REPORTABLE 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

J U D G M E N T  

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.   

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) 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.