NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985:

ss.42(1) and 42(2) - Power of entry, search and seizure and arrest without warrant or authorization - Requirement of taking down in wr(ting by empowered officer the information regarding commission of offence in respect of any narcotic drug or psychotropic substance, and sending a copy thereof to his immediate official superior - HELD: On receiving the information, it has to be recorded in the relevant register and a copy thereof to be sent forthwith to the immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of s.42(1) - But, if information is received while officer is on move either on patrol duty or otherwise either by mobile phone or otherwise and infonnation calls for immediate action and delay would frustrate the purpose, action can be taken as per clause (a) to (d) of s.42(1) and thereafter, as soon as it is possible, information be recorded in writing and sent forthwith to official superior - While total non-compliance of requirement of sub ss.(1) and (2) of s.42 is impermissible, delayed compliance with satisfactory explanation, which is a question of fact, would be acceptable compliance of s.42 - This position got strengthened with amendment to s.42 by Act 9 of 2001 - Code of Criminal Procedure, 1973 - ss. 96 to 103 and s. 165.

The instant appeals were referred to the Constitution Bench in view of diverse opinions stated to have been expressed by two three Judge Benches of the Supreme Court in Abdul Rashid and Sajan Abraham regarding scope and applicability of s.42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in the matter of conducting search, seizure and arrest without warrant or authorisation. In Abdul Rashid, the Court held that compliance of s.42 of the Act was mandatory and failure to take down the information in writing and to send forth with a report to the immediate superior official would cause prejudice to the accused; whereas in Sajan Abraham the Court held that s.42 was not mandatory and substantial compliance thereof was sufficient.