BEIKHOKIM ALIAS VEIKHOKIN KUKINI Vs. STATE OF MANIPUR

JUDGEMENT

(1.) While deciding a jail appeal No. 2/90, by appellant Beikhokim against her conviction u/s 21 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (for short NDPS Act), a Division Bench of this Court vide order dt. 16.5.94 has referred the following question : "Whether recording of the information as required u/s 42 (1) of the Act is mandatory in a case where no prejudice was caused to the accused at the time of search , and seizure of the contravened (sic) contraband goods." -for its decision by an 'appropriate' Bench., accordingly this Full Bench has been constituted.

(2.) Restricting ourselves to the question as referred, it is vital to see, at what limited area the question is aimed. The question is in two parts of clauses. Whether recording of information as required u/s 42 (1) of the Act is mandatory? It is the sub-ordinate qualifying clause , (in a case) where no prejudice is caused to the accused at the time of: search and seizure of contraband, which holds the key. Really speaking the question therefore as posed is, whether in a case where no prejudice is caused to the accused at the time of search and seizure of contraband, recording of the information u/s 42 (1) of the NDPS Act is mandatory. It is thus clear from the question itself, that it does not envisage or seek an answer to a general proposition of law, but restricts itself to a case where no prejudice is; caused to the accused. Now, causing of prejudice to an accused at the trial, would depend on facts and vary from case to case, eventually giving rise to yet another question, whether it is actual prejudice or likelihood of prejudice being caused to an accused in a given case, would necessarily depend on facts, the shades of prejudice are so myriad and mercurially fluctuating that its admits of no singular answer.

(3.) It is the general proposition of law whether recording of information u/s 42 (1) of NDPS Act is mandatory? irrespective of the question of prejudice to the accused, that we propose to take up for consideration. If the provision is mandatory, then it must be complied with in the manner required by law. No question of prejudice arises nor can any departure be made or justified on that account. The Private Council, as back as 1936 in Nazir Ahmed -Vs- King Emperor, AIR 1936 PC 253 has held in unequivocal terms that if a statute requires a thing to be done in a manner it should be done in that manner or not at all other methods of performance are necessarily forbidden. The principle can not be diluted or departed from, by introducing 'prejudice,' actual or likely being caused or not being caused to the accused. Before examining the proposition, we would like to add that the Bench referring the question, has already recorded its opinion, in the following words : "Accordingly we are of the opinion that reducing of the information in writing as required u/s 42 (1) and sending of report thereof are not mandatory," It would not be out of place to note that Nazir Ahmed (Supra) has been followed by the Supreme Court in several cases, to noted below : (1) Shiv Kumar Chaddha -Vs- MPL Corporation, 1993 (3) SCC 161. (2) Kehar Singh -Vs- Delhi Administration, 1988 (3) SCC 609. (3) A.R. Antulay -Vs- Ramdas Nayak, 1984 (2) SCC 500. (4) Sampuran Singh -Vs- State of Punjab, 1982 (3) SCC 200.