KISHAN CHANDversusSTATE OF HARYANA

                        [2012] 11 S.C.R. 1010


A                          KISHAN CHAND
                                   v.
                        STATE OF HARYANA
                 (Criminal Appeal No. 1375 of 2008)
                        DECEMBER 13, 2012
B
      [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

        Narcotics Drugs and Psychotropic Substances Act, 1985:

c        s.42 - Non-compliance of - Held: Provisions of s. 42 or
   s. 50 being mandatory require exact and definite compliance
   as opposed to the principle of substantial compliance - The
   trial court clearly recorded that the 10 did not reduce the secret
  information in writing nor did he send the same to the higher
D officer or to the police station for registration of the case - The
   Investigating Officer, in the examination-in-chief, while
  referring to the story of the prosecution, does not state that
  he had made the report immediately upon receiving the
  secret information and had informed his senior officers - In
  view of the total non-compliance of s. 42, non-involvement of
E any independent witness at any stage of the investigation and
  the presence of the Tehsildar-cum-Executive Magistrate being
  doubtful, prosecution has failed to prove its case beyond
  reasonable doubt - Both the courts below have fallen in error
  of law as well as that of appreciation of evidence - Accused
F is acquitted - Constitution of India, 1950 - Art.136.
        ss. 42, 50 and 57 - Compliance of - Held: These
  provisions provide separate rights and protections - They are
  neither inter-linked nor inter-dependent so as to dispense
G compliance of one with the compliance of another - In fact,
  they operate in different fields and at different stages - That
  distinction has to be kept in mind by the courts while deciding
  such cases - The sending of report as required uls. 57 of the
  Act the following day will be no compliance, factually and/or
H                                1010
       KISHAN CHAND v. STATE OF HARYANA                     1011


in the eyes of law to the provisions of s. 42 of the Act.          A

     The appellant along with another accused was
prosecuted for committing an offence u/s 18 of the
Narcotics Drugs and Psychotropic Substances Act, 1985
(the Act). The prosecution case was that on 19-7-2000, on
                                                            8
receiving secret information, PW7, who at the relevant
time was the Station House Officer of Police Station,
apprehended the appellant, who was driving a scooter,
with the other accused as the .Pillion rider. P.W. 7 called
the Tehsildar (PW-5), who directed the former to conduct C
the search of the scooter. Thereupon 3.800 kg of opium
was stated to have been recovered from the dicky of the
scooter. The trial court acquitted the other accused, but
convicted the appellant u/s 18 of the Act and sentenced
him to undergo RI for 10 years and to pay a fine of Rs. 1
lakh. The High Court upheld the conviction and the D
sentence.

     In the instant appeal filed by the convict, it was
contended for the appellant that there was no
compliance with the provisions of sub-ss (1) and (2) of E
s. 42 of the Act. The appellant also raised a serious doubt
about the recovery and the very presence of PW5.

     Allowing the appeal, the Court

     HELD: 1.1. The language of s. 42 Narcotics Drugs F
and Psychotropic Substances Act, 1985 does not admit
any ambiguity. The provisions likes. 42 ors. 50 of the Act
are the provisions which require exact and definite
compliance as opposed to the principle of substantial
compliance. The Constitution Bench in the case of G
Karnail Singh* carved out an exception which is not
founded on substantial compliance but is based upon
delayed compliance duly explained by definite and
reliable grounds. These are indefeasible, protective rights
vested in a suspect and are incapable of being shadowed H
     1012   SUPREME COURT REPORTS               [2012] 11 S.C.R.

A on the strength of substantial compliance. The purpose
  of these provisions is to provide due protection to a
  suspect against false implication and ensure that these
  provisions are strictly complied with to further the
  legislative mandate of fair investigation and trial. It will be
B opposed to the very essence of criminal jurisprudence,
  if upon apparent and admitted non-compliance of these
  provisions in their entirety, the Court has to examine the
  element of prejudice. The element of prejudice is of some
  significance where provisions are directory or are of the
C nature admitting substantial compliance. Where the duty
  is absolute, the element of prejudice would be of least
  relevancy. Absolute duty coupled with strict compliance
  would rule out the element of prejudice where there i:;
  total non-compliance of the provision. [Para16, 19, 21 and
D 22] [1023-E; 1026-D-E; 1027-G]

        *Kamai/ Singh v. State of Haryana 2009 (11) SCR 470
    =(2009) 8 sec 539 - relied on.
      Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000
                    =
E (1) SCR 542 (2000) 2 SCC 513; Sajan Abraham v. State
                                          =
  of Kera/a 2001 (1) Suppl. SCR 335 (2001) 6 SCC 692;
  Rajinder Singh v. State of Haryana 2011 (9) SCR 879          =
  (2011) 8 SCC 130; Kamai/ Singh v. State of Haryana 2009
                    =
  (11) SCR 470 (2009) 8 SCC 539; State of Delhi v. Ram
                                          =
F Avtar alias Rama 2011 (7) SCR 1129 (2011) 12 SCC 207
    - referred to

        Beckodan Abdul Rahiman v. State of Kera/a 2002 (3)
    SCR 53 - cited.
G      1.2. In the instant case, both the trial court and the
  High Court have proceeded on the basis of substantial
  compliance and there being no prejudice to the accused,
  though clearly recording that it was an admitted case of
  total non-compliance. The trial court clearly recorded that
H the 10 did not reduce the secret information in writing nor
  did he send the same to the higher officer or to the police
      KISHAN CHAND v. STATE OF HARYANA             1013


station for registration of the case. PW-7, the A
Investigating Officer, in the examination-in-chief, while
referring to the story of the prosecution, does not state
that he had made the report immediately upon receiving
the secret information and has informed his senior
officers. The statement of PW7 puts the matter beyond B
ambiguity that there was 'total non-compliance of the
statutory provisions of s. 42 of the Act'. Once, there is
total non-compliance and these provisions being
mandatory in nature, the prosecution case must fail.
 [Para 13, 15 and 23] [1022-G-H; 1023-C-E; 1028-C-E]      c
     1.3. It is not a case where any reason has come in
evidence as to why the secret information was not
reduced to writing and sent to the higher officer, which
is the requirement to be adhered to 'pre-search'. The
sending of report as required u/s. 57 of the Act on D
20.7.2000 will be no compliance, factually and/or in the
eyes of law to the provisions of s. 42 of the Act. These
are separate rights and protections available to an
accused and their compliance has to be done in
accordance with the provisions of ss. 42, 50 and 57 of the E
Act. They are neither inter-linked nor inter-dependent so
as to dispense compliance of one with the compliance
of another. In fact, they operate in different fields and at
different stages. That distinction has to be kept in mind
 by the courts while deciding such cases. [Para 24] [1028- F
G-H; 1029-A-C]
    2.1. There is a serious doubt in the recovery and the
very presence of PW5, at the time of recovery. The
prosecution has not been able to establish this aspect of
the case beyond reasonable doubt. According to PW7 G
after stopping the scooter of the accused, he had sent
for PW5 who had reached there and recovery was
effected in his presence after giving option to the
accused as required u/s. 50 of the Act. PW5, in his
statement had categorically stated that he had come to H
     1014 SUPREME COURT REPORTS                [2012] 11 S.C.R.


A the site in his official jeep No. HR 09 7007 driven by DW1
    and no other person was in the jeep. He claimed to have
    left the spot at about 11.15 a.m. on 19-7-2000. The driver
    of Jeep No. HR 09 7007 was examined as DW-1 along
    with log book. The suggestion in his cross-examination
B that every movement of the vehicles is not entered in the
    log book and that the vehicle was used by PW5 on the
   day of the incident was categorically denied by him and
   no other question was put to this witness. There is no
   reason to disbelieve the statement of DW1, particularly,
c when he produced the log book maintained in normal
   course of business. The log book showed a clear entry
   at serial no. 422 dated 19-7-2000 where the vehicle in
   question was stated to be used by the Naib Tehsildar,
   from 12.30 p.m. to 7.00 p.m. PW5, Tehsildar-cum-Executive
   Magistrate, in fact, did not use the official vehicle on that
0
   day as per the log book. The witness even gave the exact
   reading of the meter of the vehicle which showed that it
  was driven for 117 kilometers on that date by the Naib
  Tehsildar, not even anywhere near to the area where the
  accused is alleged to have been apprehended. It was
E also stated that except that journey, the vehicle had gone
  nowhere. He specifically stated that he had never taken
  PW5 to the place in question. Once, the statement of this
  witness is examined with the statement of PW7, that he
  did not associate any private person/independent
F witness in the recovery or in the entire process of
  investigation and that he did not even record such a fact
  in the proceedings casts a shadow of doubt over the
  case of the prosecution. [Para 25-27] [1029-C-H; 1030-A-
  G-H; 1031-A-D]
G
      2.2. In view of the total non-compliance of s. 42, non-
  involvement of any independent witness at any stage of
  the investigation and the presence of PW5 at the spot
  being so very doubtful, this Court holds that the
H prosecution has failed to prove its case beyond
      KISHAN CHAND v. STATE OF HARYANA                    1015


reasonable doubt. Both the High Court and the trial court          A
have noticed the evidence as well as its legal position.
Thus, both courts below have fallen in error of law as well
as that of appreciation of evidence. The accused is
acquitted. [Para 27-29] [1031-D-G]
                     Case Law Reference:
                                                                   B

    2002 (3) SCR 53              cited                para 8
    2000 (1) SCR 542             referred to          para 8
    2001 (1) Suppl. SCR 335 referred to               para 9       c
    2011 (9) SCR 879             referred to          para 11
    2009 (11) SCR 470            relied on            para 11
    2011 (7) SCR 1129            referred to          para 20
                                                                   D
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1375 of 2008.

    From the Judgment & Order dated 22.4.2008 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal       E
No. 1481-SB-2002.

     Hari Kesh Singh and Sanjay Gir (for Satyendra Kumar) for
the Appellant.

    Ramesh Kumar (for Naresh Bakshi) for the Respondent.           F

    The Judgment of the Court was delivered by

    SWATANTER KUMAR, J. 1. The Judge, Special Court,
Kaithal, Haryana vide his judgment dated 31st July, 2002
rendered the judgment of conviction and passed an order of         G
sentence under Section 18 of the Narcotics Drugs and
Psychotropic Substances Act, 1985 (for short "the Act") and
awarded the punishment to undergo Rigorous Imprisonment for
10 years and to pay a fine of Rs. 1 lakh, and in default thereto
                                                                   H
     1016    SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A and to further undergo rigorous imprisonment for a period of
  two years to accused Kishan Chand, while it acquitted the other
  accused Ramphal as the prosecution had failed to prove its
  charge against that accused.

B       2. Upon appeal, the judgment of the Trial Court was
  affirmed by the High Court as it was of the opinion that the
  judgment of the Trial Court did not warrant any interference.
  Thus, by its judgment dated 22nd April, 2008, the High Court
  sustained the conviction and sentence of the accused.
C Aggrieved from the judgment of the Division Bench of the High
  Court, the accused filed the present appeal.

        3. Before we dwell upon the merit or otherwise of the
   contentions raised before us, it will be appropriate for the Court
   to fully narrate the facts resulting in the conviction of the
D appellant. On 19th July, 2000, a secret information was received
   by Sub-Inspector Kaplan Singh, PW7 who at the relevant time
   was the Station House Officer of Police Station, Cheeka and
   was present near the bus stand Bhagat in relation to
   investigation of a crime. Assistant Sub-Inspector Mohinder
E Singh was also present there. According to the information
   received the accused/appellant Kishan Chand and Ramphal,
   the other accused, used to smuggle opium on their Scooter No.
   HR 31 B 1975. On that day, they were coming on Kakrala-
   Kakrali Road and were on their way to Bhagal. It was further
F informed that upon nakabandi, they could be caught red handed
   and a large quantity of opium could be recovered from the
  scooter. Kaplan Singh, PW7, then reached T-Point, turning
  Theh Banehra and made the nakabandi. After 20-25 minutes,
  both the accused came on scooter from the side of Kakrala-
G Kakrali. Accused Kishah Chand was driving the scooter,
  whereas accused Ramphal was the pillion rider. Suspecting the
  presence of narcotic substance in the scooter of the accused,
  a notice under Section 50 of the Act, Ext. PC was given to both
  the accused and they were asked to get the scooter searched
  in the presence of a Gazetted Officer or a Magistrate. Ext. P
H
       KISHAN CHAND v. STATE OF HARYANA                     1017
             [SWATANTER KUMAR, J.]

C, was signed by both the accused which was also signed by           A
Assistant Sub-Inspectors Manohar Lal (PW6) and Mohinder
Singh. The accused vide their reply Ext. PD opted to give the
search in the presence of a Gazetted Officer. Ext. PD was also
signed by the witnesses in addition to the accused.
                                                                 B
     4. Thereafter, the investigating officer called for Subhash
Seoran PW5, Tehsildar-cum-Executive Magistrate, Guhla on
the spot, who then directed PW7 to conduct the search of the
scooter. The scooter was having a Diggi (Tool box) and upon
checking the same, opium was recovered which was wrapped C
in a polythene. From the recovered opium, 50 grams opium
was separated for the purposes of sample and a separate
parcel was made of the same. On weighing, the residue opium
was found to be 3 kg and 750 grams. It was sealed in a
separate parcel with the seals SS of Tehsildar, Subhash
Seoran, PW5 and KS of the investigating officer, Kaptan Singh, D
PW7.

     5. Kaptan Singh handed over his seal KS to ASI Manohar
Lal, PW6 whereas PW5 retained his seal with him. The case
property, sample parcel, specimen seal impressions were              E
taken into custody by recovery memo Ext. PG, along with the
scooter. It was attested by the Tehsildar and other witnesses.
A rukka, Ext. PA was sent to the police station, where on the
basis of the same, a formal First Information Report Ext. PA/1
was recorded. Rough site plan, Ext. PF was also prepared by          F
the Investigating Officer. Thereafter, the accused were arrested.
The statements of the witnesses under Section 161 of the
Code of Criminal Procedure, 1973 (for short "CrPC") were
recorded. After completion of the investigation at the spot, the
case property was deposited with tt:e MHC along with the             G
scooter and seal impressions on the same day. A report under
Section 57 of the Act Ext. PG was also sent to the higher officer.
After completing the investigation, a report under Section 173
CrPC was prepared by PW7 and submitted before the court
of competent jurisdiction.
                                                                     H
      1018    SUPREME COURT REPORTS                 [2012] 11 S.C.R.


. A      6. The prosecution examined eight witnesses including Shri
   S.K. Nagpal, Senior Scientific Officer, FSL, Madhuban. The
   accused in his statement under Section 313 CrPC refuted all
   allegations of the prosecution levelled against them and
   pleaded innocence. Accused Kishan Chand stated that ASI
 B Balwan Singh was resident of his village and there was a
   dispute reg:uding land between the two families. The
   possession of the land had been taken by the family of the
   accused from ASI Balwan Singh. Thereafter, he had gone to
   see Sarpanch Bansa Singh of Village Bhoosla in connection
 c with some personal work and at about 4 p.m., he was going
   towards Village Kalar Majra and on the way, Joginder, son of
   Dewa Singh met him at the Buss Adda Bhagal and when they
   were taking tea in a shop, then two police officials came in a
   civil dress and asked them to go to police post Bhagal as he
   was required by ASI Mohinder Singh lncharge Police Post
 0
   Bhagal and, thus, a false case was planted against him.

       7. As already noticed, the Trial Court acquitted accused
   Ramphal, but convicted Kishan Chand and the conviction was
   upheld by the High Court giving rise to the filing of the present
 E appeal.

            8. At this stage itself, we would like to notice certain
      findings of the Trial Court which were recorded, while acquitting
      the accused Ramphal and convicting accused Kishan Chand.
 F        "33. The learned defence counsel further argued that in the
          present case inspite of secret information the information
          was not sent to the higher officer as required under
          Section 42(2) of the NDPS Act nor the case was
          registered. As such, on this sole ground, accused are
 G        entitled to acquittal. The reliance has been placed on
          Beckodan Abdul Rahiman Versus State of Kerala, 2002
          (2) RCR (Criminal)-385, where in that case, police
          recovered opium from accused on receipt of secret
          information on telephone. Information was not reduced in
 H
  KISHAN CHAND v. STATE OF HARYANA                       1019
        [SWATANTER KUMAR, J.]
writing as required under section 42 of the NDPS Act. The          A
conviction was set aside. The reliance was also placed on
Lamin Bojang versus State of Maharashtra, 1997 (2)
RCR- 294.

34. Admittedly in the present case, the secret information
was received against the accused. The investigation                8
officer did not reduce the secret information in writing nor
send the same to the higher officer or to the police station
for registration of the case. Non-compliance of section
42(2) is not fatal to the prosecution case in the present
case, because had the investigating officer tried to take          C
down the secret information in writing and send the same
to the police officer in that eventuality, there was possibility
of the accused to escape as they were to come on a
scooter. The statement of investigating officer proves that
after picketing within 20 minutes, the accused appeared"           D
on the scooter. Since, there was possibility of the accused
to escape, so in such a situation, if the investigating officer
did not reduce into writing the secret information and send
the same to the superior officer, then it cannot be said that
any prejudice has been used to the accused, particularly,          E
when the recovery has been effected in the presence of
Subhash Seoran Teshildar who is an Executive Magistrate.
The Hon'ble Supreme Court in a case Sajjan Abraham
versus State of Kera/a [2001 (2) RCR (Criminal)-808],
wherein it was observed as under:-                                 F
       "In construing any facts to find, whether prosecution
       has complied with the mandate of any provision
       which is mandatory, one has to examine it with
       pragmatic approach. The law under the aforesaid
       act being stringent to the persons involved in the G
       field of illicit drug abuse, the legislature time and·
       again has rr.ade some of the provisions obligatory
       for the prosecution to comply, which the courts have
       interpreted it to be mandatory. This is in order to
                                                              H
    1020    SUPREME COURT REPORTS                   [2012] 11 S.C.R.


A              balance the stringency for an accused by casting
               an obligation on the prosecution for its strict
               compliance. The stringency is because of the type
               of crime involved under it, so that no such person
               escapes from the clutches of law. The court
B              however, while construing such provisions strictly
               should not interpret it so, literally so as to render its
               compliance, impossible. However, before drawing
               such an inference, it should be examined with
               caution and circumspection. In other words, if in a
               case, the following of mandate strictly, results in
c              delay in trapping an accused, which may lead the
               accused to escape, then prosecution case should
               not be thrown out."

        9. The Division Bench of the High Court confirmed the
D finding recorded by the Trial Court. It also recorded that the
  accused was in motion at the time when the secret information
  was received. Since secret information was from a reliable
  source, PW7 acted swiftly and arrested the accused and under
  these circumstances, the secret information report was not
E recorded by the investigating officer immediately nor was it sent
  to the superior officer. Therefore, in these circumstances, it is
  to be seen whether any prejudice was caused to the accused
  or not.

F        10. Relying upon the following paragraph of the judgment
    of this Court regarding 'substantial compliance' in Sajan
    Abraham v. State of Kera/a [(2001) 6 SCC 692], the High
    Court sustained the order of the Trial Court.

        "6 ........ In construing any facts to find, whether the
G       prosecution has complied with the mandate of any
        provision which is mandatory, one has to examine it with
        a pragmatic approach. The law under the aforesaid Act
        being stringent to the persons involved in the field of illicit
        drug traffic and drug abuse, the legislature time and again
H       has made some of its provisions obligatory for the
      KISHAN CHAND v. STATE OF HARYANA                      1021
            [SWATANTER KUMAR, J.]

    prosecution to comply with, which the courts have                A
    interpreted it to be mandatory. This is in order to balance
    the stringency for an accused by casting an obligation on
    the prosecution for its strict compliance. The stringency is
    because of the type of crime involved under it, so that no
    such person escapes from the clutches of the Jaw. The            B
    court however while construing such provisions strictly
    should not interpret them so literally so as to render their
    compliance, impossible. However, before drawing such an
    inference, it should be examined with caution and
    circumsµection. In other words, if in a case, the following      c
    of a mandate strictly, results in delay in trapping an
    accused, which may lead the accused to escape, then the
    prosecution case should not be thrown out."
     11. While challenging the above concurrent findings of the
courts, the learned counsel appearing for the appellant has          D
raised the following contentions for consideration by the court.
      1.   Apparently and, in fact, admittedly there is no
           compliance with the provisions of sub-sections (1)
           and (2) of Section 42 of the Act and they are
           mandatory and not directory. Once, there is non-          E
           compliance of these mandatory provisions, the
           appellant is entitled to acquittal. In this regard, the
           counsel for the appellant has relied upon the
           judgment of this court in the case of Rajinder Singh
           v. State of Haryana [(2011) 8 SCC 130] and the            F
           Constitution Bench judgment in the case of Kamai/
           Singh v. State of Haryana [(2009) 8 SCC 539].
     2.     Once, on similar facts and evidence, and
            particularly for non-production of key of the diggy      G
            of the scooter, the accused Ramphal was
            acquitted, the appellant could not have been
            convicted by the courts, thus, there is inbuilt
            contradiction in the judgments and they suffer from
            error in appreciation of evidence as well as in          H
            application of law.
    1022        SUPREME COURT REPORTS                [2012) 11 S.C.R.


A          3.     The entire recovery is vitiated as PW5, Subhash
                  Seoran, Tehsildar-cum-Executive Magistrate, was
                  never present at the site and there was no
                  compliance to the provisions of Section 50 of the
                  Act as stated. No independent witness had been
B                 associated which itself will show that the prosecution
                  had not been able to establish its case beyond
                  reasonable doubt and that the appellant had been
                  falsely implicated in the case.

c       12. To the contra, the submission on behalf of the State of
  Haryana is that the prosecution has been able to establish its
  case beyond reasonable doubt. There had been substantial
  compliance to the provisions of Section 42 of the Act. The
  compliance with the provisions of Section 57 and the Report
  which was sent vide Ext. PG on 20th July, 2002, fully
0
  establishes the substantial compliance to the provisions of
  Section 42 of the Act. The provisions of Section 50 had also
  been complied with and, therefore, the contentions raised on
  behalf of the appellant have no merit. On the other hand the
E question of falsely implicating the appellant does not arise as
  the secret information was reliable and has so been established
  by the prosecution evidence. The judgment under appeal,
  according to the counsel for the State, does not call for any
  interference.

F      13. First and the foremost, we will deal with the question
  of non-compliance with Section 42(1) and (2) of the Act. It is
  necessary for us to examine whether factually there was a
  compliance or non-compliance of the said provisions and, if so,
  to what effect. In this regard, there can be no better evidence
G than the statement of Investigating Officer PW7 himself. PW7,
  Kaplan Singh in his statement while referring to the story of the
  prosecution as noticed above, does not state in examination-
  in-chief that he had made the report immediately upon receiving
  the secret information and had informed his senior officers.
H
       KISHAN CHAND v. STATE OF HARYANA                      1023
             [SWATANTER KUMAR, J.]

    14. In his examination-in-chief, such statement is                A
conspicuous by its very absence. On the contra, in his cross-
examination by the defence, he clearly admits as under:-

     •....the distance between the place of secret information
     and the place of recovery is about 1Y. kilometre. Secret
     information was not reduced into the writing so no copy of       8
     the same was sent to the higher officer. I did not ask any
     witness of the public in writing to join the raiding party"

        15. The learned Trial Court in para 34 of its judgment
  clearly recorded that admittedly in the present case, the secret C
  information was received against the accused. The
  Investigation Officer did not reduce the secret information in
 writing nor did he 5end the same to the higher officer or to the
  police station for registration of the case. However, stating that
  if this was done, there was possibility that the accused o
  escaped, the trial court observed that if the Investigating Officer
  did not reduce into writing the secret information and sent the
  same to the superior officer, then in light of the given
  circumstances, it could not be said that any prejudice was
. caused to the accused.                                              E
     16. We are unable to contribute to this interpretation and
approach of the Trial Court and the High Court in relation to the
provisions of sub-Section (1) and (2) of Section 42 of the Act.
The language of Section 42 does not admit any ambiguity.
These are penal provisions and prescribe very harsh                   F
punishments for the offender. The question of substantial
compliance of these provisions would amount to
misconstruction of these relevant provisions. It is a settled canon
of interpretation that the penal provisions, particularly with
harsher punishments and with clear intendment of the legislature      G
for definite compliance, ought to be construed strictly. The
doctrine of substantial compliance cannot be called in aid to
answer such interpretations. The principle of substantial
compliance would be applicable in the cases where the
                                                                      H
    1024    SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A language of the provision strictly or by necessary implication
  admits of such compliance.

        17. In our considered view, this controversy is no more res
  integra and stands answered by a Constitution Bench judgment
  of this Court in the case of Kamai/ Singh (supra). In that
B judgment, the Court in the very opening paragraph noticed that
  in the case of Abdul Rashid Ibrahim Mansuri v. State of
  Gujarat [(2000) 2 SCC 513], a three Judge Bench of the Court
  had held that compliance of Section 42 of the Act is mandatory
  and failure to take down the information in writing and sending
C the report forthwith to the immediate officer superior may cause
  prejudice to the accused. However, in the case of Sajan
  Abraham (supra), again a Bench of three Judges, held that this
  provision is not mandatory and substantial compliance was
  sufficient. The Court noticed, if there is total non-compliance of
D the provisions of Section 42 of the Act, it would adversely affect
  the prosecution case and to that extent, it is mandatory. But, if
  there is delay, whether it was undue or whether the same was
  explained or not, will be a question of fact in each case. The
  Court in paragraph 35 of the judgment held as under:-
E
        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
F       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
G       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
H       not in the police station, but while he was on the move
  KISHAN CHAND v. STATE OF HARYANA                      1025
        [SWATANTER KUMAR, J.]
either on patrol duty or otherwise, either by mobile phone,      A
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       B
per clauses (a) to (cf) 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         C
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         D
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.
(cf) While total non-compliance with requirements of sub- E
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 F
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 G
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 H
    1026    SUPREME COURT REPORTS                  [2012] 11 S.C.R.


A        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
B        position got strengthened with the amendment to Section
         42 by Act 9 of 2001.

       18. Following the above judgment, a Bench of this Court
  in the case of Rajinder Singh (supra) took the view that total
C non-compliance of the provisions of sub-Sections (1) and (2)
  of Section 42 of the Act is impermissible but delayed
  compliance with a satisfactory explanation for delay can,
  however, be countenanced.

       19. The provisions like Section 42 or 50 of the Act are the
D provisions which require exact and definite compliance as
  opposed to the principle of substantial compliance. The
  Constitution Bench in the case of Kamai/ Singh (supra) carved
  out an exception which is not founded on substantial
  compliance but is based upon delayed compliance duly
E explained by definite and reliable grounds.

       20. While dealing with the requirement of complying with
  the provisions of Section 50 of the Act and keeping in mind its
  mandatory nature, a Bench of this Court held that there is need
F for exact compliance without ariy attribute to the element of
  prejudice, where there is an admitted or apparent non-
  compliance. The Court in the case of State of Delhi v. Ram
  Avtar alias Rama [(2011) 12 SCC 207], held as under:-

      26. The High Court while relying upon the judgment of this
G Court in Ba/dev Singh and rejecting the theory of substantial
  compliance, which had been suggested in Joseph Fernandez,
  found that the intimation did not satisfy the provisions of Section
  50 of the Act. The Court reasoned that the expression "duly"
  used in Section 50 of the Act connotes not "substantial" but
H "exact and definite compliance". Vide Ext. PW 6/A, the
      KISHAN CHAND v. STATE OF HARYANA                    1027
            [SWATANTER KUMAR, J.1

appellant was informed that a gazetted officer or a Magistrate     A
could be arranged for taking his search, if he so required. This
intimation could not be treated as communicating to the
appellant that he had a right under law, to be searched before
the said authorities. As the recovery itself was illegal, the
conviction and sentence has to be set aside.                       B

      27. It is a settled canon of criminal jurispri~~ance that when
a safeguard or a right is provided, favouring the accused,
compliance therewith should be strictly construed. As already
held by the Constitution Bench in Vijaysinh Chandubha Jadeja, C
the theory of "substantial compliance" would not be applicable
to such situations, particularly where the punishment provided
is very harsh and is likely to cause serious prejudice against
the suspect.. The safeguard cannot be treated as a formality,
but it must be construed in its proper perspective, compliance
therewith must be ensured. The law has provided a right to the D
accused, and makes it obligatory upon the officer concerned
to make the suspect aware of such right. The officer had prior
information of the raid; thus, he was expected to be prepared
for carrying out his duties of investigation in accordance with
the provisions of Section 50 of the Act. While discharging the E
onus of Section 50 of the Act, the prosecutio!I has to establish
that information regarding the existence of such a right had been
given to the suspect. If such information is incomplete and
ambiguous, then it cannot be construed to satisfy the .
requirements of Section 50 of the Act. Non-compliance with the F
provisions of Section 50 of the Act would cause prejudice to
the accused, and, therefore, amount to the denial of a fair trial.
     21. When there is total and definite non-compliance of such
statutory provisions, the question of prejudice loses its          G
significance. It will per se amount to prejudice. These are
indefeasible, protective rights vested in a suspect and are
incapable of being shadowed on the strength of substantial
compliance.
                                                                   H
    1028    SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A       22. The purpose of these provisions is to provide due
  protection to a suspect against false implication and ensure that
  these provisions are strictly complied with to further the
  legislative mandate of fair investigation and trial. It will be
  opposed to the very essence of criminal jurisprudence, if upon
B apparent and admitted non-compliance of these provisions in
  their entirety, the Court has to examine the element of prejudice.
  The element of prejudice is of some significance where
  provisions are directory or are of the nature admitting
  substantial compliance. Where the duty is absolute, the element
c of prejudice would be of least relevancy. Absolute duty coupled
  with strict compliance would rule out the element of prejudice
  where there is total non-compliance of the provision.

       23. Reverting to the facts of the present case, we have
  already noticed that both the Trial Court and the High Court
D have proceeded on the basis of substantial compliance and
  there being no prejudice to the accused, though clearly
  recording that it was an admitted case of total non-compliance.
  The statement of PW7 puts the matter beyond ambiguity that
  there was 'total non-compliance of the statutory provisions of
E Section 42 of the Act'. Once, there is total non-compliance and
  these provisions being mandatory in nature, the prosecution
  case must fail.
       24. Reliance placed by the learned counsel appearing for
F the State on the case of Sajan Abraham (supra) is entirely
  misplaced, firstly in view of the Constitution Bench judgment of
  this Court in the case of Kamai/ Singh (supra). Secondly, in
  that case the Court was also dealing with the application of the
  provisions of Section 57 of the Act which are worded differently
G and have different requirements, as opposed to Sections 42
  and 50 of the Act. It is not a case where any reason has come
  in evidence as to why the secret information was not reduced
  to writing and sent to the higher officer, which is the requirement
  to be adhered to 'pre-search'. The question of sending it
  immediately thereafter does not arise in the present case, as
H
       KISHAN CHAND v. STATE OF HARYANA                      1029
             [SWATANTER KUMAR, J.)

it is an admitted position that there is total non-compliance of      A
Section 42 of the Act. The sending of report as required under
Section 57 of the Act on 20th July, 2000 will be no compliance,
factually and/or in the eyes of law to the provisions of Section
42 of the Act. These are separate rights and protections
available to an accused and their compliance has to be done           B
in accordance with the provisions of Sections 42, 50 and 57
of the Act. They are neither inter-linked nor inter-dependent so
as to dispense compliance of one with the compliance of
another. In fact, they operate in different fields and at different
stages. That distinction has to be kept in mind by the courts         c
while deciding such cases.
     25. Now, we will deal with a serious doubt that has been
pointed out on behalf of the appellant in the recovery and the
very presence of PW5, Subhash Seoran, at the time of
recovery. The prosecution has not been able ~o establish this         D
aspect of the case beyond reasonable doubt. According to PW7
after stopping the scooter of the accused at T-Point, Theh
Banehra, he had sent for PW5 who had reached there and
recovery was effected in his presence after giving option to the
accused as required under Section 50 of the Act. We do not            E
consider it necessary to deal with the other contentions including
the plea taken with regard to compliance of Section 50 of the
Act. We would only confine ourselves in regard to the doubt that
has been created in recovery of the contraband from the custody
of the accused.                                                       F
     26. PW5 in his statement had categorically stated that he
had come to the site in his official jeep No. HR 09 7007 driven
by DW1, Desraj and no other person was in the jeep. He
claimed to have left the spot at about 11.15 a.m. on 19th July,
2000. The accused had contended that he was falsely                   G
implicated, no independent witness was associated in the
recovery or in the entire investigation and lastly that no recovery
was effected and even PW5 has falsely deposed before the
court. To support this contention, the accused had examined
DW-1 Desraj, the driver of the car along with log book of Jeep        H
    1030    SUPREME COURT REPORTS                   [2012] 11 S.C.R.

A No. HR 09 7007. It will be interesting to note the examination
  in chief of this witness.
        "I have brought the Log Book of Jeep no. HR09-7007. I
        am working as driver in Tehsil Office, at Guhla. In this Log
        Book at sr. no. 422 dated 19.7.2K, the vehicle was used
B       by Naib Tehsildar from 12.30 P.M. to 7 P.M. and it was
        used in the area of Kamehri, Baupur, Gagarpur, Harnoli,
        Landaheri and the beginning of journey, the reading of
        speedometer was 85056 and closing of the journey was
        85173. Total numbers covered 117 kilometers. The Naib
c       Tehsildar was Sh. Batti Sahib, of Guhla. Except this
        journey, the said vehicle has not gone anywhere. I had not
        gone with Sh. Subhash Seoran, the then Tehsildar at the
        area of village Theh Banehra at its T-point or in that area.
        Copy of entry in the Log book is Ex. 01, nor I went in this
D       vehicle with Tehsildar Sh. Subhash Seoran in the area of
        village Bhagal or at the turn of viii. Theh Banehra. The entry
        of the movement of the vehicle is definitely recorded in the
        Log book. It is correct that I had not gone anywhere with
        Tehsildar Guhla Sh. Subhash Seoran on 19.7.2000.
E       It is incorrect to suggest that the entries in the Log Book
        has not been made correctly and that every movements
        of the vehicles are not mentioned in this log book, rather
        it has been made later on as per convenience of the
        driver. It is incorrect to suggest that on the alleged day, i.e.
F       19.7.2000, the vehicle was used by the Tehsildar Sh.
        Subhash Seoran and I was also with him. It is further
        incorrect that on 19.7.2000, I had visited the area of village
        Bhagal at the turning of viii. Theh Banehra along with
        Tehsildar Subhash Seoran in the aforesaid jeep."
G       27. In his cross-examination, except the suggestion that
  every movement of the vehicles is not entered in the log book
  and that the vehicle was used by PW7 on that day, which
  suggestion he categorically denied, no other question was pu(
  to this witness. One has no reason to disbelieve the statement
H of DW1 particularly when he produced the log book maintained
       KISHAN CHAND v. STATE OF HARYANA                     1031
             [SWATANTER KUMAR, J.]
in normal course of business. The log book showed a clear            A
entry at serial no. 422 dated 19th July, 2000 where the vehicle
in question was stated to be used by Mr. Bhatti, Naib Tehsildar,
from 12.30 p.m. to 7.00 p.m. and was driven for 117 kms. PW5,
Tehsildar-cum-Executive Magistrate, in fact, did not use the
official vehicle on that day as per the log book. The witness even   B
gave the exact reading of the meter of the vehicle which showed
that it was driven for 117 kilometers on that date by the Naib
Tehsildar, not even anywhere near to the area where the
accused is alleged to have been apprehended It was also
stated that except that journey, the vehicle had gone nowhere.       c
He specifically stated that he had never taken PW5 to the place
in question. Once, the statement of this witness is examined
with the statement of PW7, that he did not associate any private
person, independent witness in the recovery or in the entire
process of investigation and that he did not even record such
                                                                     0
a fact in this proceedings casts a shadow of doubt over the
case of the prosecution. Total non-compliance of Section 42,
non-involvement of any independent witness at any stage of the
investigation and the presence of PW5 at the spot being so
very doubtful, thus, compel this Court to hold that the
prosecution has failed to prove its case beyond reasonable           E
doubt.
     28. As already noticed, we do not propose to discuss other
arguments raised on behalf of the appellant. We may also
notice here that both the High Court and the Trial Court have        F
noticed the above evidence as well as its legal position. Thus,
the Trial Court as well as the High Court has fallen in error of
law as well as that of appreciation of evidence.
    29. Resultantly, the present appeal is accepted. The
accused is acquitted of the offence under Section 18 of the Act      G
and is directed to be set at liberty forthwith. The case property
be disposed of in accordance with the provisions of the Act.
R.P.                                            Appeal allowed.