Supreme Court of India
KARNAIL SINGHversusSTATE OF HARYANA
- Citation
- 2009 INSC 958
- Decided
- 29 July 2009
- Disposal
- Reference answered
- Bench
- K G BALAKRISHNAN
Holding
Section 42(1) and 42(2) are mandatory in principle, but total non‑compliance is prohibited while delayed or post‑emergency compliance with a satisfactory explanation is acceptable and does not invalidate the proceedings.
Summary
The Supreme Court examined two criminal appeals arising from convictions under the Narcotic Drugs and Psychotropic Substances (NDPS) Act where police officers had acted on prior information without first recording it in writing or sending a copy to their superior as required by Section 42. Conflicting precedents – Abdul Rashid (mandatory compliance) and Sajan Abraham (substantial compliance) – prompted a reference to a Constitution Bench to clarify the law. The Court held that total non‑compliance with the recording and reporting requirements is impermissible, but where an emergency demands immediate action, the officer may proceed first and later record the information and inform the superior within a reasonable time (72 hours post‑amendment). Delayed compliance with a satisfactory explanation suffices and does not vitiate the trial unless it causes prejudice to the accused. The reference was answered and the appeals were placed for disposal.
Issues considered
- Whether the requirements of Section 42(1) and 42(2) of the NDPS Act are mandatory or merely directory.
- Whether failure to record prior information in writing and to send a copy to the immediate superior vitiates a search, seizure or arrest.
- Effect of the 2001 amendment prescribing a 72‑hour period for reporting on the mandatory nature of the provision.
- Whether emergency circumstances justify postponement of the statutory compliance.
Legislation cited
- Code of Criminal Procedure, 1973s. 100, s. 101, s. 102, s. 103, s. 165, s. 96, s. 97, s. 98, s. 99
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 41, s. 42, s. 43, s. 50
Subjects
NDPS ActSection 42search and seizurewarrantless arrestprocedural complianceemergency police actionmandatory vs directory provisionsCriminal Procedure Code
Judgment
''
(2009] 11 S.C.R. 470
A KARNAIL SINGH
v.
STATE OF HARYANA
(Criminal Appeal No. 36 of 2003)
JULY 29, 2009
B
[K.G. BALAKRISHNAN, CJI, R.V. RAVEENDRAN, D.K.
JAIN, P. SATHASIVAM AND J.M. PANCHAL, JJ.]
NARCOTIC DRUGS AND PSYCHOTROPIC
C SUBSTANCES ACT, 1985:
ss.42(1) and 42(2) - Power of entry, search and seizure
and arrest without warrant or autfJorization - Requirement of
taking down in wr(ting by empowered officer the infonnation
regarding commission of offence in respect of any narcotic
0
drug or psychotropic substance, and sending a copy thereof
to his immediate official superior - HELD: On receiving the
infol7Tlation, it has to be recorded in the relevant register and
_a copy thereof to be sent forthwith to the immediate official
superior, before proceeding to take action in tenns of clauses
E (a) to (d) of s.42(1) - But, if infonnation is received while officer
is on move either on patrol duty or otherwise either by mobile
phon,e or otherwise and infonnation calls for immediate action
and delay would frustrate the purpose, action can be taken
as per clause (a) to (d) of s.42(1) and thereafter, as soon as
F it is possible, information be recorded in writing and sent
forthwith to official superior - While total non-compliance of
requirement of sub ss.(1) and (2) of s.42 is impermissible,
delayed compliance with satisfactory explanation, which is a
question of fact, would be acceptable compliance of s.42 -
G This position got strengthened with amendment to s.42 by Act
9 of2001 - Code of Criminal Procedure, 1973- ss. 96 tb 103
ands. 165.
The instant appeals were referred to the Constitution •
H 470
KARNAIL SINGH v. STATE OF HARYANA 471
y
Bench in view of diverse opinions stated to have been A
expressed by two three Judge Benches of the Supreme
Court in Abdul Rashid1 and Sajan Abraham 2 regarding
scope and applicability of s.42 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 in the matter of
conducting search, seizure and arrest without warrant or B
authorisation. In Abdul Rashid, the Court held that
compliance of s.42 of the Act was mandatory and failure
t
to take down the information in writing and to send forth
with a report to the immediate superior official would
cause prejudice to the accused; whereas in Sajan c
Abraham the Court held that s.42 was not mandatory and
substantial compliance thereof was sufficient.
Answering the reference, the Court
HELD: 1.1. The Narcotic Drugs and Psychotropic D
,, Substances Act, 1985, keeping in view its objects,
prescribes stringent punishment. Therefore, 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 E
the other. The provisions contained in Chapter V of tne
Act, comprising s.42, intended for providing cert"in
checks on exercise of powers of the authority concerned,
and are capable of being misused through arbitrary or
indiscriminate exercise unless strict compliance .is F
required. The statute mandates that the prosecution must
prove compliance with the said provisions. (Para 3] [478-
G-H; 479-A-B]
1.2. Search and seizure are essential steps in the
armoury of an investigator in the investigation of a G
criminal case. The Code of Criminal Procedure, 1973 in
various provlSions, particularly, ss. 96 to 103' and s.165,
1. Abdul Rashid Ibrahim Mansud vs. State of Gujarat 2000 ( 1 ) SCR 542.
2. Sajan Abraham vs. State of Kera/a 2001 Suppl. (1 ) SCR 335. H
472 SUPREME COURT REPORTS [2009] 11 S.C.R.
A recognizes the necessity and usefulness of search and
seizure during the investigation. Sub-s. (1) of s.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
B issue a warrant for the arrest of any person whom he has
reason to believe to have committed any offence
punishable u"der Chapter IV. Sub-s. (2) of s. 41 refers to
issue of authorization for similar purposes by officers of
departments of Central Excise, Narcotics, Customs,
c Revenue Intelligence, etc. [Para 7) [487-8-D]
1.3. Sub-s.(1) of s.42 of the Act l~ys 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
D 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 as specified in the sub-section and its
E proviso. [Para 8) [487-E-F]
1.4. Sub-s. (2) of s.42 as it originally stood mandated
that the empowered officer who took down informa.tion
in writing or recorded the grounds of his belief under the
F proviso to sub-s. (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 has been specified to be 72
hours. Similarly, s.50 of the Act, which prescribes the
conditions for search of a person and provides safeguard
G
or protectio.n for search in the presence of a gazetted
officer or a Magistrate has been amended by Act 9 of
2001 to meet the emergent situation. [Para 9 and 10] [488-
A-8; 492-0)
H 1.5. The Constitution Bench in Baldev Singh*
KARNAIL SINGH v. STATE OF HARYANA 473
r
• considered the compliance of s. 50 of the Act. While A
"'""i, doing so, the Bench also considered the provisions of
ss.41 and 42 of the Act. It is to be noted that Baldev
/
Singh's case has dealt with s.50 of the Act and the effect
of non-compliance of the same. It was held that the same
provisions of s. 50 containing certain protection and B
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 the manner prescribed by s.50. Through the
2001 amendment the strict procedural requirement as c
mandated by Baldev Singh's case was made directory, as
relaxation and fixing of the reasonable time to send the
'record to superior official as well as exercise of s. 100 of
CrPC was included by the legislature. Though it cannot
be said that the protection or safeguard given to the D
suspects have been taken away completely but certaip'
"' flexibility in the procedural norms were adopted only to
baJance an urgent situation. As a consequence the
mandate given in Baldev Singh's case is diluted. [Para 14]
[490-F; 492-C-D; 493-G-H; 494-B]
E
State of Punjab vs, Baldev Singh (1999) 6 SCC 172,
referred to.
..._
2.1. A careful examination of the facts in Abdul Rashid
and Sajan Abraham shows that the decisions revolved on F
the facts and do not really lay down different propositions
of law. In Abdul Rashid, there was total non-compliance
with the provision of s 42. The police officer neither took
down the information as required uls 42(1) nor did he
inform his immediate official superior, as required by
( G
s.42(2). The ratio in Abdul Rashid 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. 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 H
474 SUPREME COURT REPORTS [2009] 11 S.C.R.
A to record in writing the information and send a copy
thereof forthwith to his official superior, as the
information was given to him while he was on patrol duty
and was moving in a jeep, and unless he acted on the
information immediately, the accused would have
B escaped. Ttie 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 the Court
c helci that the omission to record in writing the information
received was not a violation of s.42. [Para 4 and 11] [481-
F; 489-B-G]
Abdul Rashid Ibrahim Mansuri vs. State of Gujarat 2000
(1) SCR 542 =(2000) 2 SCC 513; Sajan Abraham vs. State
D of Kera/a 2001 (1) Suppl. SCR 335 = (2001) 6 SCC 692;
State of Punjab vs Balbir Singh 1994 (3) SCC 299;
Koluttumottil Razak vs. State of Kera/a 2004 (4) SCC 465,
referred to.
E 2.2. Under s.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 s. 42(1) should forthwith send a copy thereof
to his immediate official superior. If there is total non-
F 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
G the mandatory enforcement of the provisions of s.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 has been decided
H
KARNAIL SINGH v. STATE OF HARYANA 475
on 01.02.2000 but thereafter s.42 has been amended with A
effect from 02.10.2001 and the time of sending the report
of the requiretj 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 B
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. [Para 15] [494-C-G]
2.3. With the advent of cellular phones and wireless, C
technology has taken part in the system of police
administration and investigation. 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. D
ThereJore, in such change of circumstances, if the
statutory provisions under ss.41 (2) and 42(2) of the Act
of writing down the information is interpreted as a
mandatory provision, it will disable the promptitude of an
emergency situation and may turn out to be in vain with E
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 F
than providing an escape to the hardened drug-peddl~s.
[Para 16] [495-A-E]
2.4. Therefore, the law on the requirements of ss.
42(1) and 42(2) and the effect of the decision in Abdul G
Rashid and Sajan Abraham c;an be summed up as: (a) The
officer on receiving the information (of the nature referred
to in Sub-section (1) of s. 42) from any person has to
record it in writing in the Register concerned and
forthwith send a copy to his immediate official superior, H
476 SUPREME COURT REPORTS [2009] 11 S.C.R.
A before proceeding to take action in terms of clauses (a)
to (d) of s.42(1); (b) But if the information is received when
the officer is not in the police station, and is on the move
either on patrol duty or otherwise, either by mobile
phone, or other means, and the information calls for
8 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 s. 42(1) and
C thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same to
the official superior; (c) Thus, the compliance with the
requirements of ss.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
0
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
E seizure. The question is one of urgency and expediency;
(d) While total non-compliance of requirements of sub-ss.
(1) and (2) of s.42 is impermissible, delayed compliance
with satisfactory explanation about the delay will be
acceptable compliance of s.42. Whether there is adequate
F or substantial compliance with s.42 or not is a question
of'lact to be decided in each case. This position got
strengthened with the amendment to s.42 by Act 9 of
2001. [Para 17) [495-F-H; 496-A-H; 497-A-C]
G Case Law Reference:
2000 ( 1) SCR 542 referred para 1
2001 (1) Suppl. SCR 335 referred para 1
H
KARNAIL SINGH v. STATE OF HARYANA 477
(1999) s sec 112 referred para 4 A
1994 (3) sec 299 referred para 10
2004 (4) sec 465 referred para 10
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal B
No. 36 of 2003.
From the Judgment & Order dated 12.7.2002 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 305-SB of 1998.
c
WITH
Criminal Appeal No. 606 of 2004.
A.P.S. Deol, Harikesh Singh, Devinder Vir Singh (for A.P.
Mohanty), Satbir Pillania, Anil Karnawal, Dr. Sushi! Balwada for D
the Appellants.
Rajeev Gaur 'Naseem', Rajesh Ranjan and T.V. George
for the Respondents.
E
The Judgment of the Court was delivered by
..
P. SATHASIVAM, J. 1. In the case of Abdul Rashid
l
-' ..... . Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513, a
three-Judge Bench of this Court held that compliance of
Section 42 of the Narcotic Drugs and Psychotropic Substances F
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 vs.
State of Kera/a, (2001) 6 sec 692, which was also decided G
by a three-Judge Bench, it was held that Section 42 was not
mandatory and substantial compliance was sufficient In view
of the c.onflicting opinions regarding the scope and applicability
of Section 42 of the Act in the matter of conducting search,
H
478 SUPREME COURT REPORTS [2009] 11 S.C.R.
,
A 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 NDPS Act
8 makes it clear that to make the scheme of penalties sufficiently
deterrent to meet the challenge of well organized 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
C 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
D 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
E making provisions for the implementation of international
conventions relating to narcotic drugs and psychotropic
substances to which India has become a party.
:1. Let us consider the Scheme of the NDPS Act and its
F 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
G which we are concerned relates to power of entry, search,
seizure and arrest without warrant or a1,1thorization. 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 NDPS Act prescribes stringent punishment.
Hence a balance must be struck between the need of the law
H
KARNAIL SINGH v. STATE OF HARYANA 479
[P. SATHASIVAM, J.]
and the enforcement of such law on the one hand and the A
protection of citizens from oppression and injustice on the
r' 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 B
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:
c
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 autorickshawwhich was D
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
··o found concealed therein. The value of the said contraband E
was estimated to be Rs. 5.29 lakhs. When appellant/·
accused was questioned by the trial court under Section
313 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 F
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
G
them. fje 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 H
480 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
tile 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)
B 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
•
c 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
0
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
E pr~scribed in Section 50 of the Act. After referring to the dictum
-fcild down in State of Punjab vs. Baldev Singh, (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:
F "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
G 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
H the trial may not vitiate on that score alone. Nonetheless
KARNAIL SINGH v. STATE OF HARYANA 481
[P. SATHASIVAM, J.]
the resultant position would be one of causing prejudice A
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 B
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
C.
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 D
what information he got before he proceeded to the scene.
'r 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 E
a
be counted as 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 fav.our by the F
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 G
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 H
482 SUPREME COURT REPORTS [2009] 11 S.C.R.
A case of absolute non-compliance with the requirements of
Section 42(1) and (2).
5. The facts in Sajan Abraham v. State of Kera/a (Supra),
were completely different. The appellant/accused - Sajan
Abraham was put on trial for an offence punishable under
8
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
C Constables of the Special Squad got information at about 7.00
p.rn. 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
D police party. Thereafter PW 5 along with his police party
including PW 3 and other mem.bers 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
E 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
F 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
G 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
H
KARNAIL SINGH v. STATE OF HARYANA 483
[P. SATHASIVAM, J.]
punishable under Section 21 of the Act, hence convicted and A
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 B
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 C
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 D
Chapter IV of the Act and send it forthwith to his immediate
'.r .
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 E
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 F
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 G
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 H
484 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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 NDPS Act stringently against the persons involved
H
KARNAIL SINGH v. STATE OF HARYANA 485
[P. SATHASIVAM, J.]
in illicit drug trafficking and drug abuse, the legislature has A
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 B
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
c
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
42 of the NDPS Act which is relevant for the present purpose D
,,. 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 E
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 F
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 G
Government, if he has reason tp 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 H
486 SUPREME COURT REPORTS (2009) 11 S.C.R.
A 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,
B
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry; .
c (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
D 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
E 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
F 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.
G (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."
H Sub-section (2) as replaced by Act 9 of 2001 is extracted
KARNAIL SINGH v. STATE OF HARYANA 487
(P. SATHASIVAM, J.]
below: A
!
"(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."
B
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 c
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 D
1
believe to have committed any offence punishable under
Chapter IV. Sub-Section (2) of Section 41 refers to issue of
authorization for similar purposes by officers of departments of
Central Excise, Narcotics, Customs, Revenue Intelligence, etc.
E
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
F
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 G
_, 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. H
488 SUPREME COURT REPORTS [2009) 11 S.C.R.
...
A 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
B amendment in the ye&r 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
c Punjab vs. Balbir Singh - 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
D 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 I-
concealed in any building etc., he may carry out the arrest
E or search without a warrant between sunrise and sunset
I-
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 )II
belief.
F
To this extent these provisions are mandatory and
contravention of the same would affect the prosecution
case and vitiate the trial.
G (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
\---
H affects the prosecution case. To that extent it is mandatory.
KARNAIL SINGH v. STATE OF HARYANA 489
[P. SATHASIVAM, J.]
But if there is delay whether it was undue or whether the A
same has been explained or not, will be a question of fact
in each case."
Abdul Rashid was followed in Koluttumottil Razak vs. State
of Kera/a - 2004 (4) sec 465, which was also a case of total B
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 c
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 D
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 E
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 F
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
G
along with other r~cords regarding arrest of the accused
,.!;
immediately to his superior officer. It i~ 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 H
490 SUPREME COURT REPORTS (2009] 11 S.C.R.
A 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
B 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.
c 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
D 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
E 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.
F
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:
G "8. Section 41 of the NDPS 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
H person whom he has reason to believe to have committed
KARNAIL SINGH v. STATE OF HARYANA 491
[P. SATHASIVAM, J.]
any offence punishable under Chapter IV. Vide sub-section A
(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 B
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 c
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 D
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 E
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 F
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
&-.;arch such building, conveyance or enclosed place, at
any time between sunset and sunrise, after recording the
G
grounds of his belief. Vide sub-section (2) of Section 42,
_J the empoyvered 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
H
492 SUPREME COURT REPORTS (2009] 11 S.C.R.
A 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
8 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 persor. who is found to be in
c 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
D 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.
E The unamended Section 50 as existed during that period is as
follows:
"Section 50 - Conditions under which search of persons
shall be conducted
F (1) When any officer duly authorized 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
G 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 subsection (1).
H
KARNAIL SINGH v. STATE OF HARYANA 493
[P. SATHASIVAM, J.]
(3) The Gazetted Officer or the Magistrate before whom A
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 B
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 c
· evidence derived from such search. But this strict procedural
requirement has been diluted by the insertion of subsection (5)
and (6) to the Section by Act 9 of 2001, by which the following
subsections were inserted accordingly:
D
"(5) When an officer duly authorized 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
E
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 section100 of the Code of
\. Criminal Procedure, 1973 (2 of 1974).
'F
(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
se11d a copy thereof to his immediate official superior."
G
Through this amendment the strict procedural requirement as
mandated by Baldev Singh's case was avoided as relaxation
~nd fixing of the reasonable time to send the record to superior
official as well as exercise of Section 100 of CrPC was included
by the legislature. The effect conferred upon the previously
H
494 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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.
B 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.
c 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
D 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
E 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
F 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
G 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
H
KARNAIL SINGH v. STATE OF HARYANA 495
[P. SATHASIVAM, J.]
in India has assured certain expectation regarding the quality, A
reliability and usefulness of the instantaneous messages. This
technology has taken part in the system of police admi1 iistration
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 B
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 c
communication in the Register/Records kept for those
purposes in the police station or the respective offices of the
authorized 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
0
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/
offend~rs as a major ground for acquittal. Consequently, these
provisions should be taken as discretionary measure which E
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 F
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 G
nature referred to in Sub-section. (1) of section 42)
from any person had to record it in writing in the
concerned Register and fortrwith send a copy to
his immediate official superior, before proceeding
to take action in tElrms of clauses (a) to (d) of H
J -
496 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B
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
c 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 .
D (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
E 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
F
expediency.
(d) While total non-compliance of requirements of sub-
sections ( 1) and (2) of section 42 is impermissible,
delayed compliance with satisfactory explanation
G 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
H action, or non-sending a copy of such information
KARNAIL SINGH v. STATE OF HARYANA 497
[P. SATHASIVAM, J.]
to the official superior forthwith, may not be treated A
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 B
official superior, then it will be a suspicious
circumstance being a clear violation of section 42
1 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 c
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. ThG above position got strengthened with the
amendment to section 42 by Act 9 of 2001. D
18. We answer the reference in the manner aforesaid. Let
the appeals be now placed for disposal before the appropriate
Bench.
R.P. Reference answered. E
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