LexKARNAIL SINGH versus STATE OF HARYANA
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A B (2009] 11 S.C.R. 470 KARNAIL SINGH v. STATE OF HARYANA (Criminal Appeal No. 36 of 2003) JULY 29, 2009 [K.G. BALAKRISHNAN, CJI, R.V. RAVEENDRAN, D.K. JAIN, P. SATHASIVAM AND J.M. PANCHAL, JJ.] NARCOTIC DRUGS AND PSYCHOTROPIC C SUBSTANCES ACT, 1985: ss.42(1) and 42(2) - Power of entry, search and seizure and arrest without warrant or autfJorization - Requirement of taking down in wr(ting by empowered officer the infonnation 0 regarding commission of offence in respect of any narcotic drug or psychotropic substance, and sending a copy thereof to his immediate official superior - HELD: On receiving the infol7Tlation, it has to be recorded in the relevant register and _a copy thereof to be sent forthwith to the immediate official superior, before proceeding to take action in tenns of clauses E (a) to (d) of s.42(1) - But, if infonnation is received while officer is on move either on patrol duty or otherwise either by mobile phon,e or otherwise and infonnation calls for immediate action and delay would frustrate the purpose, action can be taken as per clause (a) to (d) of s.42(1) and thereafter, as soon as F it is possible, information be recorded in writing and sent forthwith to official superior - While total non-compliance of requirement of sub ss.(1) and (2) of s.42 is impermissible, delayed compliance with satisfactory explanation, which is a question of fact, would be acceptable compliance of s.42 - G This position got strengthened with amendment to s.42 by Act 9 of2001 - Code of Criminal Procedure, 1973- ss. 96 tb 103 ands. 165. The instant appeals were referred to the Constitution H 470 ' ' • y KARNAIL SINGH v. STATE OF HARYANA 471 Bench in view of diverse opinions stated to have been A expressed by two three Judge Benches of the Supreme Court in Abdul Rashid1 and Sajan Abraham2 regarding scope and applicability of s.42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in the matter of conducting search, seizure and arrest without warrant or B authorisation. In Abdul Rashid, the Court held that compliance of s.42 of the Act was mandatory and failure t to take down the information in writing and to send forth with a report to the immediate superior official would cause prejudice to the accused; whereas in Sajan c Abraham the Court held that s.42 was not mandatory and substantial compliance thereof was sufficient. Answering the reference, the Court HELD: 1.1. The Narcotic Drugs and Psychotropic D ,, Substances Act, 1985, keeping in view its objects, prescribes stringent punishment. Therefore, a balance must- be struck between the need of the law and the enforcement of such law on the one hand and the · protection of citizens from oppression and injustice on E the other. The provisions contained in Chapter V of tne Act, comprising s.42, intended for providing cert"in checks on exercise of powers of the authority concerned, and are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance .is F required. The statute mandates that the prosecution must prove compliance with the said provisions. (Para 3] [478- G-H; 479-A-B] 1.2. Search and seizure are essential steps in the armoury of an investigator in the investigation of a G criminal case. The Code of Criminal Procedure, 1973 in various provlSions, particularly, ss. 96 to 103' and s.165, 1. Abdul Rashid Ibrahim Mansud vs. State of Gujarat 2000 ( 1 ) SCR 542. 2. Sajan Abraham vs. State of Kera/a 2001 Suppl. (1 ) SCR 335. H 472 SUPREME COURT REPORTS [2009] 11 S.C.R. A recognizes the necessity and usefulness of search and seizure during the investigation. Sub-s. (1) of s.41 of the Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may B issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable u"der Chapter IV. Sub-s. (2) of s. 41 refers to issue of authorization for similar purposes by officers of departments of Central Excise, Narcotics, Customs, c Revenue Intelligence, etc. [Para 7) [487-8-D] 1.3. Sub-s.(1) of s.42 of the Act l~ys down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal D knowledge that offences under Chapter IV have been
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