The main legal point established in the judgment is the requirement of immediate recording of information and sending it to the superior officer under Section 42 of the Narcotic Drugs & Psychotropic Substances Act, 1985, and the permissibility of delayed compliance in emergent situations as interpreted by the Apex Court.

Deepak Gupta, J. (Oral)-This appeal by the State is directed against the judgment of the learned Additional Sessions Judge, Sirmour, Camp at Solan dated 26.11.1994 in Sessions Trial No. 9-NS/7 of 1994, whereby he acquitted the accused of having committed an offence punishable under Sections 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’).

2. The prosecution story in brief is that on 17.10.1993 PW-8 SI Niranjan Singh, SHO Police Station, Dharampur was on patrolling duty. According to the prosecution while the patrolling was going on, secret information was received by PW-8 at about 2.00 A.M. that the accused persons were coming from Solan side towards Dharampur on Scooter No.DEJ-8809 alongwith some contraband substance. On receiving this information, PW-8 also associated PW-1 Mehar Singh and another independent witness Charanjit Singh (since deceased) with the raiding party and then set up a Nakka near “Patta Mor”. At about 4.00 a.m. the accused persons came on the scooter in question. The scooter was got stopped. Accused Phool Kumar was driving the scooter and accused Dinesh Kumar was the pillion rider. The Investigating Officer told that he was suspicious that the accused were carrying some contraband substance and wanted to search them and also their scooter. He gave them an option of being searched by him or before a gazetted officer. The accused agreed to be searched by him. Nothing was recovered from the personal search. However, on search of the scooter below the petrol tank ‘Charas’ was recovered which on weighment was found weight of 2 Kgs. 650 grams.

3. PW-8 separated a sample of 100 grams of Charas and sealed it with seal impression ‘H’. The seal was handed over to PW-1 Mehar Singh. The case property was then taken into possession vide memo Ext.PC. In the meantime, Additional SP also arrived at the spot and the accused persons alongwith the recovery memo were produced before this officer. The Additional SP then attested the recovery memo and sealed parcel of the Charas. Ruka Ext. PF was sent for the registration of a case through Constable Ram Paul on the basis of which formal FIR was registered. Accused persons were arrested. Thereafter the case property was deposited by PW-8 with PW-4 Ram Gopal, MHC, Police Station, Dharampur, who made requisite entry in the Malkhana register. Sample of charas was sent through PW-5 LHC Jagtar Singh for analysis to the Public Analyst, Kandaghat alongwith road certificate. On analysis the sample was found to be that of charas. On this basis challan was filed against the accused. Both were charged for committing an offence punishable under Section 20 of the Act. The accused were acquitted mainly on two grounds. Firstly that there was non-compliance of Section 42 of the Act and secondly that the provisions of Section 50 has not been complied with.

4. As far as Section 50 is concerned, in our considered opinion, the same may not be applicable to the facts of the present case since admittedly the charas in question was not recovered from the person of the accused but from the scooter in question. This, therefore, does not appear to be a case of personal search and even if there was non-compliance of Section 50, it would not be fatal to the prosecution.

5. Section 42 of the Act reads as follows:-

“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 para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being any 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 it empowered in this behalf by