STATE OF KARNATAKA Vs. DONDUSA NAMASA BADDI

JUDGEMENT

(1.) We have hoard the learned Counsel for the parties.

(2.) This matter arises out of a search and seizure which took place on 3rd September, 1987. This appeal was a] so adjourned time and again since the year 1997 to await the decision of the Constitution Bench. This decision has come and is reported as Karnail Singh v. State of Haryana, 2009 8 SCC 539. The question posed was as to the effect of non-compliance with the provisions of Section 42 and in particular 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985. This matter was referred to the Constitution Bench owing to an apparent conflict between two judgments of this Court, Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 2 SCC 513 wherein it was held by a three Judge Bench that compliance with Section 42(2) of the Act was mandatory and failure of the police officer to take down the information received by him in writing and to forthwith send a report to his immediate official superior would cause prejudice to the accused whereas in Sajan Abraham v. State of Kerala, 2001 6 SCC 692which had also been decided by a three Judge Bench it had been held that substantial compliance with the provisions of Section 42 was sufficient. In Karnail Singh's case, however, the Constitution Bench has observed thus:

(3.) Concededly in the present matter, no information was taken down in writing by the police officer or conveyed to the immediate police officer. Shri A.K. Mishra, the learned State counsel has, however, forcefully argued that there was evidence in the oral evidence of P.W. 10, the investigating officer, that he had complied the formalities enjoined by Section 42(2).