REPORTABLE  IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(CRL) No.5523 OF 2009

Bahadur Singh              … Petitioner  Vs.

State of Haryana … Respondent

J U D G M E N T

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  

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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  

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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  

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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  

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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” to “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  

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[(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.

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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.  

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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  

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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  

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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  

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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.

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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  

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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.

………………………………………….J. (ALTAMAS KABIR)

………………………………………….J. (CYRIAC JOSEPH)

New Delhi Dated:06.04.2010

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