[ REPORTABLE ]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1051 OF 2009

Rajender Singh … ……Appellant

Versus

State of Haryana         ………Respondent

J U D G M E N T

HARJIT SINGH BEDI,J.

This appeal arises out of the following facts.

1. At  about  4  p.m.  on  the  30th January  1997,  PW-6  

Inspector Kuldip Singh of the CIA Staff, Hisar sent Ruqa Ex.  

PG to Police Station Bhuna that while he was present at the  

Bus Adda of village Bhuna in connection with the investigation  

of a case, he had received secret information that the appellant  

Rajinder Singh @ Chhinder,  was an opium addict and also  

dealing in its sale, and that he had kept some opium in the  

shed used for storing fodder in his farm house, and if raid was  

organized,  the opium could be recovered.  On the basis of the

aforesaid Ruqa, a formal First Information Report was drawn  

up for an offence punishable under Section 18 of the Narcotic  

Drugs  and  Psychotropic  Substances  Act,  1985  (hereinafter  

called the “Act”).  A wireless message was also sent to the DSP,  

Fatehabad PW-5 Charanjit Singh to reach the spot.  The effort  

of  the  police  party,  however,  to  join  some  independent  

witnesses  from  the  public  was  unsuccessful.  In  the  

meanwhile, PW-5 also reached that place and the police party  

made its way to the farm house of the appellant.  The lock on  

the  fodder  room was  opened  after  taking  the  key  from the  

appellant  and  searched  which  led  to  the  recovery  of  3.500  

kilograms of opium.  50 grams was taken out for sampling and  

the remainder of the opium was sealed.  The appellant was  

also  arrested  by  the  DSP  and  after  completion  of  the  

investigation,  was charged under Section 18 of the Act and  

was  accordingly  brought  to  trial.   The  prosecution  placed  

almost exclusive reliance on the statements of PW-5 Charanjit  

Singh  DSP  and  PW-6  Kuldip  Singh  Inspector  as  also  the  

recovery of the opium from the residence of the appellant.  In  

his statement under Section 313 of the Cr.P.C. the appellant  

admitted that he had already been convicted by the Additional

Sessions Judge, Hisar on the 15th March 1997 for having been  

found  in  possession  of  14  Kilograms  of  Heroin,  though  an  

appeal had been filed against the conviction.  He also stated  

that he was on bail in that appeal.  The trial court relying on  

the aforesaid evidence and circumstances held that the case  

against  the  appellant  had  been  proved  beyond  doubt  and  

merely because no independent witness had been associated  

with  the  proceedings  could  not  be  taken  against  the  

prosecution  as  an  effort  had  been made  to  associate  some  

witness, but no one agreed to the police request.  The court  

also found that the provisions of Sections 52, 55 and 57 of the  

Act had been complied with and no prejudice could, therefore,  

be claimed by the appellant.  The court further observed that  

it  was  clear  from  the  evidence  of  PWs.5  and  6  that  the  

provisions of Section 42 of the Act had been complied with as  

the secret information received by PW-6 had been recorded by  

him in a Ruqa which had been sent to the Police Station for  

registration of a FIR and that he had also informed PW-5 on  

wireless about the information received by him on which the  

latter had reached the place of search and seizure.  The trial  

court  further  noted  that  as  the  appellant  was  a  previous

convict, a lenient view could not be taken in his case.  He was  

accordingly sentenced to undergo 20 years RI and to pay a fine  

of Rs.2,00,000/- and in default of payment of fine to undergo  

RI  for  2  years.   The  judgment  of  the  trial  court  had  been  

confirmed in appeal by the High Court leading to the present  

proceedings before us.

2. Mr. Zafar Sadiqui, the learned counsel for the appellant,  

has made four submissions during the course of the hearing.  

He has first submitted that as the provisions of Section 42(2)  

of the Act had not been complied with, the conviction of the  

appellant could not be sustained in the light of the judgment  

of the Constitution Bench of this Court in Karnail Singh vs.  

State  of  Haryana  (2009)  8  SCC  539.   He  has  further  

submitted that no serious effort had been made to associate  

an independent witness with the search and seizure and that  

the  link  evidence  in  the  case  was  also  missing  as  the  

Malkhana  register  pertaining  to  the  recovered  opium  was  

deposited had not been produced as evidence.  He has finally  

submitted that as the provisions of Sections 52, 55 and 57 of  

the Act had not been complied with was an additional reason  

as to why the conviction could not be sustained.  Mr. Manjit

Dalal,  the  learned  counsel  for  the  State  of  Haryana,  has  

however supported the judgments of the courts below and has  

pointed out that the Ruqa Exhibit PA had been sent to the  

Police Station for the registration of the FIR and the fact that  

information  had  been  conveyed  on  the  wireless  to  DSP  

Charanjit Singh was sufficient compliance with the provisions  

of Section 42(2) of the Act.  He has also controverted the other  

submissions made by Mr. Sadiqui.

3. We have heard the learned counsel for the parties and  

gone  through  the  judgment  impugned.   To  our  mind,  the  

entire controversy hinges on Section 42 which is reproduced  

below:

“42.  Power  of  entry,  search,  seizure  and  arrest  without  warrant  or  authorization.  –  (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 authorization 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.

42(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.”

4. A reading of the above said provision pre-supposes that if  

an  authorized  officer  has  reason  to  believe  from  personal  

knowledge or information received by him that some person is  

dealing  in  a  narcotic  drug  or  a  psychotropic  substance,  he  

should ordinarily take down the information in writing except

in cases of  urgency which are  set  out in the Section itself.  

Section 42(2),  however,  which calls  for  interpretation in the  

matter before us, is however categorical that the information if  

taken  down in  writing  shall  be  sent  to  the  superior  officer  

forthwith.  In Karnail Singh’s case, this Court has held that  

the provisions of Section 42(2) are mandatory and the essence  

of the provisions has been set out in the following terms:

“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  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 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.”

5. It  is therefore clear that the total  non-compliance with  

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

impermissible  but  delayed  compliance  with  a  satisfactory  

explanation for the delay can, however, be countenanced..  We  

have gone through the evidence of PW-6 Kuldip Singh.  He  

clearly  admitted  in  his  cross-examination  that  he  had  not  

prepared any record about the secret information received by  

him in writing and had not sent any such information to the  

higher authorities.  Likewise, PW-5 DSP Charanjit Singh did  

not  utter  a  single  word  about  the  receipt  of  any  written

information from his junior officer Inspector Kuldip Singh.  It  

is,  therefore,  clear  that  there  has  been  complete  non-

compliance  with  the  provisions  of  Section  42(2)  of  the  Act  

which vitiates the conviction.

6. Mr. Dalal, the learned counsel for the respondent-State  

has, however, referred to paragraph 34 of the judgment of the  

Constitution Bench in which general observations have been  

made with regard to the provisions of Section 41 (1) and 42(2)  

with  respect  to  the  latest  electronic  technology  and  the  

possibility  that  the  said  provisions  may  not  be  entirely  

applicable in such a situation.  Concededly the present case  

does  not  fall  in  this  category.   In  any  case  the  principles  

settled by the  Constitution Bench are  in paragraph 35 and  

have already been re-produced by us hereinabove.  Likewise,  

the dispatch of a wireless message to PW-6 does not amount  

to compliance with Section 42(2)  of  the Act as held by this  

Court  in  State  of  Karnataka  vs.  Dondusa  Namasa  Baddi  

(2010) 12 SCC 495.

7. In the light of the fact what has been held above, we are  

not inclined to go to the other issues raised by Mr. Sadiqui.

We, accordingly allow the appeal, set aside the judgments of  

the courts below and order the appellant’s acquittal.  

             ..………………………….J. (HARJIT SINGH BEDI)

..………………………….J. (GYAN SUDHA MISRA)

AUGUST 08, 2011 NEW DELHI.