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TMI Blog2018 (9) TMI 2147X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in writing and sending and copy thereof to the superior officer may be postponed by a reasonable period and may be effected after the search, entry and seizure. Such an exception illustratively has been laid down by the Constitution Bench to be in a case where the accused may escape or the goods or evidence may get destroyed or removed. In the present case PW-1, who is the Investigating officer, in his deposition has stated that the information i.e. the contraband was being carried from the Indo-Nepal Border identified in a vehicle, details of which had also been provided, had been received in the evening of 2nd July, 2007. Though, the investigating officer has stated that he had moved to Raxaul along with a team and two independent wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two 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, 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, or other means, and the information calls for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 officer fails to record in writing the information received, 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul which is on the international border and therefore, he did not have the time to record said information as per requirement of Section 42 of the Act, the matter does not rest there. There are other suspicious circumstances affecting the credibility of the prosecution case. Though, the investigating officer has stated that he had moved to Raxaul along with a team and two independent witnesses, the said independent witnesses were not examined. No explanation is forthcoming on this count also. That apart from the materials on record it appears that no memos including the seizure memo were prepared at the spot and all the papers were prepared on reaching the police station at Patna on 4th July, 2007. 8. The above, in our considered view, woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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