Karnail
Singh Vs. State of Haryana [2009] INSC 1312 (29 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 36
OF 2003 Karnail Singh .... Appellant(s) Versus State of Haryana ....
Respondent(s) WITH
CRIMINAL APPEAL NO. 606 OF 2004
P.
Sathasivam, J.
1.
In the case of Abdul Rashid 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 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 Kerala, (2001) 6 SCC 692, which was also decided
by a three-Judge Bench, it was held that Section 42 was not mandatory and
substantial compliance was sufficient. In view of the conflicting opinions
regarding the scope and applicability of Section 42 of the Act in the matter of
conducting search, 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 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 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 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 making provisions for the implementation of
international conventions relating to narcotic drugs and psychotropic
substances to which India has become a party.
3.
Let us consider the Scheme of the NDPS Act and its 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
which we are concerned relates to power of entry, search, seizure and arrest
without warrant or authorization. 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 and the enforcement of
such law on the one hand and the protection of citizens from oppression and
injustice on the 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 indiscriminate exercise unless strict compliance is
required. The statute mandates that the prosecution must prove compliance with
the said provisions.
1.
2.
3.
4.
The facts in Abdul Rashid Ibrahim Mansuri (supra) were as follows:
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 autorickshaw which was 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 found concealed
therein. The value of the said contraband 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 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 them. He 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 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 the 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) 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 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 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 prescribed in Section 50 of the Act. After referring to the dictum
laid 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:
"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 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 the trial may not vitiate on that score alone.
Nonetheless
the resultant position would be one of causing prejudice 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 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 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 what information he got before he proceeded to the
scene. 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 be counted as a 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 favour by the 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 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 case of absolute non-compliance with
the requirements of Section 42(1) and (2).
5.
The facts in Sajan Abraham v. State of Kerala (Supra), were
completely different. The appellant/accused - Sajan Abraham was put on trial
for an offence punishable under 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 Constables of the Special Squad got information
at about 7.00 p.m. 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 police party. Thereafter PW 5 along with his police
party including PW 3 and other members 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 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 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 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 punishable under Section 21 of the Act,
hence convicted and 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 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 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 Chapter IV of the Act and send it forthwith to his immediate 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 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 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 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 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 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 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 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
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 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 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 in illicit drug trafficking and drug
abuse, the legislature has 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 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 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 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
officer superior in rank to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intelligence or any other
department of the Central Government or of the Border Security Force as is
empowered in this behalf by general or special order by the Central Government,
or any such officer (being an officer superior in rank to a peon, sepoy or
constable) of the revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this behalf by general or
special order of the State Government, if he has reason to believe from
personal knowledge or information given by any person and taken down in writing
that any narcotic drug, or psychotropic substance, in respect of which an
offence punishable under Chapter IV has been committed or any document or other
article which may furnish evidence of the commission of such offence is kept or
concealed in any building, conveyance or enclosed place, may, between sunrise
and sunset,-- (a) enter into and search any such building, conveyance or place;
(b) in
case of resistance, break open any door and remove any obstacle to such entry;
(c) seize
such drug or substance and all materials used in the manufacture thereof and
any other article and any animal or conveyance which he has reason to believe
to be liable to confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the commission of any
offence punishable under Chapter IV relating to such drug or substance;
and (d)
detain and search, and, if he thinks proper, arrest any person whom he has
reason to believe to have committed any offence punishable under Chapter IV
relating to such drug or substance:
Provided
that if such officer has reason to believe that a search warrant or
authorisation cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an offender, he may enter
and search such building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.
(2) Where
an officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall forthwith
send a copy thereof to his immediate official superior."
Sub-section
(2) as replaced by Act 9 of 2001 is extracted below:
"(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."
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 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 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.
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 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 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.
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
amendment in the year 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 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 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 concealed in any building etc., he may carry out the arrest or
search without a warrant between sunrise and sunset 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 belief.
To this
extent these provisions are mandatory and contravention of the same would
affect the prosecution case and vitiate the trial.
(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 affects the prosecution case. 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."
Abdul
Rashid was followed in Koluttumottil Razak vs. State of Kerala - 2004 (4) SCC
465, which was also a case of total 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 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 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 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 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 along with
other records regarding arrest of the accused immediately to his superior
officer. It is 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 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 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.
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
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 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.
14.
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:
"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 person whom he has reason to believe to have
committed any offence punishable under Chapter IV. Vide sub-section (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 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 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 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 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 warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility for the
escape of an offender, he may enter and search such building, conveyance or
enclosed place, at any time between sunset and sunrise, after recording the grounds
of his belief. Vide sub- section (2) of Section 42, the empowered 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 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 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 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."
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 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. The unamended Section 50 as existed
during that period is as follows:
"Section
50 - Conditions under which search of persons shall be conducted (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 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).
(3) The
Gazetted Officer or the Magistrate before whom 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 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 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:
"(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 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).
(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 send a copy thereof to his immediate official superior."
Through
this amendment the strict procedural requirement as mandated by Baldev Singh's
case was avoided as relaxation and 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 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. 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.
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 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 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 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 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 in India has assured certain
expectation regarding the quality, reliability and usefulness of the
instantaneous messages. This technology has taken part in the system of police
administration 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 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 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 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/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 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 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 nature referred to in Sub-section
(1) of section 42) from any person had to record it in writing in the concerned
Register and forthwith send a copy to his immediate official superior, before
proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But
if the information was received when the officer was not in the police station,
but while he was on the move either on patrol duty or otherwise, either by
mobile phone, or other means, and the information calls for immediate action
and any delay would have resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take down in writing the
information given to him, in such a situation, he could take action as per
clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical,
record the information in writing and forthwith inform the same to the official
superior .
(c) In
other words, the compliance with the requirements of Sections 42 (1) and 42(2)
in regard to writing down the information received and sending a copy thereof
to the superior officer, should normally precede the entry, search and seizure
by the officer. But in special circumstances involving emergent situations, the
recording of the information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable period, that is after the
search, entry and seizure. The question is one of urgency and expediency.
(d) While
total non-compliance of requirements of sub-sections (1) and (2) of section 42
is impermissible, delayed compliance with satisfactory explanation 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
action, or non-sending a copy of such information to the official superior
forthwith, may not be treated as violation of section 42. But if the
information was received when the police officer was in the police station with
sufficient time to take action, and if the police officer fails to record in
writing the information received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a clear violation of
section 42 of the Act. Similarly, where the police officer does not record the
information at all, and does not inform the official superior at all, then also
it will be a clear violation of section 42 of the Act. Whether there is
adequate or substantial compliance with section 42 or not is a question of fact
to be decided in each case. The above position got strengthened with the
amendment to section 42 by Act 9 of 2001.
18) We
answer the reference in the manner aforesaid. Let the appeals be now placed for
disposal before the appropriate Bench.
.......................................CJI (K.G. BALAKRISHNAN)
..........................................J. (R.V. RAVEENDRAN)
..........................................J. (D.K. JAIN)
..........................................J. (P. SATHASIVAM)
..........................................J. (J.M. PANCHAL)
NEW DELHI;
JULY 29, 2009.
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