  (Madan B. Lokur)

New Delhi, December 13, 2012

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