Holding

In emergency situations, substantial compliance with Section 42—by promptly informing a superior officer via wireless—satisfies the statutory requirement and does not invalidate the seizure or conviction.

Summary

The appellant, Daleel Singh, was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for possession of 6.5 kg of charas seized from his house. He challenged the conviction on the ground that the police had not complied with the mandatory requirements of Section 42, which mandates that information leading to a search be recorded in writing and sent to a superior officer before action. The Supreme Court held that the police officer, while on patrol, promptly relayed the information to his superior via wireless, which constituted substantial compliance given the emergency nature of the situation. The Court noted that delayed written recording is permissible when immediate action is necessary to prevent loss of evidence. Discrepancies in the weight of the seized charas were attributed to human memory errors and deemed inconsequential. Consequently, the Court dismissed the appeal, upholding the conviction and sentencing.

Issues considered

Whether failure to record information in writing and immediately forward it to a superior officer, as required by Section 42 of the NDPS Act, invalidates the seizure and conviction.
Whether the emergency circumstances justify delayed compliance with the procedural requirements of Section 42.
Whether the discrepancy in the weight of the seized charas affects the evidentiary value of the seizure.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 20, s. 42

Subjects

NDPS ActSection 42 compliancesearch and seizureemergency procedurecontrabandcharasrecording of informationpolice procedure

Judgment

[2009] 14 S.C.R. 1129

DALEL SINGH A
v.
STATE OF HARYANA
(Criminal Appeal No. 1034 of 2003)

OCTOBER 7, 2009
B
[V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]

" Narcotic Drugs and Psychotropic Substances Act, 1985
- ss. 20 and 42 - Conviction uls. 20 - Challenged - Non-
compliance of s. 42 alleged - Held: Challenge not tenable - c
Information was received by PW6 Inspector when he was not
in the police station but was on patrol duty - He immediately,
after receipt of information, informed his superior officer ASP
on wireless -Information having been transmitted through
wireless, there was substantial compliance of s.42 since the D
situation was of emergency- Had the police officer not moved
in right earnest, the appellant-acf,used would have had
opportunity to remove the contraband "charas" and escaped
from the arms of police.
E
PW6 Inspector, while on patrol duty, received secret
information that the appellant was selling "charas" and
keeping it in his house and informed his superior officer
PWS ASP on the wireless. Police party raided the house
of the appellant and 6.5 kgs "charas" was recovered from
there. On basis of the evidence tendered by the raiding F
party, the trial court convicted the appellant under s.20
of the Narcotic Drugs and Psychotropic Substances Act,
1985 and sentenced him to rigorous imprisonment for 10
years. The conviction was upheld by the High Court.
G
'* In appeal to this Court, the appellant contended that
there was total non-compliance of the provision of
Section 42 of the Act inasmuch as there was no recording
of the information prior to taking any action, either before
1129 H
1130 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.

A the raid or even thereafter; that the said non-compliance
breached a mandatory provision of the Act and as such
the said non-compliance was fatal to the prosecution
case. The other point argued by the appellant was that
·there were discrepancies inasmuch as PW 6 stated in his
B statement that the recovered "charas" weighed 4% kg
while PW1, an independent witness said on oath that the
recovered "charas' weighed only 1.5 kg while, actually it
was 6.5 kg which was alleged to have been recovered ~ ' I

from the appellant.
c Dismissing the appeal, the Court

HELD: 1.1. The information was received by PW6
Inspector when he was not in the police station but was
on patrol duty in the town. He immediately, after receipt
D of the information, informed his superior officer on
wireless. There is no doubt that he did not record it in
writing but passed on it to his superior ASP by wireless.
" •
The fact that the superiol officer was informed is deposed
to by ASP who appeared as PW5. Both the said
E witnesses have deposed about the information having
been transmitted through wireless and this would be a
substantial compliance of Section 42 of the Act since the
situation was of emergency. Had the police officer-not _(

moved right in the earnest, the appellant-accused would
F have had an opportunity to remove the contraband
"charas" and escaped from the arms of police. There is ~
no infirmity in the judgments of the courts below. [Para
6] [1135-G-H; 1136-A-D]

1.2. The contraband of "charas" was found in the
G house of the appellant which was described as "gher"
(compound). Besides, there is no serious cross- +
examination of any of the witnesses on the question of
ownership of the house. Insofar as the recovery of
contraband "cllaras" is concerned, it has been fully
H
DALEL SINGH v. STATE OF HARYANA 1131

established that 6.5 kg of "charas" was recovered and the A
samples thereof were sent to the forensic laboratory
along with the seals. The documents like panchanama
and seizure memos clearly bring out the position that 6.5
kg of charas was found in the plastic bag. On that
backdrop, the error committed by witnesses could be 8
attributed to failure of human memory which is
Jc inconsequential. [Para 4] [1133-C-F]

Kamai/ Singh v. State of Haryana 2009(10) SCALE 255,
followed.
c
Case Law Reference:
2009(10) SCALE 255 followed Para 5
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1034 of 2003. D
From the Judgment & Order dated 13.3.2003 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 739 of 2000.

Ratan Kumar Chaudhuri for the Appellant. E

Kamal Mohan Gupta (Not Present) for the Respondent.

The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. This is an appeal by the appellant- F
accused against his conviction for the offence under Section
20 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (in short "NDPS Act") and the consequent sentence of
R.I. for 10 years and to pay fine of Rs. 1.5 lakhs, in default to
~ undergo further R.I. for one year. G

2. The prosecution story in very short conspectus is that
on 4. 7.1997 at about 2 p.m., Inspector Mahabir Singh along with
other police officials was present at Gubhana bus-stop where
he received a secret information that the appellant-accused H
·~
l'
1132 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A was doing the business of selling charas and was keeping "
charas in the courtyard of his house. On this information, ,,
Inspector Mahabir Singh immediately informed his superior
Kala Ramchandran, Additional Superintendent of Police on
wireless and the police party went to the house of the accused
B after joining Surajbhan, Namberdar and Chanderbhan,
Chowkidar as witnesses. In the meantime, ASP Kala
Ramchandem also reached the spot and directed the Inspector
),
Mahabir Singh to conduct the search of the premises. The
house of the accused which was in a gher (compound) was
c found locked. Ultimately, it was the wife of the accused who
brought the key of that "gher". The "gher" had three rooms. The
"gher'' was opened and searched. In the fodder room (kotha of
tura) inside the "gher", one plastic bag was found which was
opened and checked and charas weighing 6.5 kilo gram was )
recovered. The usual investigation went on. The samples were
D collected and sent along with the seal; a rukka (information) was
immediately sent on the basis of which the first information
report was registered in the concerned police station. In support
of its case, prosecution examined PW6 Inspector Mahabir
Singh, PWS ASP Kala Ramachandra apart from examining,
E PW1 Surajbhan, PW2 Satbir Singh, PW3 Constable Sunil .
Kumar and PW4 ASI Hari Singh. They were all part of the
raiding party along with Inspector Mahabir Singh. On the basis
of their evidence, the trial court convicted the accused against
which there was an appeal before the High Court. The High
F Court dismissed the appeal. Hence, the present appeal.
3. Mr. Ratan Kumar Choudhary, learned counsel
appearing for the appellant very painstakingly took us through
the evidence of all the witnesses and urged that this was a case
G where there was a total non-compliance of the provision ol
Section 42 of the NDPS Act inasmuch as there was no -!<-
recording of the information prior to taking any action. Under
the said Section, the investigating officer had to record the
information and send the same to the immediate superior
officer. However, that was not done either before the raid or
H
DALEL SINGH v. STATE OF HARYANA 1133
[V.S. SIRPURKAR, J.]
,, even thereafter. It was pointed that the said non-compliance was A
the breach of a mandatory provision of the Act and as such the
said non-compliance was fatal to the prosecution case. The
other point argued by the learned counsel is that there were
discrepancies inasmuch as the PW 6 Inspector Mahabir Singh
had stated in his statement that the recovered charas weighed B
4 Y2 kilo gram while PW1 Suraj Bhan, an independent witness
had said on oath that the recovered charas weighed only 1.5
,A
kilo gram while, actually it was 6.5 kilo gram which was alleged
to have been recovered from the appellant.

4. We have seen the evidence ourselves. However, we are
c
totally convinced that there was undoubtedly the contraband of
chars found in the house which was described as "gher"
(compound). Learned counsel was at pains to point out that
there was no evidence collected regarding the ownership of the
• room from where the contraband charas was seized. We do D
not think that this can be urged at this stage as both the courts
below have accepted that the house actually belonged to the
accused and the concerned room was within the "gher"
(compound) and was in his possession. This is apart from the
fact that there is no serious cross-examination of any of the E
witnesses on the question of ownership of the house. Insofar
as the recovery of contraband charas is concerned, it has been
fully established that 6.5 kilo grams of charas was recovered
and the samples thereof were sent to the forensic laboratory
along with the seals. The documents like panchanama and F
seizure memos clearly bring out the position that 6.5. K.G. Of
charas was found in the plastic bag. On that backdrop, the error
committed by witnesses could be attributed to failure of human
memory which is inconsequential. The courts below have
accepted this discovery. G
~
5. Learned counsel for the appellant very vehemently urged
that there was total non-compliance of Section 42 of the NDPS
Act. We do not think that the accused can succeed even on
this point in view of the judgment of Constitution Bench of this
H
1134 SUPREME COURT REPORTS (2009) 14 (ADDL.) S.C.R.

A court rendered in Kamai/ Singh vs. State of Haryana 2009(10)
SCALE 255 wherein, in paragraph 10, it was held as under:

"In conclusion, what is to be noticad is Abdul Rashid did
not require literal compliance with the requirements of
Sections 42(1) and 42(2)" nor did Sajan Abraham hold that
B
the requirements of Section 42(1) and 42(2) need not be
fulfilled at all. The effect of the two decisions was as
follows:

(a) The officer on receiving the information (of. the
c nature referred to in Sub-section (1) of Section 42)
from any person had to record it in writing in the
concerned Register and forthwith send a copy to
his immediately official superior, before proceeding
to take action in terms of clauses (a) to (d) of
D Section 42(1).

(b) But if the information was received when the officer
was not in the police station, but while he was on
the move either on patrol duty or otherwise, either
by mobile phone, or other means, and the
E
information calls for immediate action and any
delay would have resulted in the goods or evidence
being removed or destroyed, it would not be
feasible or practical to take down in writing the
information given to him, in such a situation, he
F could take action as per clauses (a) to (d) of
Section 42(1) and thereafter, as soon as it is
practical, record the information in writing and
forthwith inform the same to the official superior.

G (c) In other words, the compliance with the
requirements of Section 42(1) and 42(2) in regard
to writing down the information received and
sending a copy thereof to the superior officer,
should normally precede the entry, search and
H seizure by the officer. But in special circumstances
DALEL SINGH v. STATE OF HARYANA 1135
[V.S. SIRPURKAR, J.]

involving emergent situations, the recording of the A
information in writing and sending a copy thereof
to the officer superior may get postponed by a
reasonable period, that is after the search, entry and
seizure. The question is one of urgency and
....... expediency. B

(d) While total non-compliance of requirements of sub-
sections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation
about the delay will be acceptable compliance of
Section 42. To illustrate, if any delay may result in
c
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 D
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 E
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 F
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." G
"" 6. On this backdrop when we see the prosecution case
. here, it is apparent that the information was received by PW6
Inspector Mahabir Singh when he was not in the police station
but was on patrol duty in the town. He immediately, after receipt
H
1136 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A of the information, informed his superior officer on wireless.
There is no doubt that he did not record it in writing but passed
on it to his superior ASP Kala Ramachandran by wireless. The
fact that the superior officer was informed is deposed to by
ASP Kala Ramachandran who appeared as PWS. We have
B seen her cross-examination which really is totally irrelevant. ....
Similarly, we have gone through the evidence of PW6 rnspector
Mahabir Singh. Again, his cross-examination is also redundant
cross-examination. Both the witnesses have deposed about the ;..

information having been transmitted through wireless and in our
c opinion would be a substantial compliance of Section 42 of the
NDPS Act since the situation was of emergency. Had the police
officer not moved right in the earn~st, the appellant-accused
would have had an opportunity to remove the contraband
charas and escaped from the arms of police. Under the
circumstances, we are unable to agree with the contentions
D
raised before us by learned counsel for the appellant. In our ~

view, there is no infirmity in the judgments of the courts below. "'
'
The appeal, being devoid of any merit, is dismissed.

7. The appellant is reported to be on bail. The bail bonds
E are cancelled. The appellant is directed to surrender within four
weeks from today to serve out the remaining sentence failing
which non-bailable warrants shall be issued to secure his arrest.
We appreciate the sincere efforts made by Mr. Ratan Kumar f
Choudhary, learned counsel appearing for the appellant to
F assist us during the hearing of the matter as the learned counsel
for the State of Haryana remained absent.
B.B.B. Appeal dismissed.