1

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1034 OF 2003

DALEL SINGH ...APPELLANT

VERSUS

STATE OF HARYANA  ...RESPONDENT

J U D G M E N T  

V.S.SIRPURKAR,J.

1. This is an appeal by the appellant-accused against his  

conviction for the offence under Section 20 of the Narcotic  

Drugs and Psychotropic Substances Act, 1985  (in short “NDPS  

Act”) and the consequent sentence of R.I. for 10 years and to  

pay fine of Rs. 1.5 lakhs, in default to undergo further R.I.  

for one year.

2. The prosecution story  in very short conspectus is that  

on 4.7.1997 at about 2 p.m., Inspector  Mahabir Singh along  

with other police officials was present at Gubhana bus-stop  

where  he received a secret information that the appellant-

accused  was  doing  the  business  of  selling  charas  and  was  

keeping  charas  in  the  courtyard  of  his  house.   On  this  

information, Inspector Mahabir Singh immediately informed his  

superior Kala Ramchandran, Additional Superintendent of Police  

on wireless and the police party went to the house of the

2

accused  after  joining  Surajbhan,  Namberdar  and  Chanderbhan,  

Chowkidar as witnesses.  In the meantime, ASP Kala Ramchandern  

also reached the spot and directed the Inspector Mahabir Singh  

to  conduct  the  search  of  the  premises.   The  house  of  the  

accused  which  was  in  a  gher  (compound)  was  found  locked.  

Ultimately, it was the wife of the accused who brought the key  

of that “gher”.  The “gher” had three rooms.  The “gher” was  

opened and searched.  In the fodder room (kotha of tura )  

inside the “gher”, one plastic bag  was found which was opened  

and checked and charas weighing 6.5 kilo gram was recovered.  

The usual investigation went on.  The samples were collected  

and  sent  along  with  the  seal;  a  rukka  (information)  was  

immediately sent on the basis of which the first information  

report was registered in the concerned police station.   In  

support  of  its  case,  prosecution  examined  PW6  Inspector  

Mahabir Singh, PW5 ASP Kala Ramachandra apart from examining,  

PW1  Surajbhan, PW2 Satbir Singh, PW3 Constable Sunil Kumar  

and PW4 ASI Hari Singh.  They were all part of the raiding  

party along with Inspector Mahabir Singh.  On the basis of  

their evidence, the trial court convicted the accused against  

which there was an appeal before the High Court.  The High  

Court dismissed the appeal.  Hence, the present appeal.

3. Mr. Ratan Kumar Choudhary, learned   counsel appearing

3

for the appellant  very painstakingly took us through the  

evidence of all the witnesses and urged that this was a case  

where there was a total non-compliance of the provision of  

Section 42 of the NDPS Act inasmuch as there was no recording  

of the information prior to taking any action.  Under the said  

Section,  the  investigating  officer  had  to  record  the  

information  and  send  the  same  to  the  immediate  superior  

officer.  However, that was not done either before the raid or  

even thereafter.  It was pointed that the said non-compliance  

was the breach of a mandatory provision of the Act and as such  

the  said  non-compliance  was  fatal  to  the  prosecution  case.  

The other point argued by the learned counsel is that there  

were discrepancies inasmuch as  the PW 6 Inspector Mahabir  

Singh had stated in his statement that the recovered charas  

weighed 4 ½ kilo gram while PW1 Suraj Bhan, an independent  

witness had said on oath that the recovered charas weighed  

only 1.5 kilo gram while, actually it was 6.5 kilo gram which  

was alleged to have been recovered from the appellant.

4. We have seen the evidence ourselves.  However, we are  

totally convinced that there was undoubtedly the contraband of  

chars  found  in  the  house  which  was  described  as  “gher”  

(compound).  Learned counsel was at pains to point out that  

there was  no evidence collected regarding the ownership of

4

the room from where the contraband charas was seized.   We do  

not think that this can be urged at this stage as both the  

courts below have accepted that the house actually belonged to  

the  

accused  and  the  concerned  room  was  within  the  “gher”  

(compound)  and was in his possession.  This is apart from the  

fact that there is no serious  cross-examination of any of the  

witnesses on the question of ownership of the house.  Insofar  

as the recovery of contraband charas is concerned, it has been  

fully established that 6.5 kilo grams of charas  was recovered  

and the samples thereof were sent to the forensic laboratory  

along  with  the  seals.  The  documents  like  panchanama  and  

seizure memos clearly bring out the position that 6.5. K.G. Of  

charas was found in the plastic bag. On that backdrop, the  

error committed by witnesses could be attributed to failure of  

human memory which is inconsequential.   The courts below have  

accepted this discovery.   

5. Learned  counsel  for  the  appellant   very  vehemently  

urged that there was total non-compliance of Section 42 of the  

NDPS Act.  We do not think that the accused can succeed even  

on this point in view of the judgment of Constitution Bench of  

this  court  rendered  in  Karnail  Singh  Vs.  State  of  Haryana  

2009(10) SCALE 255 wherein, in paragraph 10, it was held as

5

under:

“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  

immediately  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

6

the official superior.

(c) In  other  words,  the  compliance  with  the  

requirements of Section 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  officer  

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

7

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.”

6. On this backdrop when we see the prosecution case here,  

it  is  apparent  that  the  information  was  received  by  PW6  

Inspector Mahabir Singh when he was not in the police station  

but was on patrol duty in the town. He immediately, after  

receipt of the information, informed his superior officer on  

wireless.   There is no doubt that he did not record it in  

writing but passed on it to his superior ASP Kala Ramachandran  

by wireless.  The fact that the superior officer was informed  

is deposed to by ASP Kala Ramachandran who appeared as PW5.

8

We have seen her cross-examination which really is totally  

irrelevant.  Similarly, we have gone through the evidence of  

PW6 Inspector Mahabir Singh.  Again, his cross-examination is  

also redundant cross-examination.   Both the witnesses have  

deposed about the information having been transmitted through  

wireless and in our opinion would be a substantial compliance  

of  Section 42  of the  NDPS Act  since the  situation was  of  

emergency.   Had the police officer not moved right in the  

earnest, the appellant-accused would have had  an opportunity  

to remove the contraband charas and escaped from the arms of  

police.   Under the circumstances,  we are unable to agree  

with the contentions raised before us by learned counsel for  

the appellant.  In our view, there is no infirmity in the  

judgments of the courts below.  The appeal, being devoid of  

any merit, is dismissed.

7. The appellant is reported to be on bail.  The bail  

bonds are cancelled.  The appellant is directed to surrender  

within  four  weeks  from  today  to  serve  out  the  remaining  

sentence failing which non-bailable warrants shall be issued  

to secure his arrest.  We appreciate the sincere efforts made  

by Mr. Ratan Kumar Choudhary, learned counsel appearing for  

the appellant to assist us during the hearing of the matter as  

the learned counsel for the State of Haryana remained absent.

9

      .......................J. [ V.S. SIRPURKAR ]

......................J. [ DEEPAK VERMA ]

NEW DELHI OCTOBER 7, 2009.