The proviso to Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act, which requires the officer conducting the search to record the grounds of his belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, is mandatory and its violation vitiates the trial.

Vaidyanatha, J. :- This is appeal against Judgement dated 23-1-1995 in Special Criminal Case No. 14 of 1994 on the file of the Special N.D.P.S. Act, Mapusa, Goa. Heard the learned counsel for the Appellant and the learned Public Prosecutor for the State.

2. The Appellant and three others were prosecuted by the police for an offence under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the said Act").

The prosecution case is that when the police party was on rounds on 23-12-1993 at about 8.00 p.m. they noticed the two accused persons, the Appellant and one another, who are arrayed as Accused-1 and Accused 2 in the Court below, moving in suspicious manner; the police suspected them to be dealing in drugs. Then A-1 and A-2 were apprehended and were interrogated. Then A-1 and A-2 led the police party to a particular house when the police called the panchas. When they entered the house and took search of the house, they found in a drawer of the cupboard, the key of which was found with A-1, 2 Kgs. of Charas. They also found 6.5 Kgs. of Charas in a suit-case. A-3 and A-4 were inside the room. The Charas was seized under a panchanama in the presence of panchas. All the 4 accused were arrested.

After due investigation charge-sheet was filed for the offences punishable under Section 20(b)(ii) of the said Act against all the 4 accused.

3. The defence of all accused was one of' total denial.

4. After trial, the learned Special Judge held that the prosecution has proved its case against A-1 and convicted A-1 and sentenced him to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- or in default to suffer R.I. for 1 more year. A-2 to A-4 were acquitted. Being aggrieved by the conviction and sentence, A-1 has preferred this appeal.

5. The learned counsel appearing for the Appellant has questioned the correctness and legality of the impugned order. It was maintained that the prosecution has not proved its case and even otherwise, the trial is vitiated since the Investigating Agency has not followed the mandatory provisions of the said Act. On the other hand, the learned Public Prosecutor supported the impugned order.

6. The point for consideration is whether the Appellant's conviction and sentence is sustainable in law or not.

7. As far as the search and seizure are concerned, we have the evidence of 2 Sub-Inspectors of Police and one panch witness. The prosecution produced the Landlady to give evidence that she had let out her one room to the accused persons. Then there is also evidence of the expert for having done chemical analysis of the seized drugs.

8. In our view, the Appeal has to succeed on a short legal ground. Admittedly, the search in this case is from a house and that too between 9.00 p.m. and onwards; which is after sunset and before sun rise. In such a seizure the provisions of Section 42 of the said Act are attracted. In particular we are concerned with the first proviso to Section 42(1) of the said Act, which is as follows :

"Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief."

The learned Counsel of the Appellant has contended that in this case admittedly no such record was made by the Investigating Officer before he entered the premises and therefore, he has violated the proviso to Section 42(1) which has been held to be mandatory by the' apex Court.

9. In Balbir Singh's case reported in AIR 1994 SC 1872 the apex Court had occasion to consider number of provisions of the said Act and ultimately held that certain provisions of the Act are mandatory in nature and that the violation of which will vitiate the trial. We are only concerned with the proviso to S. 42