Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2118 OF 2008

Sukhdev Singh      ... Appellant

Versus

State of Haryana     ... Respondent

J U D G M E N T

Swatanter Kumar, J.

1. The present appeal is directed against the judgment dated  

27th March, 2008 pronounced by the High Court of Punjab and  

Haryana at Chandigarh in Criminal Appeal No. 802-SB of 1998.  

We may notice the case of the prosecution and the facts which  

have given rise to the filing of the present criminal appeal.

2. On 4th February, 1994, ASI Nand Lal along with HC Hoshiar  

Singh, HC Suraj Bhan and other police officials were present in  

village Jogewala, in connection with patrolling duty.   ASI Nand  

1

Page 2

Lal, who was examined as PW 1, received secret information  

against the accused that the accused was in the habit of selling  

chura post (poppy husk) in his house and if a raid is conducted  

upon the house of the accused, the accused can be caught red-

handed with the contraband.   One Nacchatter Singh is stated  

to have been associated with the raiding party which raided the  

house  of  the  accused.   However,  this  witness  was  declared  

hostile  before  the  Court  during  his  examination.     On  

conducting  a  search,  five  bags  were  found  lying  concealed  

under  a  heap of  chaff  in  the  courtyard  of  the  house of  the  

accused.    On  suspicion  of  having  some  intoxicant  in  his  

possession,  the  Investigating  Officer  served  notice  upon  the  

accused  under  Section  50  of  the  Narcotic  Drugs  and  

Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) giving  

him an  offer  to  be  searched before  a  Gazetted  Officer  or  a  

Magistrate.    Accused  is  stated  to  have  responded  to  such  

notice  vide  Ext.  PC/1  where  he  expressed  his  desire  to  be  

searched  before  a  Gazetted  Officer  of  the  police.      Upon  

having known the desired choice of the accused, it  is stated  

that  PW1  had  sent  an  application,  Ext.  PD,  to  the  Deputy  

Superintendent  of  Police,  Dabwali,  through  Constable  Amir  

2

Page 3

Singh requesting him to reach the spot.   Mr. Jagdish Nagar,  

DSP, reached the spot after about half an hour and upon his  

instruction the search of the bags was conducted.   From each  

gunny bag, 100 grams of chura post was separated as sample.  

The samples as well as the remaining gunny bags weighed 39  

kgs.  and  900  grams  each  and   were  sealed  with  the  seal  

bearing impressions JN and NL, and thereafter were taken into  

possession  vide  recovery  memo  Ext.  PE.   The  seal  NL  was  

handed over to HC Hoshiar Singh while seal JN was retained by  

the DSP himself.   After completing this process, a ruqa Ex. PF  

was sent to the police station where the FIR being Ext. PF/1 was  

registered  under  Sections  15/16/61/85  of  NDPS  Act.   The  

Investigating Officer prepared a site plan Ext. PG.   On return to  

the police station, the case property was handed over to the  

MHC with its seals intact.   After receiving the test report Ext.  

PH from the Forensic Science Laboratory, Haryana, Madhuban  

(Karnal) and after completing all other formalities, the challan  

was filed.    The challan in terms of Section 173 of the Code of  

Criminal  Procedure,  1973  (for  short  “Cr.PC”)  was  presented  

before the court of competent jurisdiction.   The prosecution  

examined a number of witnesses including PW1 Nand Lal, PW2  

3

Page 4

Jagdish Nagar,  DSP and PW Nachhattar Singh.    Affidavits of  

Nihan Singh, Head Constable and Tejas Singh, Constable (Ext.  

PA  and  PB  respectively)  were  taken  into  evidence.    The  

accused took the plea that he had been falsely implicated in  

the case at the instance of Harnand Singh, Ex-Member of the  

Block  Samiti  of  the  area  and  examined  four  witnesses  in  

support  of  his  case.     The Trial  Court  vide its  judgment  of  

conviction dated 4th July,  1998 held the accused guilty of an  

offence  punishable  under  Section  15  of  NDPS  Act  and  after  

hearing the party on the quantum of sentence vide its order  

dated 6th July, 1998 awarded 10 years’ rigorous imprisonment  

to the accused with fine Rs. 1 lakh and in the event of default  

to undergo simple imprisonment for another two years.  The  

legality and correctness of the judgment and order of sentence  

was challenged by the accused before the High Court.

3. The  High  Court  vide  its  detailed  judgment  dated  27th  

March, 2008 declined to interfere with the judgment of the Trial  

Court and while upholding the same, maintained the order of  

sentence, giving rise to the filing of the present appeal.

4

Page 5

4. The  only  contention  raised  before  us  on  behalf  of  the  

appellant is that the case of the prosecution must fail for total  

non-compliance  of  the  statutory  provisions  of  Section  42  of  

NDPS Act.    These provisions are mandatory and in the present  

case, there is admittedly no compliance of the said provisions,  

thus the accused is entitled to acquittal as the whole case of  

the prosecution is vitiated in law.

5. To the contra, the contention on behalf of the State is that  

there is substantial compliance of the provisions of Section 42  

of  NDPS  Act  and  therefore,  the  concurrent  judgments  of  

conviction  and  order  of  sentence  do  not  call  for  any  

interference.     

6. In order to examine the merit or otherwise of the above  

contention, it is necessary for us to discuss the entire gamut of  

the prosecution evidence.    

7. At  this  stage,  it  will  be  useful  to  refer  to  the  relevant  

statement  of   ASI  Nand  Lal,   PW1  who  is  stated  to  have  

received a secret information, proceeded to raid the house of  

the accused and recovered the chura post as noticed above:

5

Page 6

“On 04.02.1994, I was posted as Incharge of  CIA Staff, Dabwali.   On that day, I alongwith  Hoshiar Singh H.C. Suraj Bhan H.C. and other  police officials was present at village Jogewala  in connection with patrolling and detection of  crimes.   Then, I received a secret information  that the accused present in the court is in the  habit  of  selling  churapost  and  if  a  raid  is  conducted  at  the  once,  churapost  could  be  recovered  from  him.   On  receipt  of  this  information, I formed a raiding party and when  I reached near the school of village Panniwala  Morika, Nicchattar Singh son of Sunder Singh  met me and he was joined in the raiding party  and then the raiding party reached the house  of  the  accused.   The  accused  was  found  present in the court-yard of his house and at  that time, he was sitting on a cot.    Then,  I  conducted  the  house  search  of  the  accused  and on search five bags lying under the heap  of Turi were recovered which were lying in the  court-yard of the house of the accused.  Then,  I served a notice Ex. PC on the accused on the  suspicion  of  his  having  possessed  some  narcotic substance in these five gunny bags,  offering him the search of the bags before any  Gazetted Officer of Police or a Magistrate.  The  accused as per his reply Ex.PC/1 desired the  search of the gunny bags before any Gazetted  Officer of Police.   Ex. PC and Ex. PC/1 were  signed by the  accused and attested  by  PWs  H.C.  Suraj  Bhan  and  Hoshiar  Singh  and  Nachittar Singh independent witness.   Then I  sent  a  written  application  Ex.PD  through  constable  Amir  Singh  to  DSP  Dabwali  requesting  him  to  reach  on  the  spot.  Thereafter,  the  DSP  Dabwali  reached  at  the  spot  after  half  an  hour  and  then  on  his  instructions, I conducted the search of the five  gunny bags in the presence of PWs.    Poppy  straw was found in it.   100 grams churapost  was  separated  as  samples  from each  gunny  

6

Page 7

bags.  The remaining on weighment was found  to be 39 kgs. 900 grams in each gunny bag.  The  samples  and  the  gunny  bags  remaining  churapost were sealed with the seals NL and  JN  and  were  taken  into  possession  vide  recovery memo Ex. PE attested by DSP Jegdish  Nagar, Nichhatar Singh, Suraj Bhan H.C. Seal  NL after use was handed over to Hoshiar Singh  H.C., while the seal JN was retained by the DSP  himself I sent ruqa Ex. PF to the Police-Station  for registration of a case on which for-mail FIR  Ex.PF/1 was recorded by Shri Davinder Kumar  ASI whose signatures I identify.”    

8. It  is  clear  from  the  statement  of  PW1  that  he,  upon  

receiving the secret information, neither reduced the same in  

writing nor communicated to his senior officer about receiving  

the secret information as required under Section 42 of NDPS  

Act.

9. In  his  cross-examination,  he  admitted  that  he  had  

received the secret information at about 11.30 a.m. at Village  

Jogewala.   He did not know from where the secret information  

was received.   He was in a jeep.  The distance between the  

house of the accused and the spot where he was at the time of  

receiving the secret information was merely 6 kilometers, but  

he reached the house of the accused only at 2 p.m.  He also  

admitted that  the house of  the accused was situated in  the  

7

Page 8

middle of the village in a busy locality, and yet he did not call  

anybody  from  the  neighbourhood  at  the  time  of  effecting  

recovery.

10. According to the learned counsel appearing for the State,  

there was substantial compliance inasmuch as after effecting  

the recovery he had sent a ruqa Ext. PF to his senior officer, on  

the basis of which the FIR Ext.  PF/1 was registered and thus,  

there was substantial compliance of the provisions of Section  

42 of NDPS Act.   This aspect has also been considered by the  

High Court and while accepting the contention of the State as  

to  substantial  compliance of  the  provisions  of  Section  42 of  

NDPS Act,  the  High Court  in  the  judgment  impugned herein  

noticed as under:-

“9-A. In  the  instant  case  too,  a  secret  information, was received by Nand Lal,  ASI  on  4.2.1994,  when  he  alongwith  Hoshiar  Singh,  HC,  Suraj  Bhan  and  other  police  officials, was present in village Jogewala, in  connection with patrol duty, and detection of  crime.   It means that Nand Lal, ASI, was in  motion,  at the time, when he received the  secret  information,  against  the  accused.  Since,  the  secret  informer  had  informed  Nand Lal,  ASI that if  a raid was conducted  immediately, then a big haul of contraband,  could  be  recovered from the house of  the  accused, where he was present.   It was his  

8

Page 9

bounden  duty,  to  immediately  rush  to  the  disclosed place, to detect the accused with  contraband.  It  was,  in  this  view  of  the  matter,  that  he had no time to record the  information,  and  send  the  same  to  the  Officer  Superior,  as  had he done so,  there  would  have  been  every  possibility  of  the  accuse absconding, and the purpose of the  very  raid  would  have  been  defeated.  However,  he  substantially  complied  the  provisions  of  Section  42  of  the  Act,  by  recording  the  ruqa,  embodying  the  secret  information therein, as also by sending the  message to the DSP, to come to the spot, as  a  result  whereof,  he  came  to  the  spot.  Since,  there  was  substantial  compliance,  with the provisions of Section 42 of the Act,  it  could  not  be  said  that  there  was  intentional  and  deliberate  non-compliance  thereof  strictly.  On account  of  this  reason,  the  case  of  the  prosecution  cannot  be  thrown out.   The principle of law, laid down  in  Sajan Abraha’s case (supra),   a case  decided by three Judge Bench of the Apex  Court, is, thus, fully applicable to the facts of  the present case.   In this view of the matter,  fully  applicable  to  the facts  of  the present  case.    In  this  view  of  the  matter,  the  submission of the Counsel for the appellant,  in this regard, does not appear to be correct,  and stands rejected.”  

11. We may notice that the High Court, while arriving at the  

above conclusion, appears to have relied upon the judgment of  

this  Court  in  the  case  of  Sajan  Abraham v.  State  of  Kerala  

[(2001) 6 SCC 692].

9

Page 10

12. The High Court has proceeded apparently on the basis of  

substantial  compliance  of  the  provisions.  The  concept  of  

substantial compliance appears to have been construed on the  

basis that PW1 had sent a ruqa and had informed about the  

recovery effected on the basis of which the FIR was registered.  

All these are post-recovery steps taken by PW1.    

13. Now, the question that arises for consideration is as  

to at what stage and by what time the authorized officer  

should comply with the requirements of Section 42 of  

the Act  and report  the matter  to his  superior  officer.  

For  this  purpose,  we must  refer  to  Section 42 of  the  

NDPS Act at his stage :

“Section  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  including  para-military forces or armed forces as  is empowered in this behalf by general  or  special  order  by  the  Central  Government, or any such officer (being  an officer superior in rank to a peon,  sepoy  or  constable)  of  the  revenue,  drugs  control,  excise,  police  or  any  

10

Page 11

other  department  of  a  State  Government  as  is  empowered  in  this  behalf  by general  or special  order of  the  State  Government,  if  he  has  reason  to  believe  from  persons  knowledge or information given by any  person and taken down in writing that  any  narcotic  drug,  or  psychotropic  substance, or controlled substance in  respect of which an offence punishable  under this Act has been committed or  any  document  or  other  article  which  may  furnish  evidence  of  the  commission  of  such  offence  or  any  illegally  acquired  property  or  any  document or  other article  which may  furnish  evidence  of  holding  any  illegally  acquired  property  which  is  liable  for  seizure  or  freezing  or  forfeiture under Chapter VA of this Act  is  kept  or  concealed in  any building,  conveyance  or  enclosed  place,  may  between sunrise and sunset,--

(a) enter into and search any such  building, conveyance or place;

(b)  in  case  of  resistance,  break  open  any  door  and  remove  any  obstacle to such entry;

(c)  seize such drug or  substance  and  all  materials  used  in  the  manufacture  thereof  and  any  other  article  and  any  animal  or  conveyance which he has reason  to  believe  to  be  liable  to  confiscation  under  this  Act  and  any  document  or  other  article  which  he  has  reason  to  believe  may  furnish  evidence  of  the  commission  of  any  offence  punishable  under  this  Act  or  

11

Page 12

furnish  evidence  of  holding  any  illegally  acquired  property  which  is liable for seizure or freezing or  forfeiture  under  Chapter  VA  of  this Act; and

(d) detain and search, and, if  he  thinks  proper,  arrest  any person  whom he has reason to believe to  have  committed  any  offence  punishable under this Act:

Provided  that  if  such  officer  has  reason  to  believe  that  a  search  warrant  or  authorisation  cannot  be  obtained  without  affording  opportunity  for  the  concealment  of  evidence  or  facility  for  the  escape  of  an  offender,  he  may  enter  and  search  such  building,  conveyance  or  enclosed  place  at  any  time  between  sunset  and  sunrise  after  recording  the  grounds of his belief.

(2)  Where an officer  takes down any  information  in  writing  under  sub- section (1) or records grounds for his  belief  under  the  proviso  thereto,  he  shall within seventy-two hours send a  copy thereof to his immediate official  superior.”

14. Section 42 can be divided into two different parts.  

First  is the power of entry,  search seizure and arrest  

without warrant or authorisation as contemplated under  

sub-section (1) of the said section.  Second is reporting  

of the information reduced to writing to a higher officer  

12

Page 13

in consonance with sub-section (2) of that section.  Sub-

section (2) of Section 42 had been a matter of judicial  

interpretation as  well  as  of  legislative  concern in  the  

past.  Sub-section (2) was amended by the Parliament  

vide Act 9 of 2001 with effect from 2nd October, 2001.  

After  amendment  of  this  sub-section,  the  words  

‘forthwith’  stood  amended  by  the  words  ‘within  72  

hours’.  In other words, whatever ambiguity or leverage  

was provided for under the unamended provision, was  

clarified and resultantly, absolute certainty was brought  

in  by  binding  the  officer  concerned  to  send  the  

intimation to the superior officers within 72 hours from  

the time of receipt of information.  The amendment is  

suggestive  of  the  legislative  intent  that  information  

must reach the superior officer not only expeditiously or  

forthwith  but  definitely  within  the  time contemplated  

under the amended sub-section (2) of Section 42.  This,  

in our opinion, provides a greater certainty to the time  

in which the action should be taken as well as renders  

the  safeguards  provided  to  an  accused  more  

meaningful.  In the present case, the information was  

13

Page 14

received by the empowered officer on 4th February, 1994  

when the unamended provision was in force.  The law as  

it  existed  at  the  time  of  commission  of  the  offence  

would  be  the  law  which  will  govern  the  rights  and  

obligations of the parties under the NDPS Act.  In the  

case  of  Basheer  @  N.P.  Basheer v.  State  of  Kerala  

[(2004) 3 SCC 609] wherein this Court was concerned  

with the Amending Act 9 of 2001 of the NDPS Act, the  

Court took the view that application of the Amending  

Act, where the trial had been concluded and appeal was  

pending on the date of its commencement and where  

the accused had been tried and convicted,  would not  

apply.   The  contention  that  trials  were  not  held  in  

accordance with law was not sustainable for the reason  

that there could be direct and deleterious consequences  

of applying the amending provisions of the Act to trials  

which had concluded in which appeals were filed prior to  

the date of Amending Act coming into force.  This would  

certainly defeat the first object of avoiding delay in such  

trials.   Another  Bench  of  this  Court  in  the  case  of  

Jawahar Singh @ Bhagat Ji. v.  State of GNCT of Delhi   

14

Page 15

[(2009) 6 SCC 490], while dealing with the amendments  

of Section 21 of the NDPS Act, the Court took the view  

that amendments made by Act 9 of 2001 could not be  

given retrospective effect as if it was so given, it would  

warrant a retrial which is not the object of the Act.  The  

Court held as under :

“9. It  is  now  beyond  any  doubt  or  dispute  that  the  quantum  of  punishment  to  be  inflicted  on  an  accused upon recording a judgment of  conviction  would  be  as  per  the  law  which  was  prevailing  at  the  relevant  time. As on the date of commission of  the  offence  and/or  the  date  of  conviction,  there  was  no  distinction  between  a  small  quantity  and  a  commercial  quantity,  question  of  infliction  of  a  lesser  sentence  by  reason  of  the  provisions  of  the  amending  Act,  in  our  considered  opinion, would not arise.

10. It is also a well-settled principle of  law  that  a  substantive  provision  unless  specifically  provided  for  or  otherwise  intended  by  Parliament  should be held to have a prospective  operation. One of the facets of the rule  of law is also that all statutes should  be  presumed  to  have  a  prospective  operation only.”

15

Page 16

15. No law can  be  interpreted  so  as  to  frustrate  the  

very  basic  rule  of  law.   It  is  a  settled  principle  of  

interpretation  of  criminal  jurisprudence  that  the  

provisions have to be strictly construed and cannot be  

given a retrospective effect unless legislative intent and  

expression is clear beyond ambiguity.  The amendments  

to criminal law would not intend that there should be  

undue delay in disposal of criminal trials or there should  

be retrial just because the law has changed.  Such an  

approach would be contrary to the doctrine of finality as  

well as avoidance of delay in conclusion of criminal trial.  

16. Still, reference can be made to the judgment of this  

Court in the case of Ravinder Singh v. State of Himachal  

Pradesh [(2009)  14 SCC 201],  wherein  this  Court  was  

dealing with the question as to what would be the law  

applicable for imposition of a sentence irrespective of  

when the trial was concluded with reference to Article  

21 of  the Act  and provision of  the Punjab Excise Act,  

1914 as applicable and amended by H.P. Act 8 of 1995  

where  punishment  was  enhanced  and  minimum  

sentenced was provided. The Court held that it is trite  

16

Page 17

law  that  the  sentence  imposable  on  the  date  of  

commission  of  the  offence  has  to  determine  the  

sentence imposable on completion of trial’.   

17. Even in the case of Hari Ram v. State of Rajasthan &  

Ors. [(2009)  13  SCC  211],  this  Court  stated  with  

reference to the provisions of the Juvenile Justice (Care  

and Protection of Children) Act, 2000 (as amended by  

Act of 2006) that the relevant date for applicability of  

the Act so as the age of the accused, who claims to be a  

child, is concerned, is the date of occurrence and not the  

date of trial.

18. In  the  present  case,  the  occurrence  was  of  4th  

February, 1994.  The Trial of the accused concluded by  

judgment of conviction dated 4th July, 1998.  Thus, it will  

be the unamended Section 42(2) of the NDPS Act that  

would  govern  the  present  case.   The  provisions  of  

Section 42 are intended to provide protection as well as  

lay down a procedure which is mandatory and should be  

followed positively by the Investigating Officer.   He is  

obliged to furnish the information to his superior officer  

17

Page 18

forthwith.  That obviously means without any delay.  But  

there  could  be  cases  where  the  Investigating  Officer  

instantaneously, for special reasons to be explained in  

writing,  is  not  able  to  reduce  the  information  into  

writing  and  send the  said  information  to  his  superior  

officers  but  could  do  it  later  and  preferably  prior  to  

recovery.   Compliance of Section 42 is mandatory and  

there cannot be an escape from its strict compliance.

19. This  question  is  no  more  res  integra and  stands  fully  

answered by the Constitution Bench judgment of this Court in  

Karnail  Singh v.  State  of  Haryana [(2009)  8  SCC 539].   The  

Constitution Bench had the  occasion to  consider  the  conflict  

between the two judgments i.e.  in the case of  Abdul Rashid  

Ibrahim Mansuri  v.  State of  Gujarat [(2000) 2 SCC 513] and  

Sajan Abraham (supra) and 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:

18

Page 19

(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.

19

Page 20

(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.”

20. Having referred to the above settled principle of law, we  

are unable to  accept  the contention raised on behalf  of  the  

State and have to grant our approval to the submission made  

on behalf of the appellant.  

20

Page 21

21. As per the statement of PW1, no effort was made by him  

to  reduce the information into  writing and inform his  higher  

authorities  instantaneously  or  even after  a  reasonable  delay  

which  has  to  be  explained with  reasons  in  writing.   On the  

contrary,  in  the present case,  the Investigating Officer  PW 1  

had more than sufficient time at his disposal to comply with the  

provisions  of  Section  42.    Admittedly,  he  had  received  the  

secret information at 11.30 a.m., but he reached the house of  

the  accused  at  2  p.m.  even  when  the  distance  was  only  6  

kilometers away and he was in a jeep.   There is not an iota of  

evidence,  either  in  the  statement  of  PW  1  or  in  any  other  

documentary form, to show what the Investigating Officer was  

doing  for  these  two  hours  and  what  prevented  him  from  

complying with the provisions of Section 42 of NDPS Act.

22. There is patent illegality in the case of the prosecution and  

such  illegality  is  incurable.  This  is  a  case  of  total  non-

compliance, thus the question of substantial compliance would  

not  even arise for  consideration of  the Court  in  the present  

case.    The twin purpose of the provisions of Section 42 which  

can broadly be stated are that : (a)  it is a mandatory provision  

which  ought  to  be  construed  and  complied  strictly;  and  (b)  

21

Page 22

compliance  of  furnishing  information  to  the  superior  officer  

should be forthwith or within a very short time thereafter and  

preferably post-recovery.

23.  Once the contraband is  recovered,  then there are other  

provisions  like  Section  57  which  the  empowered  officer  is  

mandatorily required to comply with.  That itself to some extent  

would minimize the purpose and effectiveness of Section 42 of  

the  NDPS  Act.   It  is  to  provide  fairness  in  the  process  of  

recovery and investigation which is one of the basic features of  

our criminal jurisprudence.   It is a kind of prevention of false  

implication of innocent persons. The legislature in its wisdom  

had made the provisions of Section 42 of NDPS Act mandatory  

and not optional as stated by this Court in the case of  Karnail  

Singh (supra).

24. Thus,  the  present  appeal  merits  grant  of  relief  to  the  

accused.   We accordingly set aside the judgment of the High  

Court as well as the Trial Court and acquit the accused of an  

offence under Section 15 of NDPS Act.   We direct the accused  

to be set at liberty forthwith, if not required in any other case.

22

Page 23

25. Before we part with this file, we consider it the duty of the  

Court to direct the Director General of Police concerned of all  

the  States  to  issue  appropriate  instructions  directing  the  

investigating  officers  to  duly  comply  with  the  provisions  of  

Section 42 of NDPS Act at the appropriate stage to avoid such  

acquittals.   Compliance to the provisions of Section 42 being  

mandatory,  it  is  the  incumbent  duty  of  every  investigating  

officer to comply with the same in true substance and spirit in  

consonance with the law stated by this Court in the case of  

Karnail Singh (supra).

26. The Registry shall send a copy of this judgment to all the  

Director  Generals  of  Police  of  the  States  for  immediate  

compliance.    

27. The appeal is accordingly allowed.

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

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

New Delhi, December 13, 2012

23