Non-compliance with mandatory provisions of Section 42 of the NDPS Act vitiates the trial and affects the prosecution's case.

JUDGMENT :

K.R. SHRIRAM, J.

1. This is an appeal impugning an order and judgment dated 15-5-2004 passed by Learned Additional Sessions Judge Cum-Special Judge for NDPS Act, Pandharpur, acquitting all the accused of offence punishable under Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substance Act 1985 (NDPS Act).

2. Apart from the failure of the prosecution on merits, the Trial Court has also observed that the prosecution has not complied with the mandatory provisions of Section 42 of the NDPS Act. Section 42 of the NDPS Act reads as under:

“42. Power of entry, search, seizure and arrest without warrant or authorization - (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 including paramilitary forces or armed forces 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act.

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector.

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.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”

3. The Learned APP in all fairness stated that the findings of the Trial Court in Paragraphs 25 and 26 of the impugned judgment are correct. The Learned APP handed over to the court the judgment of the Apex Court in Dalel Singh vs. State of Haryana, (2010) 1 SCC 149, in which, the court has quoted paragraph 12 of the judgment rendered by Constitution Bench of Apex Court in Karnail Singh vs. St