KISHAN CHAND versus STATE OF HARYANA

Citation: [2012] 11 S.C.R. 1010 · Decided: 13-12-2012 · Supreme Court of India · Bench: SWATANTER KUMAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2012] 11 S.C.R. 1010 
KISHAN CHAND 
v. 
STATE OF HARYANA 
(Criminal Appeal No. 1375 of 2008) 
DECEMBER 13, 2012 
[SWATANTER KUMAR AND MADAN B. LOKUR, JJ.] 
Narcotics Drugs and Psychotropic Substances Act, 1985: 
c 
s.42 - Non-compliance of - Held: Provisions of s. 42 or 
s. 50 being mandatory require exact and definite compliance 
as opposed to the principle of substantial compliance - The 
trial court clearly recorded that the 10 did not reduce the secret 
information in writing nor did he send the same to the higher 
D officer or to the police station for registration of the case - The 
Investigating Officer, in the examination-in-chief, while 
referring to the story of the prosecution, does not state that 
he had made the report immediately upon receiving the 
secret information and had informed his senior officers - In 
view of the total non-compliance of s. 42, non-involvement of 
E any independent witness at any stage of the investigation and 
the presence of the Tehsildar-cum-Executive Magistrate being 
doubtful, prosecution has failed to prove its case beyond 
reasonable doubt - Both the courts below have fallen in error 
of law as well as that of appreciation of evidence - Accused 
F is acquitted - Constitution of India, 1950 - Art.136. 
ss. 42, 50 and 57 - Compliance of - Held: These 
provisions provide separate rights and protections - They are 
neither inter-linked nor inter-dependent so as to dispense 
G compliance of one with the compliance of another - In fact, 
they operate in different fields and at different stages - That 
distinction has to be kept in mind by the courts while deciding 
such cases - The sending of report as required uls. 57 of the 
Act the following day will be no compliance, factually and/or 
H 
1010 
KISHAN CHAND v. STATE OF HARYANA 
1011 
in the eyes of law to the provisions of s. 42 of the Act. 
A 
The appellant along with another accused was 
prosecuted for committing an offence u/s 18 of the 
Narcotics Drugs and Psychotropic Substances Act, 1985 
(the Act). The prosecution case was that on 19-7-2000, on 8 
receiving secret information, PW7, who at the relevant 
time was the Station House Officer of Police Station, 
apprehended the appellant, who was driving a scooter, 
with the other accused as the .Pillion rider. P.W. 7 called 
the Tehsildar (PW-5), who directed the former to conduct C 
the search of the scooter. Thereupon 3.800 kg of opium 
was stated to have been recovered from the dicky of the 
scooter. The trial court acquitted the other accused, but 
convicted the appellant u/s 18 of the Act and sentenced 
him to undergo RI for 10 years and to pay a fine of Rs. 1 
lakh. The High Court upheld the conviction and the D 
sentence. 
In the instant appeal filed by the convict, it was 
contended for the appellant that there was no 
compliance with the provisions of sub-ss (1) and (2) of E 
s. 42 of the Act. The appellant also raised a serious doubt 
about the recovery and the very presence of PW5. 
Allowing the appeal, the Court 
HELD: 1.1. The language of s. 42 Narcotics Drugs F 
and Psychotropic Substances Act, 1985 does not admit 
any ambiguity. The provisions likes. 42 ors. 50 of the Act 
are the provisions which require exact and definite 
compliance as opposed to the principle of substantial 
compliance. The Constitution Bench in the case of G 
Karnail Singh* carved out an exception which is not 
founded on substantial compliance but is based upon 
delayed compliance duly explained by definite and 
reliable grounds. These are indefeasible, protective rights 
vested in a suspect and are incapable of being shadowed H 
1012 
SUPREME COURT REPORTS 
[2012] 11 S.C.R. 
A on the strength of substantial compliance. The purpose 
of these provisions is to provide due protection to a 
suspect against false implication and ensure that these 
provisions are strictly complied with to further the 
legislative mandate of fair investigation and trial. It will be 
B opposed to the very essence of criminal jurisprudence, 
if upon apparent and admitted non-compliance of these 
provisions in their entirety, the Court has to examine the 
element of prejudice. The element of prejudice is of some 
significance where provisions are directory or are of the 
C nature admitting substantial compliance. Where the duty 
is absolute, the element of prejudice would be of least 
relevancy. Absolute duty coupled with strict compliance 
would rule out the element of prejudice where there i:; 
total no

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