SUKHDEV SINGHversusSTATE OF HARYANA

                        [2012] 11 S.C.R. 964

A                        SUKHDEV SINGH
                                  v.
                       STATE OF HARYANA
                (Criminal Appeal No. 2118 of 2008)
                       DECEMBER 13, 2012
B
      [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

        Narcotic Drugs and Psychotropic Substances Act, 1985
   - s.42(2) [as pre-amended] and s.15 - Reporting of
C information reduced to writing to higher officer - Non-
   compliance - Effect - Held: On facts, the information was
   received by PW1 Investigating Officer on 4th February, 1994,
   thus, s.42(2) as amended w.e.f. 2nd October,2001 vide
   Amending Act No.9 of 2001 would not apply, and instead the
D pre-amended s.42(2) would govern the case - PW1, while on
  patrol duty, had received secret information against the
   accused - However, as per the statement of PW1, no effort
   was made by him to reduce the information into writing and
  inform his higher authorities instantaneously or even after a
E reasonable delay - PW1 had more than sufficient time at his
  disposal to comply with the provisions of s.42 - He had
  received the secret information at 11.30 a.m., but he reached
  the house of the accused at 2 p.m. even when the distance
  was only 6 kilometers away and he was in a jeep - Not an
F iota of evidence, either in the statement of PW1 or in any other
  documentary form, to show what PW1 was doing for these two
  hours and what prevented him from complying with the
  provisions of s. 42 - There was patent illegality in the
  prosecution case, which was incurable - Relief granted to the
G accused - Conviction uls. 15 as recorded by Courts below set
  aside - Accused acquitted.

        Narcotic Drugs and Psychotropic Substances Act, 1985
    - s.42(2) - Reporting of information reduced to writing to

H                               964
     SUKHDEV SINGH v. STATE OF HARYANA                   965


higher officer - Amendment of sub-section (2) of s.42 w.e.f. A
2nd October, 2001 vide Amending Act 9 of 2001 - Effect -
Held: After amendment of this sub-section, the words
'forthwith' stood amended by the words 'within 72 hours' -
Resultantly, absolute certainty brought in by binding the
officer concerned to send the intimation to the superior officer B
within 72 hours from the time ·or receipt of information - The
amendment is suggestive of the legislative intent that
information must reach the superior officer not only
expeditiously or forthwith but definitely within the time
contemplated under the amended sub-section (2) of s.42 - c
This provides greater certainty to the time in which the action
should be taken as well as renders the safeguards provided
to an accused more meaningful.

     Narcotic Drugs and Psychotropic Substances Act, 1985
- s.42(2) - Amendment of, vide Amending Act No. 9 of 2001 D
- Applicability of the Amending Act - Held: Cannot be with
retrospective effect - The law as it existed at the time of
commission of the offence would be the law which will govern
the rights and obligations of the parties under the NDPS Act
- Settled principle of interpretation of criminal jurisprudence E
that the provisions have to be strictly construed and cannot
be given a retrospective effect unless legislative intent and
expression is clear beyond ambiguity.

     Narcotic Drugs and Psychotropic Substances Act, 1985 F
- s.42 - Compliance with - Is mandatory and not optional -
Incumbent duty of every investigating officer to comply with
the provisions of s.42 in true substance and spirit in
consonance with the law stated by this Court in the case of
Kamai/ Singh.
                                                                G
     PW1(ASI), while on patrol duty, received secret
information against the accused that he was in the habit
of selling chura post (poppy husk) in his house and if a
raid is conducted upon the house of the accused, he can
be caught red-handed with the contraband. Search was            H
    966      SUPREME COURT REPORTS            [2012] 11 S.C.R.

A  conducted and five bags were found lying concealed
  under a heap of chaff in the courtyard of the house of the
  accused. Notice was served upon the accused under
  Section 50 of the Narcotic Drugs and Psychotropic
  Substances Act, 1985 ('NDPS Act') giving him an offer to
B be searched before a Gazetted Officer or a Magistrate.
  The accused expressed his desire to be searched before
  a Gazetted Officer of the police. PW1 thereupon sent an
  application to the Deputy Superintendent of Police (DSP)
  who reached the spot and upon his instruction the search
C of the bags was conducted. From each gunny bag, 100
  grams of chura post was separated as sample. The
  samples and the gunny bags were sealed and taken into
  possession. Thereafter a ruqa was sent to the police
  station where FIR was registered under the NDPS Act.
  The trial court held the accused guilty under Section 15
0
  of the NDPS Act and sentenced him to 10 years' rigorous
  imprisonment. The High Court declined to interfere with
  the judgment of the trial Court and therefore the instant
  appeal.
E       The only contention raised before this Court on
    behalf of the appellant was that the prosecution case
    ought to fail for total non-compliance of the mandatory
    statutory provisions of Section 42(2) of the NDPS Act;
    and thus the accused was entitled to acquittal.
F
          Allowing the appeal, the Court

       HELD:1.1. Section 42 of the NDPS Act can be divided
  into two different parts. First is the power of entry, search
  seizure and arrest without warrant or authorisation as
G contemplated under sub-section (1) of the said section.
  Second is reporting of the information reduced to writing
  to a higher officer in consonance with sub-section (2) of
  that section. Sub-section (2) of Section 42 had been a
  matter of judicial interpretation as well as of legislative
H concern in the past. Sub-section (2) was amended by the
     SUKHDEV SINGH v. STATE OF HARYANA               967


 Parliament vide Act 9 of 2001 with effect from 2nd A
 October, 2001. After amendment of this sub-section, the
 words 'forthwith' stood amended by the words 'within 72
 hours'. In other words, whatever ambiguity or leverage
 was provided for under the unamended provision, was
 clarified and resultantly, absolute certainty was brought B
 in by binding the officer concerned to send the intimation
 to the superior officers within 72 hours from the time of
 receipt of information. The amendment is suggestive of
 the legislative intent that information must reach the
 superior officer not only expeditiously or forthwith but c
 definitely within the time contemplated under the
 amended sub-section (2) of Section 42. This provides a
 greater certainty to the time in which the action should
 be taken as well as renders the safeguards provided to
 an accused more meaningful. In the present case, the
                                                            0
 information was received by the empowered officer on
 4th February, 1994 when the unamended provision was
 in force. The law as it existed at the time of commission
'of the offence would be the law which will govern the
 rights and obligations of the parties under the NDPS Act. E
 [Para 14] [978-D-H; 979-A-8]

    1.2. No law can be interpreted so as to frustrate the
very basic rule of law. It is a settled principle of
interpretation of criminal jurisprudence that the
provisions have to be strictly construed and cannot be F
given a retrospective effect unless legislative intent and
expression is clear beyond ambiguity. The amendments
to criminal law would not intend that there should be
undue delay in disposal of criminal trials or there should
be retrial just because the law has changed. Such an G
approach would be contrary to the doctrine of finality as
well as avoidance of delay in conclusion of criminal trial.
[Para 15] [980-C-D]
    1.3.ln the present case, the occurrence was of 4th
 February, 1994. The trial of the accused concluded by     H
    968     SUPREME COURT REPORTS              [2012] 11 S.C.R.

A judgment of conviction dated 4th July, 1998. Thus, it will
  be the unamended Section 42(2) of the NDPS Act that
  would govern the present case. The provisions· of
  Section 42 are intended to provide protection as well as
  lay down a procedure which is mandatory and should be
B followed positively by the Investigating Officer. He is
  obliged to furnish the information to his superior officer
  forthwith. That obviously means without any delay. But
  there could be cases where the Investigating Officer
  instantaneously, for special reasons to be explained in
C writing, is not able to reduce the information into writing
  and send the said information to his superior officers but
  could do it later and preferably prior to recovery.
  Compliance of Section 42 is mandatory and there cannot
  be an escape from its strict compliance. [Para 18) [981-
D A-0)
       1.4. As per the statement of PW1, no effort was made
  by him to reduce the information into writing and inform
  his higher authorities instantaneously or even after a
  reasonable delay which has to be explained with
E reasons in writing. On the contrary, in the present case,
  the Investigating Officer PW1 had more than sufficient
  time at his disposal to comply with the provisions of
  Section 42. Admittedly, he had received the secret
  information at 11.30 a.m., but he reached the house of the
F accused at 2 p.m. even when the distance was only 6
  kilometers away and he was in a jeep. There is not an iota
  of evidence, either in the statement of PW 1 or in any
  other documentary form, to show what the Investigating
  Officer was doing for these two hours and what
G prevented him from complying with the provisions of
  Section 42 of NDPS Act. [Para 21) [983-D-F]

         1.5. There is patent illegality in the case of the
    prosecution and such illegality is incurable. This is a case
    of total non-compliance, thus the question of substantial
H
      SUKHDEV SINGH v. STATE OF HARYANA                   969

compliance would not even arise for consideration of the A
Court in the present case. The twin purpose of the
provisions of Section 42 which can broadly be stated are
that : (a) it is a mandatory provision which ought to be
construed and complied strictly; and (b) compliance of
furnishing information to the superior officer should be B
forthwith or within a very short time thereafter and
preferably post-recovery. [Para 22) [983-G-H; 984-A]

     1.6. Once the contraband is recovered, then there are
other provisions like Section 57 which the empowered
officer is mandatorily required to comply with. That itself C
to some extent would minimize the purpose and
effectiveness of Section 42 of the NDPS Act. It is to
provide fairness in the process of recovery and
investigation which is one of the basic features of our
criminal jurisprudence. It is a kind of prevention of false D
implication of innocent persons. The legislature in its
wisdom had made the provisions of Section 42 of NDPS
Act mandatory and not optional as stated by this Court
in the case of Kamai/ Singh. [Para 23) [984-8-C]
                                                                  E
     1.7. The accused is therefore entitled to grant of relief.
The judgment of the High Court as well as the Trial Court
are accordingly set aside and the accused is acquitted
of the offence under Section 15 of NDPS Act. [Para 24)
[984-D]                                                           F
    1.8. The Director General of Police concerned of all
the States are directed to issue appropriate instructions
directing the investigating officers to duly comply with the
provisions of Section 42 of NDPS Act at the appropriate
stage to avoid such acquittals. Compliance to the G
provisions of Section 42 being mandatory, it is the
incumbent duty of every investigating officer to comply
with the same in true substance and spirit in consonance
with the law stated by this Coun in the case of Kamai/
Singh. [Paras 25, 26] [984-E-F]                              H
    970       SUPREME COURT REPORTS                [2012] 11 S.C.R.


A         Kamai/ Singh v. State of Haryana (2009) 8 SCC 539:
    2009 (11) SCR 470 - followed.

      Basheer@ N.P. Basheerv. State of Kera/a (2004) 3 SCC
  609: 2004 (2) SCR 224; Jawahar Singh @ Bhagat Ji. v. State
B of GNCT of Delhi (2009) 6 sec 490: 2009 (7) SCR 495;
  Ravinder Singh v. State of Himacha/ Pradesh (2009) 14 SCC
  201 and Hari Ram v. State of Rajasthan & Ors. (2009) 13
  sec 211: 2009 (7) SCR 623 - relied on.
       Sajan Abraham v. State of Kera/a (2001) 6 SCC 692:
C 2001 (1) Suppl. SCR 335 and Abdul Rashid Ibrahim Mansuri
  v. State of Gujarat (2000) 2 SCC 513: 2000 (1) SCR 542 -
  referred to.

                          Case Law Reference:
D         2001 (1) Suppl. SCR 335 referred to             Para 11
          2004 (2) SCR 224           relied on            Para 14
          2009 (7) SCR 495           relied on            Para 14

E         (2009) 14 sec 201          relied on            Para 16
          2009 (7) SCR 623           relied on            Para 17
          2009 (11) SCR 470         followed              Para 19
          2000 (1) SCR 542           referred to          Para 19
F
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2118 of 2008.

      From the Judgment & Order dated 27.3.2008 of the High
G Court of Punjab & Haryana at Chandigarh in Criminal Appeal
  No. 802-SB of 1998.

          Shiv Kumar Suri, Suchismita Bardhan for the Appellant.

      Kamal Mohan Gupta, Mohd. Zahid Hussain for the
H Respondent.
     SUKHDEV SINGH v. STATE OF HARYANA                    971

    The Judgment of the Court was delivered by                  A
     SWATANTER KUMAR, J. 1. The present appeal is
directed against the judgment dated 27th March, 2008
pronounced by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No. 802-SB of 1998. We may
notice the case of the prosecution and the facts which have     8
given rise to the filing of the present criminal appeal.

    . 2. On 4th February, 1994, ASI Nand Lal along with HC
Hoshiar Singh, HC Suraj Bhan and other police officials were
present in village Jogewala, in connection with patrolling duty. C
ASI Nand Lal, who was examined as PW 1, received secret
information against the accused that the accused was in the
habit of selling chura post (poppy husk) in his house and if a
raid is conducted upon the house of the accused, the accused
can be caught red-handed with the contraband. One Nacchatter D
Singh is stated to have been associated with the raiding party
which raided the house of the accused. However, this witness
was declared hostile before the Court during his examination.
On conducting a search, five bags were found lying concealed
under a heap of chaff in the courtyard of the house of the E
accused. On suspicion of having some intoxicant in his
possession, the Investigating Officer served notice upon the
accused under Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'NDPS Act')
giving him an offer to be searched before a Gazetted Officer F
or a Magistrate. Accused is stated to have responded to such
notice vide Ext. PC/1 where he expressed his desire to be
searched before a Gazetted Officer of the police. Upon having
known the desired choice of the accused, it is stated that PW1
had sent an application, Ext. PD, to the Deputy Superintendent
of Police, Dabwali, through Constable Amir Singh requesting G
him to reach the spot. Mr. Jagdish Nagar, DSP, reached the
spot after about half an hour and upon his instruction the search
of the bags was conducted. From each gunny bag, 100 grams
of chura post was separated as sample. The samples as well
                                                                  H
     972      SUPREME COURT REPORTS                 (2012] 11 S.C.R.

· A as the remaining gunny bags weighed 39 kgs. and 900 grams
     each and were sealed with the seal bearing impressions JN
     and NL, and thereafter were taken into possession vide
     recovery memo Ext. PE. The seal NL was handed over to HC
     Hoshiar Singh while seal JN was retained by the DSP himself.
  B After completing this process, a ruqa Ex. PF was sent to the
     police station where the FIR being Ext. PF/1 was registered
     under Sections 15/16/61/85 of NDPS Act. The Investigating
     Officer prepared a site plan Ext. PG. On return to the police
     station, the case property was handed over to the MHC with
  C its seals intact. After receiving the test report Ext. PH from the
     Forensic Science Laboratory, Haryana, Madhuban (Karnal) and
     after completing all other formalities, the challan was filed. The
    challan in terms of Section 173 of the Code of Criminal
     Procedure, 1973 (for short "Cr.PC") was presented before the
    court of competent jurisdiction. The prosecution examined a
  D number of witnesses including PW1 Nand Lal, PW2 Jagdish
     Nagar, DSP and PW Nachhattar Singh. Affidavits of Nihan
    Singh, Head Constable and Tejas Singh, Constable (Ext. PA
    and PB respectively) were taken into evidence. The accused
    took the plea that he had been falsely implicated in the case
  E at the instance of Harnand Singh, Ex-Member of the Block
    Samiti of the area and examined four witnesses in support of
    his case. The Trial Court vide its judgment of conviction dated
    4th July, 1998 held the accused guilty of an offence punishable
    under Section 15 of NDPS Act and after hearing the party on
 F the quantum of sentence vide its order dated 6th July, 1998
    awarded 10 years' rigorous imprisonment to the accused with
    fine Rs. 1 lakh and in the event of default to undergo simple
    imprisonment for another two years. The legality and
    correctness of the judgment and order of sentence was
 G challenged by the accused before the High Court.
      3. The High Court vide its detailed judgment dated 27th
  March, 2008 declined to interfere with the judgment of the Trial
  Court and while upholding the same, maintained the order of
H sentence, giving rise to the filing of the present appeal.
      SUKHDEV SINGH v. STATE OF HARYANA                      973
            [SWATANTER KUMAR, J.]
     4. The only contention raised before us on behalf of the A
appellant is that the case of the prosecution must fail for total
non-compliance of the statutory provisions of Section 42 of
NDPS Act. These provisions are mandatory and in the present
case, there is admittedly no compliance of the said provisions,
thus the accused is entitled to acquittal as the whole case of B
the prosecution is vitiated in law.

      5. To the contra, the contention on behalf of the State is
that there is substantial compliance of the provisions of Section
42 of NDPS Act and therefore, the concurrent judgments of            C
conviction and order of sentence do not call for any interference.

     6. In order to examine the merit or otherwise of the above
contention, it is necessary for us to discuss the entire gamut of
the prosecution evidence.
                                                                     D
     7. At this stage, it will be useful to refer to the relevant
statement of ASI Nand Lal, PW1 who is stated to have
received a secret information, proceeded to raid the house of
the accused and recovered the chura post as noticed above:

     "On 04.02.1994, I was posted as lncharge of CIA Staff,          E
     Dabwali. On that day, I alongwith Hoshiar Singh H.C. Suraj
     Bhan H.C. and other police officials was present at village
     Jogewala in connection with patrolling and detection of
     crimes. Then, I received a secret information that the
     accused present in the court is in the habit of selling         F
     churapost and if a raid is conducted at the once, churapost
     could be recovered from him. On receipt of this information,
     I formed a raiding party and when I reached near the school
     of village Panniwala Marika, Nicchattar Singh son of
     Sunder Singh met me and he was joined in the raiding            G
     party and then the raiding party reached the house of the
     accused. The accused was found present in the court-yard
     of his house and at that time, he was sitting on a cot. Then,
     I conducted the house search of the accused and on
     search five bags lying under the heap of Turi were              H
    974      SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A         recovered which were lying in the court-yard of the house
          of the accused. Then, I served a notice Ex. PC on the
          accused on the suspicion of his having possessed some
          narcotic substance in these five gunny bags, offering him
          the search of the bags before any Gazetted Officer of
B         Police or a Magistrate. The accused as per his reply
          Ex.PC/1 desired the search of the gunny bags before any
          Gazetted Officer of Police. Ex. PC and Ex. PC/1 were
          signed by the accused and attested by PWs H.C. Suraj
          Bhan and Hoshiar Singh and Nachittar Singh independent
c         witness. Then I sent a written application Ex.PD through
          constable Amir Singh to DSP Dabwali requesting him to
          reach on the spot. Thereafter, the DSP Dabwali reached
          at the spot after half an hour and then on his instructions,
          I conducted the search of the five gunny bags in the
          presence of PWs. Poppy straw was found in it. 100 grams
D
          churapost was separated as samples from each gunny
          bags. The remaining on weighment was found to be 39
          kgs. 900 grams in each gunny bag. The samples and the
          gunny bags remaining churapost were sealed with the
          seals NL and JN and were taken into possession vide
E         recovery memo Ex. PE attested by DSP Jegdish Nagar,
          Nichhatar Singh, Suraj Bhan H.C. Seal NL after use was
          handed over to Hoshiar Singh H.C., while the seal JN was
          retained by the DSP himself I sent ruqa Ex. PF to the
          Police-Station for registration of a case on which for-mail
F         FIR Ex.PF/1 was recorded by Shri Davinder Kumar ASI
          whose signatures I identify."
        8. ·It is clear from the statement of PW1 that he, upon
  receiving the secret information, neither reduced the same in
G writing nor communicated to his senior officer about receiving
  the secret information as required under Section 42 of NDPS
  Act.

         9. In his cross-examination, he admitted that he had
    received the secret information at about 11.30 a.m. at Village
H
      SUKHDEV SINGH v. STATE OF HARYANA                  975
            [SWATANTER KUMAR, J.]

Jogewala. He did not know from where the secret information A
was received. He was in a jeep. The distance between the
house of the accused and the spot where he was at the time
of receiving the secret information was merely 6 kilometers, but
he reached the house of the accused only at 2 p.m. He also
admitted that the house of the accused was situated in the B
middle of the village in a busy locality, and yet he did not call
anybody from the neighbourhood at the time of effecting
recovery.

      10. According to the learned counsel appearing for the
State, there was substantial compliance inasmuch as after C
effecting the recovery he had sent a ruqa Ext. PF to his senior
officer, on the basis of which the FIR Ext. PF/1 was registered
and thus, there was substantial compliance of the provisions
of Section 42 of NDPS Act. This aspect has also been
considered by the High Court and while accepting the D
contention of the State as to substantial compliance of the
provisions of Section 42 of NDPS Act, the High Court in the
judgment impugned herein noticed as under:-

    "9-A. In the instant case too, a secret information, was E
    received by Nand Lal, ASI on 4.2.1994, when he alongwith
    Hoshiar Singh, HC, Suraj Bhan and other police officials,
    was present in village Jogewala, in connection with patrol
    duty, and detection of crime. It means that Nand Lal, ASI,
    was in motion, at the time, when he received the secret F
    information, against the accused. Since, the secret
    informer had informed Nand Lal, AS! that if a raid was
    conducted immediately, then a big haul of contraband,
    could be recovered from the house of the accused, where
    he was present. It was his bounden duty, to immediately G
    rush to the disclosed place, to detect the accused with
    contraband. It was, in this view of the matter, that he had
    no time to record the information, and send the same to
    the Officer Superior, as had he done so, there would have
    been every possibility of the accuse absconding, and the H
    976       SUPREME COURT REPORTS                   [2012] 11 S.C.R.


A         purpose of the very raid would have been defeated.
          However, he substantially complied the provisions of
          Section 42 of the Act, by recording the ruqa, embodying
          the secret information therein, as also by sending the
          message to the DSP, to come to the spot, as a result
B         whereof, he came to the spot. Since, there was substantial
          compliance, with the provisions of Section 42 of the Act,
          it could not be said that there was intentional and
          deliberate non-compliance thereof strictly. On account of
          this reason, the case of the prosecution cannot be thrown
c         out. The principle of law, laid down in Sajan Abraha's case
          (supra), a case decided by three Judge Bench of the Apex
          Court, is, thus, fully applicable to the facts of the present
          case. In this view of the matter, fully applicable to the facts
          of the present case. In this view of the matter, the
          submission of the Counsel for the appellant, in this regard,
D
          does not appear to be cprrect, and stands rejected."
        11. We may notice that the High Court, while arriving at
  the above conclusion, appears to have relied upon the judgment
  of this Court in the case of Sajan Abraham v. State of Kera/a
E [(2001) 6 sec 692].

          12. The High Court has proceeded apparently on the basis
    of substantial compliance of the provisions. The concept of
    substantial compliance appears to have been construed on the
F   basis that PW1 had sent a ruqa and had informed about the
    recovery effected on the basis of which the FIR was registered.
    All these are post-recovery steps taken by PW1 .
        13. Now, the question that arises for consideration is as
  to at what stage and by what time the authorized officer should
G comply with the requirements of Section 42 of the Act and
  report the matter to his superior officer. For this purpose, we
  must refer to Section 42 of the NDPS Act at his stage :
          "Section 42-Power of entry, search, seizure and arrest
H         without warrant or authorisation-(1) Any such officer
 SUKHDEV SINGH v. STATE OF HARYANA                    977
       [SWATANTER KUMAR, J.]

(being an officer superior in rank to a peon, sepoy or A
constable) of the departments of central excise, narcotics,
customs, revenue intelligence or any other department of
the Central Government including para-military forces or
armed forces as is empowered in this behalf by general
or special order by the Central Government, or any such B
officer (being an officer superior in rank to a peon, sepoy
or constable) of the revenue, drugs control, excise, police
or any other department of a State Government as is
empowered in this behalf by general or special order of
the State Government, if he has reason to believe from c
persons knowledge or information given by any person
and taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in respect
of which an offence punishable under this Act has been
committed or any document or other article which may 0
furnish evidence of the commission of such offence or any
illegally acquired property or any document or other article
which may furnish evidence of holding any illegally acquired
 property which is liable for seizure or freezing or forfeiture
 under Chapter VA of this Act is kept or concealed in any E
 building, conveyance or enclosed place, may between
sunrise and sunset,-

(a) enter into and search any such building, conveyance or
place;
                                                             F
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
(c) seize such drug or substance and all materials used in
the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe to G
                                                                  .•
be liable to confiscation under this Act and any document
or other article which he has reason to believe may furnish
evidence of the commission of any offence punishable
under this Act or furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or H
    978       SUPREME COURT REPORTS                  [2012) 11 S.C.R.

A         forfeiture under Chapter VA of this Act; and

          (d) detain and search, and, if he thinks proper, arrest any
          person whom he has reason to believe to have committed
          any offence punishable under this Act:
B         Provided that if such officer has reason to believe that a
          search warrant or authorisation cannot be obtained without
          affording opportunity for the concealment of evidence or
          facility for the escape of an offender, he may enter and
          search such building, conveyance or enclosed place at any
c         time between sunset and sunrise after recording the
          grounds of his belief.

          (2) Where an officer takes down any information in writing
          under sub-section (1) or records grounds for his belief
D         under the proviso thereto, he shall within seventy-two hours
          send a copy thereof to his immediate official superior."

           14. Section 42 can be divided into two different parts. First
    is the power of entry, search seizure and arrest without warrant
    or authorisation as contemplated under sub-section (1) of the
E   said section. Second is reporting of the information reduced
    to writing to a higher officer in consonance with sub-section (2)
    of that section. Sub-section (2) of Section 42 had been a matter
    of judicial interpretation as well as of legislative concern in the
    past. Sub-section (2) was amended by the Parliament vide Act
F   9 of 2001 with effect from 2nd October, 2001. After amendment
    of this sub-section, the words 'forthwith' stood amended by the
    words 'within 72 hours'. In other words, whatever ambiguity or
    leverage was provided for under the unamended provision, was
    clarified and resultantly, absolute certainty was brought in by
G   binding the officer concerned to send the intimation to the
    superior officers within 72 hours from the time of receipt of
    information. The amendment is suggestive of the legislative
    intent that information must reach the superior officer not only
    expeditiously or forthwith but definitely within the time
H   contemplated under the amended sub-section (2) of Section
      SUKHDEV SINGH v. STATE OF HARYANA                    979
            [SWATANTER KUMAR, J.]

42. This, in our opinion, provides a greater certainty to the time A
in which the action should be taken as well as renders the
safeguards provided to an accused more meaningful. In the
present case, the information was received by the empowered
officer on 4th February, 1994 when the unamended provision
was in force. The law as it existed at the time of commission B
of the offence would be the law which will govern the rights and
obligations of the parties under the NDPS Act. In the case of
Basheer@ N.P. Basheer v. State of Kera/a [(2004) 3 SCC
609] wherein this Court was concerned with the Amending Act
9 of 2001 of the NDPS Act, the Court took the view that c
application of the Amending Act, where the trial had been
concluded and appeal was pending on the date of its
commencement and where the accused had been tried and
convicted, would not apply. The contention that trials were not
held in accordance with law was not sustainable for the reason
                                                                   0
that there could be direct and deleterious consequences of
applying the amending provisions of the Act to trials which had
concluded in which appeals were filed prior to the date of
Amending Act coming into force. This would certainly defeat
the first object of avoiding delay in such trials. Another Bench E
of this Court in the case of Jawahar Singh @ Bhagat Ji. v.
State of GNCT of Delhi [(2009) 6 SCC 490], while dealing with
the amendments of Section 21 of the NDPS Act, the Court took
the view that amendments made by Act 9 of 2001 could not
be given retrospective effect as if ii was so given, it would
warrant a retrial which is not the object of the Act. The Court F
held as under :

    "9. It is now beyond any doubt or dispute that the quantum
    of punishment to be inflicted on an accused upon recording
    a judgment of conviction would be as per the law which        G
    was prevailing at the relevant time. As on the date of
    commission of the offence and/or the date of conviction,
    there was no distinction between a small quantity and a
    commercial quantity, question of infliction of a lesser
    sentence by reason of the provisions of the amending Act,     H
    980       SUPREME COURT REPORTS                    [2012] 11 S.C.R.


A         in our considered opinion, would not arise.
          10. It is also a well-settled principle of law that a substantive
          provision unless specifically provided for or otherwise
          intended by Parliament should be held to have a
          prospective operation. One of the facets of the rule of law
B
          is also that all statutes should be presumed to have a
          prospective operation only."

        15. No law can be interpreted so as to frustrate the very
  basic rule of law. It is a settled principle of interpretation of
C criminal jurisprudence that the provisions have to be strictly
  construed and cannot be given a retrospective effect unless
  legislative intent and expression is clear beyond ambiguity. The
  amendments to criminal law would not intend that there should
  be undue delay in disposal of criminal trials or there should be
D retrial just because the law has changed. Such an approach
  would be contrary to the doctrine of finality as well as avoidance
  of delay in conclusion of criminal trial.
       16. Still, reference can be made to the judgment of this
  Court in the case of Ravinder Singh v. State of Himachal
E Pradesh [(2009) 14 SCC 201], wherein this Court was dealing
  with the question as to what would be the law applicable for
  imposition of a sentence irrespective of when the trial was
  concluded with reference to Article 21 of the Act and provision
  of the Punjab Excise Act, 1914 as applicable and amended
F by H.P. Act 8 of 1995 where punishment was enhanced and
  minimum sentenced was provided. The Court held that it is trite
  law that the sentence imposable on the date of commission of
  the offence has to determine the sentence imposable on
  completion of trial'.
G
       17. Even in the case of Hari Ram v. State of Rajasthan
  & Ors. ((2009) 13 SCC 211 ], this Court stated with reference
  to the provisions of the Juvenile Justice (Care and Protection
  of Children) Act, 2000 (as amended by Act of 2006) that the
H relevant date for applicability of the Act so as the age of the
      SUKHDEV SINGH v. STATE OF HARYANA                      981
            [SWATANTER KUMAR, J.]

accused, who claims to be a child, is concerned, is the date of      A
occurrence and not the date of trial.
     18. In the present case, the occurrence was of 4th February,
1994. The Trial of the accused concluded by judgment of
conviction dated 4th July, 1998. Thus, it will be the unamended      B
Section 42(2) of the NDPS Act that would govern the present
case. The provisions of Section 42 are intended to provide
protection as well as lay down a procedure which is mandatory
and should be followed positively by the Investigating Officer.
He is obliged to furnish the information to his superior officer
forthwith. That obviously means without any delay. But there         C
could be cases where the Investigating Officer instantaneously,
for special reasons to be explained in writing, is not able to
reduce the information into writing and send the said
information to his superior officers but could do it later and
preferably prior to recovery. Compliance of Section 42 is            D
mandatory and there cannot be an escape from its strict
compliance.
     19. This question is no more res integra and stands fully
answered by the Constitution Bench judgment of this Court in         E
Kamai/ Singh v. State of Haryana [(2009) 8 SCC 539]. The
Constitution Bench had the occasion to consider the conflict
between the two judgments i.e. in the case of Abdul Rashid
Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513] and
Sajan Abraham (supra) and held as under:-
                                                                     F
     "35. In conclusion, what is to be noticed is that Abdul
     Rashid did not require literal compliance with the
     requirements of Sections 42(1) and 42(2) nor did Sajan
     Abraham hold that the requirements of Sections 42(1) and
     42(2) need not be fulfilled at all. The effect of the two       G
     decisions was as follows:
     (a) The officer on receiving the information [of the nature
     referred to in sub-section (1) of Section 42] from any
     person had to record it in writing in the register concerned
     and forthwith send a copy to his immediate official superior,   H
    982       SUPREME COURT REPORTS                  [2012] 11 S.C.R.


A         before proceeding to take action in terms of clauses (a)
          to (d) of 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,
B         or other means, and the 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 could take action as
c         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.
          (c) In other words, the compliance with the requirements
          of Sections 42(1) and 42(2) in regard to writing down the
D
          information received and sending a copy thereof to the
          superior officer, should normally precede the entry, search
          and seizure by the officer. But in special circumstances
          involving emergent situations, the recording of the
          information in writing and sending a copy thereof to the
E         official superior may get postponed by a reasonable
          period, that is, after the search, entry and seizure. The
          question is one of urgency and expediency.
          (d) While total non-compliance with requirements of sub-
F         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
G
          initiating action, or non-sending of 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
H
      SUKHDEV SINGH v. STATE OF HARYANA                       983
            [SWATANTER KUMAR, J.]
    officer fails to record in writing the information received,      A
    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        B
    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.".                                            c
     20. Having referred to the above settled principle of law,
we are unable to accept the contention raised on behalf of the
State and have to grant our approval to the submission made
on behalf of the appellant.
                                                                      D
     21. As per the statement of PW1, no effort was made by
him to reduce the information into writing and inform his higher
authorities instantaneously or even after a reasonable delay
which has to be explained with reasons in writing. On the
contrary, in the present case, the Investigating Officer PW 1 had
more than sufficient time at his disposal to comply with the          E
provisions of Section 42. Admittedly, he had received the secret
information at 11.30 a.m., but he reached the house of the
accused at 2 p.m. even when the distance was only 6
kilometers away and he was in a jeep. There is not an iota of
evidence, either in the statement of PW 1 or in any other             F
documentary form, to show what the Investigating Officer was
doing for these two hours and what prevented him from
complying with the provisions of Section 42 of NDPS Act.
     22. There is patent illegality in the case of the prosecution    G
and such illegality is incurable. This is a case of total non-
compliance, thus the question of substantial compliance would
not even arise for consideration of the Court in the present case.
The twin purpose of the provisions of Section 42 which can
broadly be stated are that : (a) it is a mandatory provision which    H
ought to be construed and complied strictly; and (b) compliance
    984       SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A of furnishing information to the superior officer should be
  forthwith or within a very short time thereafter and preferably
  post-recovery.
       23. Once the contraband is recovered, then there are other
  provisions like Section 57 which the empowered officer is
8 mandatorily required to comply with. That itself to some extent
  would minimize the purpose and effectiveness of Section 42
  of the NDPS Act. It is to provide fairness in the process of
  recovery and investigation which is one of the basic features
  of our criminal jurisprudence. It is a kind of prevention of false
C implication of innocent persons. The legislature in its wisdom
  had made the provisions of Section 42 of NDPS Act mandatory
  and not optional as stated by this Court in the case of Kamai/
  Singh (supra).
D        24. Thus, the present appeal merits grant of relief to the
    accused. We accordingly set aside the judgment of the High
    Court as well as the Trial Court and acquit the accused of an
    offence under Section 15 of NDPS Act. We direct the accused
    to be set at liberty forthwith, if not required in any other case.
E       25. Before we part with this file, we consider it the duty of
  the Court to direct the Director General of Police concerned of
  all the States to issue appropriate instructions directing the
  investigating officers to duly comply with the provisions of
  Section 42 of NDPS Act at the appropriate stage to avoid such
F acquittals. Compliance to the provisions of Section 42 being
  mandatory, it is the incumbent duty of every investigating officer
  to comply with the same in true substance and spirit in
  consonance with the law stated by this Court in the case of
  Kamai/ Singh (supra).
G       26. The Registry shall send a copy of this judgment to all
    the Director Generals of Police of the States for immediate
    compliance.
          27. The appeal is accordingly allowed.
H 8.8.B.                                           Appeal allowed.