2009 (7) TMI 1144 - SC - Customs

NDPS Act s.42(1)-(2): Writing down received information and promptly sending to superior should normally precede search

SC held that compliance with NDPS Act s.42(1)-(2) - writing down received information and promptly sending it to the superior - should normally precede ... 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: (i) Whether compliance with Section 42(1) and Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory in all circumstances or whether there are circumstances permitting delayed or substantial compliance without vitiating search, seizure and arrest.Analysis: Section 42(1) requires that when an empowered officer has information from personal knowledge or information received from any person he should ordinarily record the information in writing before acting; the proviso requires recording grounds when acting between sunset and sunrise. Section 42(2) originally required that where information is taken down or grounds recorded, a copy be sent forthwith to the immediate superior, and after amendment by Act 9 of 2001 the time to send the copy was specified as within seventy-two hours. Prior decisions established that total non-compliance with the recording-and-reporting requirements adversely affects the prosecution case, but factual variations (such as receipt of information while on patrol or where immediate action is necessary to prevent escape or loss/destruction of evidence) may make literal prior compliance impracticable. Where action is taken in exigent circumstances, recording and sending the report may be postponed for a reasonable period and explained thereafter; whether compliance is adequate is a question of fact. The statutory amendment fixing a 72-hour period for sending the copy reinforces a limited, reasonable temporal flexibility. Total failure to record or to inform the superior remains impermissible; undue or unexplained delay may vitiate the prosecution if it causes prejudice to the accused.Conclusion: Compliance with Sections 42(1) and 42(2) is ordinarily mandatory and should precede entry, search and seizure, but in special or emergent circumstances where immediate action is necessary to prevent escape or loss/destruction of evidence, recording and forwarding the information may be postponed for a reasonable period; delayed compliance with satisfactory explanation (and, after amendment, within the prescribed period) constitutes acceptable substantial compliance, whereas total non-compliance will vitiate the prosecution.