| CITATION | (2009) 8 SCC 539 |
| DATE OF JUDGEMENT | 29th July, 2009 |
| BENCH TYPE | Constitutional Bench |
| COURT | Supreme Court of India |
| JURISDICTION TYPE | Criminal Appellate Jurisdiction |
| APPELLANT | Karnail Singh |
| RESPONDENT | State of Haryana |
| BENCH | J.M. Panchal, P. Sathasivam, D.K. Jain, R.V. Raveendran, K.G. Balakrishnan |
INTRODUCTION
Karnail Singh Vs State of Haryana, 2009 is an important case held in the Hon’ble Supreme Court of India under the criminal appellate jurisdiction. It explained and broadly defined the sections of 42, 43 and 50 of NDPS Act. It critically analysed the cases of Abdul Rashid Ibrahim Mansuri Vs State of Gujarat and Sajan Abraham Vs State of Kerala. This case also explained when section 42 of NDPS Act is mandatorily required and to be fulfilled and when mere non-compliance will not vitiate the search. The case involves appellant Karnail Singh and respondent state of Haryana. This was a remarkable case decided in the year 2009.
FACTS OF THE CASE
The case looked through two different cases which provided contrasting opinions on section 42 of NDPS Act. In one case, it was held that there should be mandatory total compliance with section 42 while the other case mentioned that there can be some extent of flexibility in section 42 as to the situation if its considered to be emergency.
The former decision was laid down in the case of Abdul Rashid Ibrahim Mansuri Vs State of Gujarat and the latter decision was laid down in the case of Sajan Abraham Vs State of Kerala.
It was confusing regarding which decision shall be followed in the subsequent cases; Therefore, this larger bench was constituted to resolve the conflicts in both the cases and when section-42 can be considered mandatory and when not. When section-42 should be totally complied and when not.
ISSUE RAISED
- Whether compliance with section-42 of NDPS Act is strictly mandatory?
ARGUMENTS RAISED BY THE APPELLANT
- The learned counsel for appellant has mentioned that non-compliance with section-42 of NDPS Act from the side of police officer which was strictly mandatory will vitiate the search.
- The learned counsel has also cited the case of Abdul Rashid Ibrahim Mansuri Vs State of Gujarat in order to strengthen his argument. The counsel has deeply analysed the case and its judgement in order to draw similarity to the present case.
- In the case of Mansuri, Prosecution witness (PW-2), an inspector at Dariapur police station received some information that one Iqbal Syed Husen was trying to transport charas to Shahpur through the help of autorickshaw. At about 4pm, the autorickshaw was traced which was then driven by the appellant. PW-2 along with his police party stopped it and checked it through which they found four gunny bags placed inside the vehicle. The police took the vehicle to police station and later, it was found that those bags consisted of 10 packets of charas which was concealed therein. The value of those was estimated to be around 5.29 lakhs INR.
- The court in this case held that the police neither reduced the information to writing nor he communicated the aforesaid information to his immediate superior. Therefore, there was non-compliance with sections 42(1) and (2) which led to vitiate the search in appellant’s favour.
- The learned counsel, through above case, pleaded the court that the search in present case should be vitiated as a whole.
ARGUMENTS RAISED BY THE RESPONDENT
- The learned counsel for respondent has mentioned that when the substantial compliance is fulfilled then the search shouldn’t get vitiated and it’d be considered as fulfilment of the requirement as mentioned under section 42 of NDPS Act.
- The learned counsel has also cited the case of Sajan Abraham Vs State of Kerala in order to strengthen his argument. The counsel has deeply analysed the facts and judgement of the case as like the learned counsel for appellant did in the Mansuri case.
- In the case of Sajan Abraham, Prosecution witness-3 (PW-3) was a head constable and one day, during his duty, he received some information regarding the appellant that the appellant was selling injectable narcotic drugs near Blue Tronics Junction, Palluruthy around 7pm. When PW-3 reached Palluruthy police station to communicate the aforesaid information to his superior officer, SI of police, prosecution witness-5 (PW-5), he realised that PW-5 along with other officers has gone on patrolling duty. He forwarded the information to PW-5 during his patrol duty and thereafter, PW-5, PW-3 along with the other police officers proceeded towards the aforesaid place where the appellant can be found.
- The court in this case held that it was difficult for PW-5 to record and reduce into writing when the information was given by PW-3 during patrol duty because had they went on to record the information, the accused would’ve escaped or the evidences would’ve been hindered. Therefore, in such cases, mere compliance with section 42 of NDPS Act is considerable and wouldn’t lead to vitiate the search as a whole.
- The learned counsel, through the above case, pleaded the court that the search in present case shouldn’t be vitiated as a whole as there was mere compliance of section 42 during the emergency situation when the police thinks that the accused may escape or may disturb the evidence.
OBSERVATIONS BY THE SUPREME COURT
The Supreme court in the present case observed that the decision taken in the case of Mansuri was with reference to state of Punjab Vs Balbir Singh and the same decision was also followed in the case of Koluttumottil Razak vs. State of Kerala where there was total non-compliance with section 42 of NDPS Act.
This court also emphasised the provisions of sections 96-103 and section 165 of Cr.P.C as they recognise the necessity of search and seizure during investigation. It also gave emphasis on section 41(1) of NDPS Act (It provides powers to metropolitan magistrate or magistrate of first or second class to issue warrant if he has reasonable grounds to believe that the person has committed offence punishable under chapter-IV of the said act) and section 41(2) of the act (It mentions issue for authorization by officers of departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc.)
It also gave emphasis on section 42(1) (it mentions that an empowered officer if has any prior information given by any other person, should reduce it into writing and communicate the information to immediate superior but when he has his own knowledge to believe that the offence is punishable under chapter-IV, then he can go on with seizure and search without any warrant during sunrise and sunset and he may do without recording his reasons for belief) and section 43 of NDPS Act (It deals with seizure and arrest in a public place.)
The court also clarified that the decision taken in the case of Mansuri was prior to the amendment made in NDPS Act in 2001 as the records or grounds of belief under section 42(1) of the act was followed by the information to be given to the immediate superior but later, through amendment, such report has to be sent within a period of 72 hours.
The court has also mentioned the usefulness of cellular phones and different wireless services in India as it provides certain hope to quality and reliability of those speedy messages and has helped in the field of police investigation.
JUDGEMENT BY THE SUPREME COURT
The court examined the cases of Mansuri and Sajan Abraham and further, drew a difference between both the cases. In the former case, there was total non-compliance with the requirements under section 42 of NDPS Act but in the latter case, there was mere compliance with the act as it was an emergency situation and would’ve disturbed the criminal search and seizure.
The court explained that during emergency situation, its acceptable to postpone the provisions as mentioned under sections 42(1) and 42(2) of NDPS Act for a reasonable time that is after search, entry and seizure. The major question is about urgency and convenience.
The Hon’ble Supreme court of India in this case held that the total non-compliance with section-42 of NDPS Act is impermissible but delayed compliance will be acceptable under section 42 during emergency situation. The situation can be such that the police officer is outside the police station and that’s why he was unable to record the information and went on to seizure and arrest the accused because he could’ve escaped or hindered the evidences. Similarly, if the police is in the police station and has been provided with reasonable opportunity to record down the information and inform it to his superior but if he fails to do so, then there’s violation of section 42 of NDPS Act.
Therefore, whether there is sufficient or substantial compliance with section 42 or not is a “question of fact” which can be decided from case to case. The appeal was disposed thereafter.
CONCLUSION
To conclude, whether section 42 of NDPS act is a mandatory provision or not, whether it should be complied strictly or not is a “question of fact” and depends on facts and circumstances of the case. The aforesaid cases in this case laid to the conclusion and a healthy judgement by the Hon’ble Supreme Court of India. The court also gave emphasis on the urgency and convenience of police and its party from case to case.
REFERENCE
https://indiankanoon.org/doc/1036527
This case analysis is written by Arpeeta Dash, a 3rd semester student of Symbiosis Law School, Nagpur; an intern at Legal Vidhiya.
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