Judgment Intelligence
Conviction Set Aside- Court
- Supreme Court of India
- Date of Decision
- 13 December 2012
- Bench
- Justices Swatanter Kumar and Madan B. Lokur
- Relevant Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 15, 42, 57; Act 9 of 2001
Appeal allowed. The High Court and trial court judgments were set aside; the appellant was acquitted of the Section 15 NDPS offence and to be set at liberty forthwith if not required in any other case. The Registry was to send the judgment to all the Directors General of Police of the States for immediate compliance (paras 24, 26-27).
Source Supreme Court of India, judgment dated 13 December 2012 · Court's copy
Key holdings
- The law on the offence date governs: the unamended Section 42(2) applied to a 1994 offence (paras 14, 18).
- Information must reach the superior officer forthwith, or after a delay explained in writing, preferably prior to recovery (para 18).
- A ruqa and FIR sent after the recovery are post-recovery steps, not substantial compliance (para 12).
- Two unexplained hours before the raid left no excuse for non-compliance (para 21).
- Total non-compliance is a patent, incurable illegality; substantial compliance does not arise (para 22).
- Directors General of Police were to instruct investigating officers on Section 42 compliance (para 25).
Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.
Brief Facts
Questions before the Court (framed by NyayVidhan)
- Which Section 42(2) governed a 1994 offence: the provision as it then stood, or as amended by Act 9 of 2001?
- At what stage and by what time must the officer comply with Section 42 and report to his superior officer?
- Was a ruqa sent after the recovery substantial compliance, and what follows from total non-compliance?
Submissions
For the appellant. The prosecution case must fail for total non-compliance with Section 42 of the NDPS Act, which is mandatory; there was admittedly no compliance, so the whole case was vitiated and he was entitled to acquittal (para 4).
For the State. There was substantial compliance with Section 42: after the recovery the officer sent a ruqa to his senior officer, on which the FIR was registered, as the High Court had accepted, relying on Sajan Abraham. The concurrent conviction called for no interference (paras 5, 10-11).
Court's Findings
Which Section 42(2) applied
Section 42(1) gives the power of entry, search, seizure and arrest; Section 42(2) requires the written information to be reported to a superior officer. Act 9 of 2001, in force from 2 October 2001, replaced ‘forthwith’ in sub-section (2) with ‘within 72 hours’ (para 14). The law in force when the offence was committed governs, and the amendments are not retrospective (Basheer, Jawahar Singh), so the unamended Section 42(2) applied to this 1994 case (paras 14-15, 18).
When Section 42 must be complied with
Section 42 is mandatory. The officer must give the information to his superior forthwith, meaning without any delay; if, for special reasons to be explained in writing, he cannot write it down and send it at once, he may do so later, preferably prior to recovery (para 18). The Constitution Bench in Karnail Singh had settled the point: recording and reporting should normally precede the search, but in emergent situations, as when an officer on patrol gets information calling for immediate action, they may follow it by a reasonable period; total non-compliance is impermissible, while delayed compliance with a satisfactory explanation is acceptable (para 19).
Post-recovery steps and total non-compliance
The High Court had found substantial compliance in the ruqa and the FIR, but these were post-recovery steps (para 12). The officer neither wrote down the information nor told his senior officer (para 8). He had more than sufficient time: nothing showed what he did in the two hours before the raid or what prevented compliance (para 21). This was total non-compliance, a patent and incurable illegality, so substantial compliance did not arise (para 22). Section 42 secures fairness in recovery and investigation and guards against false implication of innocent persons (para 23).
Legal Principle
NyayVidhan's view · Practice note
Why It Matters
It is cited for two points: a ruqa or FIR sent after the recovery is not compliance with Section 42, and where the officer neither recorded the information nor told his superior, the failure is total and incurable, so substantial compliance does not arise (paras 12, 22). When the information came in and what the officer did before the raid are the key facts (paras 9, 21). For an offence committed before Act 9 of 2001 took effect, the unamended Section 42(2) governs (paras 14, 18). In Boota Singh v. State of Haryana (2021) the appellants cited it as following Karnail Singh; the Himachal Pradesh High Court relied on it in State of Himachal Pradesh v. Ramesh Kumar Thakur (2026).
Editorial comment by the NyayVidhan Editorial Desk. It is not part of the Court's judgment and is not legal advice.
Precedents Relied Upon
- Sajan Abraham v. State of Kerala (2001) 6 SCC 692
Noted as the decision the High Court relied on to accept substantial compliance with Section 42 (para 11), and as one of the two judgments whose conflict the Constitution Bench resolved in Karnail Singh (para 19).
- Basheer @ N.P. Basheer v. State of Kerala (2004) 3 SCC 609
Relied on for the view that the Amending Act 9 of 2001 did not apply where the trial had concluded and the appeal was pending on the date of its commencement, in support of the holding that the law at the time of the offence governs (para 14).
- Jawahar Singh @ Bhagat Ji. v. State of GNCT of Delhi (2009) 6 SCC 490
Quoted for the view that the amendments made by Act 9 of 2001 could not be given retrospective effect, as that would warrant a retrial, and that a substantive provision is presumed to operate prospectively (para 14).
View all precedents (7)
- Ravinder Singh v. State of Himachal Pradesh (2009) 14 SCC 201
Referred to for the rule that the sentence imposable on the date of commission of the offence determines the sentence imposable on completion of trial (para 16).
- Hari Ram v. State of Rajasthan & Ors. (2009) 13 SCC 211
Referred to for the view, under the Juvenile Justice (Care and Protection of Children) Act, 2000, that the relevant date for its applicability is the date of occurrence and not the date of trial (para 17).
- Karnail Singh v. State of Haryana (2009) 8 SCC 539
Constitution Bench decision that answered when Section 42 must be complied with: total non-compliance with Sections 42(1) and 42(2) is impermissible, while delayed compliance with a satisfactory explanation is acceptable; its conclusions were quoted and applied to reject the State’s plea of substantial compliance (paras 19-20), and it was cited for Section 42 being mandatory and not optional (para 23) and for the law investigating officers must follow (para 25).
- Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513
Noted as the other judgment, with Sajan Abraham, whose conflict the Constitution Bench resolved in Karnail Singh (para 19).
