Bahadur Singh vs State Of Haryana

years and to pay a fine of Rs. One lakh and in 2

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 3

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 4

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 5

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 6

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 7

[(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.

8

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. 9

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 10

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 11

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 12

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.

13

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 14

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