IMPORTANT POINT
When mandate of proviso to sub-section (1) of Section 42 of NDPS Act has not been followed by authorised officer before conducting the search, conviction could not be sustained.

ORDER

On a specific information received by him, Shri Priya Ranjan Patra - PW-5, recorded the information in the station diary, entry No. 57 and proceeded to house of the respondent for effecting the recovery of opium, allegedly concealed therein. The house of the accused was searched between 2 a.m. and 3 a.m. in the presence of the witnesses and opium total weighing 2.690 kgs. recovered. After compliance of the legal formalities, the contraband was seized and the accused arrested. The trial court after recording evidence found the respondent guilty for the commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act ) and sentenced him rigorous imprisonment for ten years besides paying a fine of Rs. 1 lakh and in default to payment of fine to undergo further R.I. for two years and 6 months.

2. Not satisfied with the judgment of the trial court, the respondent filed criminal appeal No. 32 of 1993 in the High Court, which was allowed vide the judgment impugned and he was acquitted of the charge. The High Court found that the mandatory provisions of section 42 and section 50 of the Act had been violated.

3. Mr. R.S. Jena, learned counsel appearing for the appellant-state has submitted that the High Court committed an error of law by holding that as the provisions of section 50 of the Act were violated, the respondent was entitled to be acquitted. It is contended that in the facts and circumstances of the case, section 50 of the Act was not at all applicable, so there was no question of its violation. Section 50 of the Act deals with the conditions under which a search of a person can be conducted. It does not refer to the search of a house or any other place. As admittedly the person of the respondent was not subjected to search, the provisions of section 50 of the Act were not applicable. The High Court, therefore, committed a mistake of law in holding the violation of section 50 of the Act in the instant case.

4. The learned counsel for the appellant-state further contended that as the provisions of section 42 of the Act had been substantially complied with, the High Court was not justified in arriving at the conclusion regarding its violation. Section 42 of the Act provides:

"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 a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a state government as is empowered in this behalf by general or special order of the state government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under chapter IV relating to such drug or substance; and