2009 (7) TMI 1144 - SC - Customs

Whether compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act ) is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused? Held that - The compliance with the requirements of Sections 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 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 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. 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. Let the appeals be now placed for disposal before the appropriate Bench.

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Interpretation of amendments to Section 42.
3. Applicability of judicial precedents.
4. Practical implications of compliance with Section 42 in emergent situations.

Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
Section 42 of the NDPS Act mandates that an empowered officer, upon receiving information regarding narcotic drugs or psychotropic substances, must take it down in writing and send it forthwith to his immediate official superior. The judgment highlights the mandatory nature of this provision, emphasizing that non-compliance can prejudice the accused. The Court referenced the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, where it was held that failure to comply with Section 42 would vitiate the search and seizure process. Conversely, in Sajan Abraham vs. State of Kerala, it was determined that substantial compliance was sufficient, especially in situations requiring immediate action.

2. Interpretation of Amendments to Section 42:
The NDPS Act was amended in 2001, changing the requirement for sending information to the superior officer from "forthwith" to "within seventy-two hours." This amendment was intended to provide flexibility in urgent situations, ensuring that the stringent requirements do not hinder law enforcement. The judgment underscores that while the amendment offers some leeway, the core requirement of recording and reporting information remains critical to ensure accountability and prevent misuse of power.

3. Applicability of Judicial Precedents:
The judgment reconciles the conflicting views in Abdul Rashid and Sajan Abraham by stating that the facts of each case determine the applicability of Section 42. In Abdul Rashid, there was total non-compliance with Section 42, leading to the conclusion that the search and seizure were invalid. In contrast, Sajan Abraham involved an emergent situation where immediate action was necessary, and the subsequent compliance with Section 42 was deemed sufficient. The Court clarified that while total non-compliance is impermissible, delayed compliance with a satisfactory explanation is acceptable.

4. Practical Implications of Compliance with Section 42 in Emergent Situations:
The judgment acknowledges the advancements in communication technology, such as mobile phones and wireless services, which facilitate the immediate relay of information. It recognizes that in emergent situations, strict adherence to the procedural requirements of Section 42 may not always be feasible. The Court emphasized that in such cases, officers must act swiftly to prevent the escape of the accused or the destruction of evidence. However, they must document the information and inform their superiors as soon as practicable.

Conclusion:
The judgment concludes that compliance with Section 42 is mandatory, but the timing of compliance can be flexible in urgent situations. The Court emphasized that the purpose of Section 42 is to balance the need for stringent enforcement of the NDPS Act with the protection of individuals from arbitrary actions by law enforcement officers. The judgment provides a nuanced interpretation of Section 42, ensuring that it serves its intended purpose without impeding effective law enforcement.

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