Full Judgment Text
CRL.A. 123 of 1997 REPORTABLE
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 123 OF 1997
STATE OF KARNATAKA Appellant (s)
VERSUS
DONDUSA NAMASA BADDI Respondent(s)
O R D E R
1. We have heard the learned counsel for the parties.
2. This matter arises out of a search and seizure
rd
which took place on 3 September, 1987. This appeal
was also adjourned time and again since the year 1997
to await the decision of the Constitution Bench. This
decision has come and is reported as Karnail 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, 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
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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 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 Kerala (2001) 6
SCC 692 which had also been decided by a three Judge
Bench it had been held that substantial compliance with
the 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
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 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 immediateofficial
superior and not to any other
condition of the Section.
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And again.
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 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.”
3. Concededly in the present matter, no information
was taken down in writing by the police officer or
conveyed to the immediate police officer. Shri A.K.
Mishra, the learned State counsel has, however,
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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 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.
.......................J
[HARJIT SINGH BEDI]
.........................J
[CHANDRAMAULI KR. PRASAD]
NEW DELHI
AUGUST 05, 2010.