BAHADUR SINGH v.

STATE OF HARYANA (Special Leave Petition (Crl.) No. 5523 of 2009)

APRIL 6, 2010 [Altamas Kabir and Cyriac Joseph, JJ.]

2010 (4) SCR 402

The Judgment of the Court was delivered by

ALTAMAS  KABIR,  J. 1.  The  petitioner  was  convicted  for  an  offence  punishable  under  Section  15  of  the  Narcotic  Drugs  and  Psychotropic  

Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) and was  

sentenced to undergo rigorous imprisonment for a period of 12 years and to  

pay a fine of Rs. One lakh and in default of payment of the same to undergo  

further  rigorous  imprisonment  for  a  period  of  three  years.  The  allegation  

against the petitioner that he had been found in possession of six bags each  

containing 32 kilograms of Poppy Husk without any permit or licence, was  

found to have been proved by the Trial Court as well as the High Court. In  

order  to  appreciate  the  submissions  made  by  Mr.  R.K.  Talwar,  learned  

counsel appearing for the petitioner, it is necessary to set out the facts of the  

case in brief.

2.  On  2nd  December,  1995,  Gian  Singh,  Inspector,  along  with  other  

Police officers, was on patrol duty at the turning of Bhawani Khera on the  

Thanesar-Jhansa Road. He received a secret information that the petitioner  

herein, a resident of Singpura, was selling Poppy Husk in his house and the  

same could be recovered in case a raid was conducted. In the meantime, one  

Sukhdev Singh son of Sampuran Singh, reached the spot and he was also  

joined  with  the  Police  party  as  an  independent  witness.  The police  party  

thereafter raided the house of the petitioner, who was present, and on being  

interrogated he disclosed that he had concealed six bags in a locked room  

under  the  wheat  chaff  and  that  the  key  was  with  him.  The  disclosure

statement made by the petitioner was reduced into writing and the thumb  

impression of the petitioner was affixed thereupon and attested by witnesses.  

Thereafter,  Gian  Singh  sent  a  wireless  message  to  the  Deputy  

Superintendent  of  Police,  Kurukshetra,  who rushed to  the spot  and in  his  

presence  the  petitioner  led  the  police  party  to  the  room in  question  and  

opened the lock with a key which was in his possession and from the said  

room six bags, each containing 32 kilograms of Poppy Husk, were recovered  

from underneath the wheat chaff kept in the room. Thereafter, as required,  

samples were taken out from the seized contraband and the remaining Poppy  

Husk was sealed and taken into possession vide a separate recovery memo  

and attested by the witnesses and the same was sent to the Police Station  

along  with  the  Ruqa  on  the  basis  whereof  the  First  Information  Report  

(Exh.PB/1)  was registered.  A site plan was also prepared and statements  

were duly recorded. After completion of investigation challan was duly filed  

before  the  Special  Court,  Kurukshetra.  Charge  was  framed  against  the  

petitioner under Section 15 of the NDPS Act, to which he pleaded not guilty  

and claimed to be tried. On the evidence adduced by the prosecution, the  

petitioner was found guilty of  the charged offence and was convicted and  

sentenced in the manner indicated hereinbefore.

3. Aggrieved by the judgment of conviction and sentence, the petitioner  

preferred the appeal before the High Court, being Criminal Appeal No.107-DB  

of  2000,  which  was  partly  allowed  to  the  extent  that  the  sentence  of  

imprisonment  was  reduced  from  12  years  to  10  years.  The  rest  of  the  

judgment of the Trial Court was not disturbed.

4.  Mr.  R.K.  Talwar,  learned  Advocate,  appearing  for  the  petitioner,  

assailed the judgments both of the Trial  Court  as well  as the High Court,  

mainly on two grounds. He urged that the prosecution case stood vitiated on  

account of non-compliance of the provisions of Sections 42 and 57 of the  

NDPS Act.  He submitted that,  as has been held in various decisions,  the  

provisions of Section 42 of the NDPS Act are mandatory and any failure by

the  investigating  agency  to  comply  with  the  same  would  vitiate  the  

investigation  and  also  the  trial  on  the  basis  of  such investigation.  In  that  

regard  Mr.  Talwar  referred  to  the  decision  of  this  Court  in  Directorate  of  

Revenue and another vs.  Mohammed Nisar Holia  [(2008) 2 SCC 370] in  

which it was, inter alia, held that since the information as to the offence had  

not been reduced into writing by the officer who received the same, but by  

someone later on, the High Court had rightly set aside the conviction of the  

accused on the basis that the statutory requirement of Section 42 had not  

been complied with. Mr. Talwar pointed out that in the said case this Court  

maintained the judgment of the High Court on the same grounds relating to  

non-compliance of the provisions of Section 42 of the NDPS Act.  

5.  Mr.  Talwar  also  referred  to  the  Constitution  Bench decision  of  this  

Court in Karnail Singh vs.  State of Haryana [(2009) 8 SCC 539 ] wherein the  

effect of the amendment of Section 42 with effect from 2.10.2001, relaxing the  

time  for  sending  the  information  from  “forthwith”  “within  72  hours”  was  

considered along with the effect of the decisions rendered by this Court in the  

case of Abdul Rashid Ibrahim Mansuri vs.  State of Gujarat [(2000) SCC (Cri)  

496]  and  Sajan Abraham vs.   State of  Kerala [(2001)  6 SCC 692]  in  the  

context of the advent of cellular phones and wireless phones in dealing with  

emergent  situations.  The Constitution  Bench  held  that  whether  there  was  

adequate or substantial compliance with Section 42 or not would have to be  

decided on the facts of each case and non-compliance with Section 42 may  

not otherwise vitiate the trial if it did not prejudice the accused.  

6. Mr. Talwar next submitted that even the provisions of Section 57 of the  

NDPS Act had not been complied with, inasmuch as, after the petitioner’s  

arrest the police authorities did not, within the time prescribed, make a full  

report  of  all  the  particulars  of  such  arrest  and  seizure  to  his  immediate  

superior. Mr. Talwar submitted that the prosecution also stood vitiated by the  

aforesaid lapse.

7. Apart  from the two aforesaid points,  Mr.  Talwar also urged that the  

petitioner had not been found to be in conscious possession of the seized  

Poppy Husk and the mere fact that the bags containing the Poppy Husk were  

recovered  from  his  premises  did  not  automatically  establish  “conscious  

possession”. Mr. Talwar submitted that, in any event, having regard to the  

failure of the investigating agency in complying with the mandatory provisions  

of  Sections  42  and  57,  the  trial  of  the  petitioner  and  his  conviction  and  

sentence therein stood vitiated and the High Court  erred in upholding the  

same.  

8.  Appearing  for  the  State  of  Haryana,  Mr.  Rao  Ranjeet,  learned  

Advocate, while refuting the submissions of Mr. Talwar, submitted that the  

view of this Court with regard to the mandatory requirement of Section 42 had  

to a great extent been watered down with the advent of electronic equipment  

such as wireless as also cell phones. Mr. Ranjeet submitted that even prior to  

such consideration, this Court in Sajan Abraham’s case (supra) had taken the  

view that in an emergent situation it may not always be possible to strictly  

comply with the provisions of Section 42 since the delay involved in effecting  

such strict compliance could help the offender to remove the contraband or to  

flee  the  place  so  as  to  make  any  raid  for  recovery  of  such  contraband  

meaningless. He pointed out that in Sajan Abraham’s case (supra) this Court  

had held that it was not possible for the officer concerned, who was on patrol  

duty, to comply with the requirements of sub-sections (1) and (2) of Section  

42 as the same would have delayed the trapping of the accused which might  

have led to his escape.  

9. With regard to non-compliance of Section 57 of the above Act it was  

held that the same was not mandatory and that substantial compliance would  

not vitiate the prosecution case, since the copies of the FIR along with other  

remarks regarding the arrest of the accused and seizure of the contraband  

articles  had  been  sent  by  the  concerned  officer  to  his  superior  officer  

immediately  after  registering  the  case.  It  was  held  that  this  amounted  to

substantial compliance and mere absence of such report could not be said to  

have prejudiced the accused. It was further held that since the Section was  

not mandatory in nature, when there were substantial compliance, it would  

not vitiate the prosecution case.

10.  Mr.  Ranjeet  also referred to the decision of  this Court  in  State of  

Punjab vs.  Balbir Singh [(1994) 3 SCC 299] where also similar views were  

expressed and such views had been relied upon by this Court in deciding  

Sajan Abraham’s  case (supra). Mr. Ranjeet submitted that no grounds have  

been made out on behalf of the petitioner warranting interference with the  

judgment impugned in the Special Leave Petition.  

11. We have carefully considered the submissions made on behalf of the  

respective  parties  and  we  are  inclined  to  agree  with  the  submissions  

advanced by Mr. Rao Ranjeet appearing on behalf of the State of Haryana.  

12. It cannot but be noticed that with the advancement of technology and  

the availability of high speed exchange of information, some of the provisions  

of  the  NDPS Act,  including  Section  42,  have  to  be  read  in  the  changed  

context.  Apart from the views expressed in  Sajan Abraham’s  case (supra)  

that the delay caused in complying with the provisions of Section 42 could  

result in the escape of the offender or even removal of the contraband, there  

would  be  substantial  compliance,  if  the  information  received  were  

subsequently sent to the superior officer. In the instant case, as soon as the  

investigating officer  reached the spot,  he sent  a wireless message to  the  

Deputy Superintendent of Police, Kurukshetra, who was his immediate higher  

officer and subsequent to recovery of the contraband, a Ruqa containing all  

the facts and circumstances of the case was also sent to the Police Station  

from the spot from where the recovery was made on the basis whereof the  

First Information Report was registered and copies thereof were sent to the  

Ilaqa Magistrate and also to the higher police officers. As was held by the  

High Court, there was, therefore, substantial compliance with the provisions

of Section 42 of the NDPS Act and no prejudice was shown to have been  

caused to the accused on account of non-reduction of secret information into  

writing  and  non-sending  of  the  same  to  the  higher  officer  immediately  

thereafter.

13. Apart from the decision in Sajan Abraham‘s case (supra), the decision  

of the Constitution Bench in  Karnail Singh’s case (supra), has also made it  

clear that non-compliance with the provisions of Section 42 may not vitiate  

the trial if it did not cause any prejudice to the accused. Furthermore, whether  

there is adequate compliance of Section 42 or not is a question of fact to be  

decided in each case.

14. As far as compliance with the provisions of Section 57 of NDPS Act is  

concerned, as has been indicated earlier, it has been held by this Court that  

the same was not mandatory, and, in any event, information of the arrest of  

the petitioner and seizure of the contraband had been duly reported to the  

local police station on the basis of which the First  Information Report  had  

been drawn up.

15. As to the submissions advanced with regard to conscious possession  

of  the  seized  Poppy Husk,  we are  of  the  view that  the  same cannot  be  

accepted having particular regard to the fact that the six bags containing 32  

kilograms of Poppy Husk in each of the bags were not only recovered from  

the premises of the petitioner but from a room which was opened by him with  

a key in his possession.

16. We, accordingly, find no merit in the Special Leave Petition, and the same  

is dismissed.