V. Dutta Gyani, J. —

While decidinga Jail Appeal No.2 of 1990, by appellant Beikhokim against her conviction under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act), a Division Bench of this Court vide order dated 16.5.94 (1994 (2) GLJ 457) has referred the following question :

"Whether recording of the information as required under section 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 contraband goods." for its decision by an 'appropriate' Bench, accordingly this Full Bench has been0 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 under section 42 (1) of the Act is mandatory ? It is the subordinate 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 under section 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 are1 so myriad and mercurially fluctuating that it admits of no singular answer.

3. It is the general proposition of law whether recording of information under section 42 (1) of the 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 Privy 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 cannot 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 under section 42 (1) and sending of report thereof are not mandatory."

4. 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) AR Antulay vs. Ramdas Nayak, (1984) 2 SCC 500.

(4) Sampuran Singh vs. State of Punjab, (1982) 3 SCC 200. Section 42 of the NDPS Act read as follows :

"42. Power of entry, search-seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to peon, sepoy or constable) of the revenue, drugs control, excise, police or any other depart

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