Case Title:
Karnail Singh Vs. State of Haryana
Date of Judgement:
29th July 2009
Bench:
K.G. Balakrishnan
R.V. Raveendran
D.K. Jain
P. Sathasivam
J.M. Panchal
Parties:
Appellant(s) - Karnail Singh
Respondent(s) - State of Haryana
Subject
The police officer should have taken down the information in writing, and he should have sent forthwith a copy thereof to his immediate official superior as according to Section 42 of the NDPS Act.
Important provisions
Section 42,43, and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985
Overview
- On the 12th of January, 1988, the Inspector of Police at Dariapur Police Station received information that a man named Iqbal Syed Husen was attempting to smuggle charas up to Shahpur in an autorickshaw.
- They spotted the autorickshaw, which was then driven by the appellant, around 4 p.m.
- They came to a halt and searched the vehicle, discovering four gunny sacks inside. When the police transported the vehicle to the police station, they discovered 10 packets of charas hidden within the gunny sacks. The contraband's worth was estimated to be Rs. 5.29 lakhs.
Issues
Whether compliance with Section 42 of the NDPS Act mandatory?
Arguments of the Appellant
The defense attorney contended that the lack of a complaint under Section 42 of the Act was sufficient to invalidate the search as a whole, and he urged the court to follow the ruling in Abdul Rashid Ibrahim Mansur v. State of Gujrat [(1990) 2 GLR 947].
Arguments of the Respondent
The learned counsel for the State of Gujarat argued that while the accused did not contest the fact of the "charas" being recovered from the vehicle, it did not matter that the information was not recorded at the time by the police officer. They argued that considerable compliance would not vitiate the prosecution case, and requested that the court follow the ruling in Sajan Abraham v. State of Kerala [(2001) 6 SCC 692].
Judgment Analysis
- The officer's entry, search, and seizure should typically be preceded by compliance with Sections 42 (1) and 42(2), which require the officer to write down the information received and provide a copy to the superior officer.
- However, in exceptional cases involving urgent crises, the recording of information in writing and sending a copy to the official superior may be postponed for a reasonable period of time, i.e. after the search, entrance, and seizure. The issue is one of urgency and practicality.
- While complete non-compliance with the requirements of sub-sections (1) and (2) of section 42 is prohibited, delayed compliance with a satisfactory explanation of the delay is permitted. For example, if any delay could result in the accused fleeing or the goods or evidence being destroyed or removed, failing to record the information received in writing before taking action, or failing to send a copy of the information to the official superior as soon as possible may not be considered a violation of Section 42.
- However, if the information was received while the police officer was in the police station with enough time to act, and the police officer fails to record or send a copy of the information received to the official superior, it will be a suspicious circumstance and a clear violation of section 42 of the Act.
- Similarly, there will be an obvious violation of section 42 of the Act if the police officer does not record the information at all and does not alert the official higher. Whether section 42 is being followed in an acceptable or significant manner is a factual question that must be decided in each situation.
Conclusion
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.The Honourable Supreme Court in this case held that non-compliance with Section 42 is impermissible, but strict compliance depends upon urgency and emergency.
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