State Of Karnataka vs Dondusa Namasa Baddi

CRL.A. 123 of 1997 REPORTABLE 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 123 OF 1997

STATE OF KARNATAKA Appellant (s)

VERSUS

DONDUSA NAMASA BADDI Respondent(s)

O R D E R

1. We have heard the learned counsel for the parties.

2. This matter arises out of a search and seizure

which took place on 3rd September, 1987. This appeal

was also adjourned time and again since the year 1997

to await the decision of the Constitution Bench. This

decision has come and is reported as Karnail Singh V.

State of Haryana (2009) 8 SCC 539. The question posed

was as to the effect of non-compliance with the

provisions of Section 42 and in particular 42(2) of the

Narcotic Drugs and Psychotropic Substances Act, 1985.

This matter was referred to the Constitution Bench

owing to an apparent conflict between two judgments of

this Court, Abdul Rashid Ibrahim Mansuri v. State of CRL.A. 123 of 1997 REPORTABLE 2

Gujarat (2000) 2 SCC 513 wherein it was held by a three

Judge Bench that compliance with Section 42(2) of the

Act was mandatory and failure of the police officer to

take down the information received by him in writing

and to forthwith send a report to his immediate

official superior would cause prejudice to the accused

whereas in Sajan Abraham v. State of Kerala (2001) 6

SCC 692 which had also been decided by a three Judge

Bench it had been held that substantial compliance with

the provisions of Section 42 was sufficient. In

Karnail Singh's case, however, the Constitution Bench

has observed thus:

32. Under Section 42(2) as it stood prior to the 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 with 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 immediateofficial superior and not to any other condition of the Section.

CRL.A. 123 of 1997 REPORTABLE 3

And again.

35 (d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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."

3. Concededly in the present matter, no information

was taken down in writing by the police officer or

conveyed to the immediate police officer. Shri A.K.

Mishra, the learned State counsel has, however, CRL.A. 123 of 1997 REPORTABLE 4

forcefully argued that there was evidence in the oral

evidence of P.W. 10, the investigating officer, that he

had complied the formalities enjoined by Section 42(2).

4. It is not the case of the prosecution that

sufficient time was not available to record the

information in writing and send it to the superior

officer and in the face of it, we are of the opinion

that any oral evidence of the police officer will not

be in compliance with the provisions of Section 42(2)

of the Act.

5. We, accordingly, dismiss the State appeal.

.......................J [HARJIT SINGH BEDI]

.........................J [CHANDRAMAULI KR. PRASAD] NEW DELHI AUGUST 05, 2010.