Deciding Authority: Supreme Court of India
Name of the Judges: Justice Altamas Kabir, Justice Cyriac Joseph
Date of Judgement: 6 April 2010
Facts of the Case: 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 raided the house of the petitioner, 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, 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. Aggrieved by the judgment of conviction and sentence, the petitioner preferred the appeal before the High Court, 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.
Judgement: The court agreed with the contentions of Advocate Mr. Rao Ranjeet, who appead for the State of Haryana. He 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 vs. State of Kerala [(2001) 6 SCC 692] 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. 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. 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. It was 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. The decision of the Constitution Bench in Karnail Singh’s case (supra), had 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. As far as compliance with the provisions of Section 57 of NDPS Act was concerned, it had 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. As to the conscious possession of the seized Poppy Husk, the court observed 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.
Decision: The court found no merit in this special leave petition and the same was dismissed.
By: Roopali Mohan, 2nd Year, Vivekananda Institute of Professional Studies, New Delhi