' ' A B KARNAIL SINGH v. STATE OF HARYANA

A recognizes the necessity and usefulness of search and seizure during the investigation. Sub-s. (1) of s.41 of the Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable u"der Chapter IV. Sub-s. (2) of s. 41 refers to issue of authorization for similar purposes by officers of departments of Central Excise, Narcotics, Customs, B c Revenue Intelligence, etc. [Para 7) [487-8-D]

1.3. Sub-s.(1) of s.42 of the Act l~ys down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal D knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without warrant as specified in the sub-section and its E proviso. [Para 8) [487-E-F]

1.4. Sub-s. (2) of s.42 as it originally stood mandated that the empowered officer who took down informa.tion in writing or recorded the grounds of his belief under the F proviso to sub-s. (1 ), should send a copy of the same to his immediate official superior forthwith. But after the amendment in the year 2001, the period within which such report has to be sent has been specified to be 72 hours. Similarly, s.50 of the Act, which prescribes the conditions for search of a person and provides safeguard or protectio.n for search in the presence of a gazetted officer or a Magistrate has been amended by Act 9 of 2001 to meet the emergent situation. [Para 9 and 10] [488- A-8; 492-0) G H

1.5. The Constitution Bench in Baldev Singh* ..,, KARNAIL SINGH v. STATE OF HARYANA 473 r • "'""i, • / considered the compliance of s. 50 of the Act. While A doing so, the Bench also considered the provisions of ss.41 and 42 of the Act. It is to be noted that Baldev Singh's case has dealt with s.50 of the Act and the effect of non-compliance of the same. It was held that the same provisions of s. 50 containing certain protection and B safeguards implicitly make it imperative and obligatory and cast a duty on the investigating officer to ensure that search and seizure of the person concerned is conducted in the manner prescribed by s.50. Through the 2001 amendment the strict procedural requirement as c mandated by Baldev Singh's case was made directory, as relaxation and fixing of the reasonable time to send the 'record to superior official as well as exercise of s. 100 of CrPC was included by the legislature. Though it cannot be said that the protection or safeguard given to the D "' suspects have been taken away completely but certaip' flexibility in the procedural norms were adopted only to baJance an urgent situation. As a consequence the mandate given in Baldev Singh's case is diluted. [Para 14] [490-F; 492-C-D; 493-G-H; 494-B] E State of Punjab vs, Baldev Singh (1999) 6 SCC 172, referred to. ..._

2.1. A careful examination of the facts in Abdul Rashid and Sajan Abraham shows that the decisions revolved on F the facts and do not really lay down different propositions of law. In Abdul Rashid, there was total non-compliance with the provision of s 42. The police officer neither took down the information as required uls 42(1) nor did he inform his immediate official superior, as required by s.42(2). The ratio in Abdul Rashid is that the non-recording • of vital information collected by the police at the first instance can be counted as a circumstance in favour of the accused-appellant. On the other hand, in Sajan Abraham, the facts were different. In that case, it was very difficult, if not impossible, for the Sub-Inspector of police H G ( 474 SUPREME COURT REPORTS [2009] 11 S.C.R. A to record in writing the information and send a copy thereof forthwith to his official superior, as the information was given to him while he was on patrol duty and was moving in a jeep, and unless he acted on the information immediately, the accused would have B escaped. Ttie Sub-Inspector of Police therefore acted, without recording the information into writing but, however, sent a copy of the FIR along with other records regarding arrest of the accused immediately to his superior officer. It is in these circumstances that the Court c helci that the omission to record in writing the information received was not a violation of s.42. [Para 4 and 11] [481- F; 489-B-G]