STATE OF KARNATAKAversusDONDUSA NAMASA BADDI

                         [2010] 9 S.C.R. 670


A                     STATE OF KARNATAKA
                                  v.
                   DONDUSA NAMASA BADDI
                 (Criminal Appeal No 123 of 1997)

                          AUGUST 5, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.)

         Narcotic Drugs and Psychotropic Substances Act, 1985:

        s.42(2) - Non-compliance of - HELD: Concededly, no
   information was taken down in writing by the police officer or
   conveyed to his immediate superior- It is not the case of the
   prosecution that sufficient time was not available to record the
   information in writing and send it to the superior officer - In
·D the circumstanc(f§, any oral evidence of the police officer will
   not be in compliance with the provisions of s. 42(2) - Appeal
   of the State dismissed.

      Kamai/ Singh vs. State of Haryana 2009 (11) SCR 470
E = (2009) s sec 539 - followed.
       Abdul Rashid Ibrahim Mansuri vs. State of Gujarat 2000
  (1) SCR 542 = (2000) 2 SCC 513; and Sajan Abraham v.
  State of Kera/a 2001 (1) Suppl. SCR 335 = (2001) 6 SCC
F 692 - referred to.
                         Case Law Reference:
      2009 (11) SCR 470           followed              para 2
      2000 (1) SCR 542            referred to           para 2
G
      2001 (1) Suppl. SCR 335 referred to               para 2

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 123 of 1997.

H                                670
  STATE OF KARNATAKA v. DONDUSA NAMASA                   671
                  BADDI
    From the Judgment and Order dated 14.07.1995 of the          A
High Court of Karnatka at Bangalore in Criminal Appeal No.
277 of 1993.

    Anil Kumar Mishra, Abhishek Malviya, Ramesh Mishra,
Sanjay R. Hegde for the Appellant.                               B

    S.N. Bhat for the Respondent.

    The following order of the Court was delivered

                           ORDER                                 c
    1. We have heard the learned counsel for the parties.

     2. This matter arises out of a search and seizure which
took place on 3rd September, 1987. This <appeal was also
adjourned time and again since the year 1997 to await the o
decision of the Constitution Bench. This decision has come and
is reported as Kamai/ Singh V. State of Haryana (2009) 8
SCC 539. The question· posed was as to the effect of non-
compliance with the provisions of Section 42 and in particular
42(2) of the Narcotic Drugs and Psychotropic Substances Act, E
1985. This matter was referred to the Constitution Bench owing
to an apparent conflict between two judgments of this Court,
Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2
SCC 513 wherein it was held by a three Judge Bench that
compliance with Section 42(2) of the Act was mandatory and F
failure of the police officer to take down the information
received by him in writing and to forthwith send a report to his
immediate official superior would cause prejudice to the
accused whereas in Sajan Abraham v. State of Kera/a (2001)
6 sec 692 which had also been decided by a three Judge
Bench it had been held that substantial compliance with the G
provisions of Section 42 was sufficient. In Karnail Singh's case,
however, the Constitution Bench has observed thus:

    32. Under Section 42(2) as it stood prior to the amendment
    such empowered officer who takes down any information        H
    672       SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A         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 with this provision the same would adversely
          affect the prosecution case and to that extent it is
B         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 Act non-compliance of which may vitiate a trial
c         has been restricted only to the provision of sending a
          copy of the information written down by the empowered
          officer to immediateofficial superior and not to any other
          condition of the Section.

          And again.
D
          35 (d) While total non-compliance with requirements of
          sub-sections (1) and (2) of section 42 is impermissible,
          delayed compliance with satisfactory explanation about the
          delay will be acceptable compliance with Section 42. To
E         illustrate, if any delay may result in the accused escaping
          or the goods or evidence being destroyed or removed, not
          recording in writing the information received, before
          initiating action, or non-sending a copy of such information
          to the official superior forthwith, may not be treated as
F         violation of Section 42. But if the information was received
          when the police officer was in the police station with
          sufficient time to take action, and if the police officer fails
          to record in writing the information received, or fails to
          send a copy thereof, to the official superior, then it will be
          a suspicious circumstance being a clear violation of
G
          section 42 of the Act. Similarly, where the police officer
          does not record the information at all, and does not inform
          the official superior at all, then also it will be a clear
          violation of section 42 of the Act. Whether there is
          adequate or substantial compliance with section 42 or not
H
   STATE OF KARNATAKA v. DONDUSA NAMASA                       673
                   BADDI

       is a question of fact to be decided in each case. The above    A
       position got strengthened with the amendment to section
       42 by Act 9 of 2001."

     3. Concededly in the present matter, no information was
taken down in writing by the police officer or conveyed to the        8
immediate police officer. Shri A.K. Mishra, the learned State
counsel has, however, forcefully argued that there was evidence
in the oral evidence of P.W. 10, the investigating officer, that
he had complied the formalities enjoined by Section 42(2).

      4. It is not the case of the prosecution that sufficient time   C
was not available to record the information in writing and send
it to the superior officer and in the face of it, we are of the
opinion that any oral evidence of the police officer will not be
in compliance with the provisions of Section 42(2) of the Act.

       5. We, accordingly, dismiss the State appeal.

R.P.                                           Appeal dimissed.