TMI Blog2012 (12) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. JUDGMENT Swatanter Kumar, J. 1. The present appeal is directed against the judgment dated 27th March, 2008 pronounced by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 802-SB of 1998. We may notice the case of the prosecution and the facts which have given rise to the filing of the present criminal appeal. 2. On 4th February, 1994, ASI Nand Lal along with HC Hoshiar Singh, HC Suraj Bhan and other police officials were present in village Jogewala, in connection with patrolling duty. ASI Nand Lal, who was examined as PW 1, received secret information against the accused that the accused was in the habit of selling chura post (poppy husk) in his house and if a raid is conducted upon the house of the accused, the accused can be caught redhanded with the contraband. One Nacchatter Singh is stated to have been associated with the raiding party which raided the house of the accused. However, this witness was declared hostile before the Court during his examination. On conducting a search, five bags were found lying concealed under a heap of chaff in the courtyard of the house of the accused. On suspicion of having some intoxicant in his p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantum of sentence vide its order dated 6th July, 1998 awarded 10 years rigorous imprisonment to the accused with fine ₹ 1 lakh and in the event of default to undergo simple imprisonment for another two years. The legality and correctness of the judgment and order of sentence was challenged by the accused before the High Court. 3. The High Court vide its detailed judgment dated 27th March, 2008 declined to interfere with the judgment of the Trial Court and while upholding the same, maintained the order of sentence, giving rise to the filing of the present appeal. 4. The only contention raised before us on behalf of the appellant is that the case of the prosecution must fail for total non-compliance of the statutory provisions of Section 42 of NDPS Act. These provisions are mandatory and in the present case, there is admittedly no compliance of the said provisions, thus the accused is entitled to acquittal as the whole case of the prosecution is vitiated in law. 5. To the contra, the contention on behalf of the State is that there is substantial compliance of the provisions of Section 42 of NDPS Act and therefore, the concurrent judgments of conviction and order of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining churapost were sealed with the seals NL and JN and were taken into possession vide recovery memo Ex. PE attested by DSP Jegdish Nagar, Nichhatar Singh, Suraj Bhan H.C. Seal NL after use was handed over to Hoshiar Singh H.C., while the seal JN was retained by the DSP himself I sent ruqa Ex. PF to the Police-Station for registration of a case on which for-mail FIR Ex.PF/1 was recorded by Shri Davinder Kumar ASI whose signatures I identify. 8. It is clear from the statement of PW1 that he, upon receiving the secret information, neither reduced the same in writing nor communicated to his senior officer about receiving the secret information as required under Section 42 of NDPS Act. 9. In his cross-examination, he admitted that he had received the secret information at about 11.30 a.m. at Village Jogewala. He did not know from where the secret information was received. He was in a jeep. The distance between the house of the accused and the spot where he was at the time of receiving the secret information was merely 6 kilometers, but he reached the house of the accused only at 2 p.m. He also admitted that the house of the accused was situated in the middle of the village in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case. In this view of the matter, the submission of the Counsel for the appellant, in this regard, does not appear to be correct, and stands rejected. 11. We may notice that the High Court, while arriving at the above conclusion, appears to have relied upon the judgment of this Court in the case of Sajan Abraham v. State of Kerala [(2001) 6 SCC 692]. 12. The High Court has proceeded apparently on the basis of substantial compliance of the provisions. The concept of substantial compliance appears to have been construed on the basis that PW1 had sent a ruqa and had informed about the recovery effected on the basis of which the FIR was registered. All these are post-recovery steps taken by PW1. 13. Now, the question that arises for consideration is as to at what stage and by what time the authorized officer should comply with the requirements of Section 42 of the Act and report the matter to his superior officer. For this purpose, we must refer to Section 42 of the NDPS Act at his stage : Section 42-Power of entry, search, seizure and arrest without warrant or authorisation-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 14. Section 42 can be divided into two different parts. First is the power of entry, search seizure and arrest without warrant or authorisation as contemplated under sub-section (1) of the said section. Second is reporting of the information reduced to writing to a higher officer in consonance with sub-section (2) of that section. Subsection (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd October, 2001. After amendment of this sub-section, the words forthwith stood amended by the words within 72 hours . In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within 72 hours from the time of receipt of information. The amendment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that a substantive provision unless specifically provided for or otherwise intended by Parliament should be held to have a prospective operation. One of the facets of the rule of law is also that all statutes should be presumed to have a prospective operation only. 15. No law can be interpreted so as to frustrate the very basic rule of law. It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression is clear beyond ambiguity. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as avoidance of delay in conclusion of criminal trial. 16. Still, reference can be made to the judgment of this Court in the case of Ravinder Singh v. State of Himachal Pradesh [(2009) 14 SCC 201], wherein this Court was dealing with the question as to what would be the law applicable for imposition of a sentence irrespective of when the trial was concluded with refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in a jeep. There is not an iota of evidence, either in the statement of PW 1 or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 of NDPS Act. 22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total noncompliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that : (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery. 23. Once the contraband is recovered, then there are other provisions like Section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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