BAHADUR SINGHversusSTATE OF HARYANA

                         [2010] 4 S.C.R. 402


A                         BAHADUR SINGH
                                   v.
                       STATE OF HARYANA
          (Special Leave Petition (Crl.) No. 5523 of 2009)

                           APRIL 6, 2010
B
         [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

         Narcotic Drugs and Psychotropic Substances Act, 1985
  - ss. 42 and 57 - Recovery of contraband from the premises,
C key of which was in possession of the accused - Conviction
  by courts below - Non-compliance of ss. 42 and 57 pleaded
  - Held: Non-compliance with Section 42 would not vitiate the
  trial, if it did not cause prejudice to the accused. Held further:
  Section 57 not mandatory. On facts, the provisions under the
D Sections were complied with - Accused was also found in
  possession of the contraband.

       On a secret information, police party raided the
  house of the petitioner-accused. On interrogation, he
E disclosed that he had concealed six bags of Poppy Husk
  in a locked room and the key of the room was with him.
  On his opening the room, six bags of contraband were
  recovered. Trial Court convicted him. High Court upheld
  the conviction while reducing the sentence.

F       In the SLP, petitioner-accused contended that the
  trial stood vitiated for non-compliance with the mandatory
  provisions of Sections 42 and 57 of the Narcotic Drugs
  and Psychotropic Substances Act, 1985; and that the
  petitioner cannot be said to have been found in
G conscious possession of the contraband.

        Dismissing the SLP, the Court
     HELD: 1.1 Non-compliance with the provisions of
  Section 42 of Narcotic Drugs and Psychotropic
H                       402
      BAHADUR SINGH v. STATE OF HARYANA                 403


Substances Act, 1985 may not vitiate the trial, if it did not A
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. [Para
13] [410-A-B]
                                                              8
      1.2. 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. The delay caused
in complying with the provisions of Section 42 could
result in the escape of the offender or even removal of C
the contraband, there would be substantial compliance,
if the information received were subsequently sent to the
superior officer. [Para 12] [409-C-D]
      1.3. In the instant case, as soon as the .investigating   o
officer reached the spot, he sent a wireless message to
 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          E
on the basis whereof the First Information Report was
registered and copies thereof were sent to the //aqa
Magistrate and also to the higher police officers. 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                  F
accused on account of non-reduction of secret
information into writing and non-sending of the same to
the higher officer immediately thereafter. [Para 12] [409-
E-H]
                                                                G
     Kamai/ Singh vs. State of Haryana (2009) 8 SCC 539,
followed.
    State of Punjab vs. Balbir Singh (1994) 3 SCC 299;
Sajan Abraham vs. State of Kera/a (2001) 6 SCC 692, relied
on.                                                             H
    404      SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A        Directorate of Revenue and Anr. vs. Mohammed Nisar
    Holia (2008) 2 SCC 370; Abdul Rashid Ibrahim Mansuri vs.
    State of Gujarat (2000) SCC (Cri) 496, referred to.

         2. Compliance with the provisions of Section 57 of
    NDPS Act is not mandatory, and, in any event, information
8
    of the arrest of the petitioner a-nd 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. [Para 14] [410-B-C]

C      3. It is not correct to say that the petitioner had not
  been found in the conscious possession of the
  contraband, 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
D of the petitioner but from a room which was opened by
  him with a key in his possession. [Para 15] (410-D-E]
                          Case Law Reference:
          (2008) 2 sec 310         Referred to.          Para 4
E
          (2000) sec (Cri) 496     Referred to.          Para 5
          (2001) s sec 692         Relied on.            Para 12
          (2009) s sec 539         followed.             Para 13

F       CRIMINAL APPELLATE JURISDICTION : SLP (Criminal)
    No. 5523 of 2009.

        From the Judgment & Order dated 12.2.2009 of the High
    Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
G   107-DB of 2000.

          R.K. Talwar, Yash Pal Dhingra for the Petitioner.

          Rao Ranjit for the Respondent.

H
                                          I
      BAHADUR SINGH v. STATE OF HARYANA                   405


     The Judgment of the Court was delivered by                  A

      ALTAMAS KABIR, J. 1. The petitioner was convicted for
 an offence punishable under Section 15 of the Narcotic Drugs
 and Psychotropic Substances Act, 1985 (hereinafter referred
 to as the 'NDPS Act') and was sentenced to undergo rigorous
                                                                  8
 imprisonment for a period of 12 years and to pay a fine of Rs.
 One lakh and in default of payment of the sam~ 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 C
 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 dppearing for the petitioner, it is necessary to set out
the facts of the case in brief.
                                                                  D
      2. On 2nd December, 1995, Gian Singh, Inspector, along
with other Potice 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 E
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 thereafter raided
the house of the petitioner, who was present, and on being F
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, G
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
                                                                 H
    406     SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   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
    and the remaining Poppy Husk was sealed and taken into
    possession vide a separate recovery memo and attested by
B   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,
c   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.
0
         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 extent that the sentence of imprisonment was reduced
E   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
F 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
G 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 Ho/ia [(2008) 2 SCC 370] in which it
  was, inter alia, held that since the information as to the offence
H
      BAHADUR SINGH v. STATE OF HARYANA                      407
             [ALTAMAS KABIR, J.]
had not been reduced into writing by the officer who received        A
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        B
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 Kamai/ Singh vs. State of Haryana          C
[(2009) 8 sec 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" "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 [(2000) ·sec (Cri) 496] and Sajan Abraham           D
VS. State of Kera/a [(2001) 6 sec 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        E
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,               F
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.
                                                                     G
     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                  H
    408      SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   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
B
       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
C such as wireless as also cell phones. Mr. 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
D 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
E 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
F 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
G 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.
H
      BAHADUR SINGH v. STATE OF HARYANA                       409
             [ALTAMAS KABIR, J.]
      10. Mr. Ranjeet also referred to the decision of this Court     A
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      B
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            C
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       D
 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          E
 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      F
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 llaqa
Magistrate and also to the higher police officers. As was held
by the High Court, there was, therefore, substantial compliance       G
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.
                                                                      H
    410     SUPREME COURT REPORTS                 [2010] 4 S.C.R.

A      13. Apart from the decision in Sajan Abraham's case
  (supra), the decision of the Constitution Bench in Kamai!
  Singh's case (supra), has also made it clear that non-
  compliancei with the provisions of Section 42 may not vitiate
  the trial if it did not cause any prejudice to the accused.
B 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,
C 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.

D      15. As to the submissions advanced with regard to
  conscious possession of the seized Poppy Husk, we are of the
  view that the same cannot be accepted having particular regard
  to tha fact that the six bags containing 32 kilograms of Poppy
  Husk in each of the bags were not only recovered from the
E 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.

F K.K.T.                                          SLP dismissed.