Non-compliance with the provisions of Section 42 of the NDPS Act regarding search and seizure vitiates the trial and can lead to the acquittal of the accused.

JUDGMENT

Tarlok Singh Chauhan, J. (Oral) - The Narcotic Control Bureau has filed the instant Appeal under Section 378 of the Code of Criminal Procedure read with Section 36-B of the NDPS Act against the judgment passed by learned Special Judge, Mandi, H.P. in Sessions Trial No. 20 of 2012 whereby the respondents have been acquitted from the charge framed under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act).

2. The learned Special Judge has acquitted all the Accused on the grounds; firstly, that the independent witness had clearly stated that he had been taken to the office of NCB by his friend Harish where his signature had been obtained by the NCB team. Secondly, the statements of the respondents recorded under Section 67 of the Act, while they were in custody of NCB team have no evidentiary value and reliance in this regards has been placed on the Division Bench judgment Navin Sood vs. Narcotic Central Bureau, (2010) 1 Latest HLJ 449. Thirdly, the non-association of independent witness of locality and the manner in which such witnesses came to be so-called ''associated'' was also held to be a circumstance which made the entire case of the NCB highly doubtful. Lastly, the learned Special Judge after placing reliance on the judgment of this Court in State vs. Parkash Chand, (2010) 1 HLR 598, discarded the report of the Chemical Examiner on the ground that the same was not in accordance with law laid down by this Court in Parkash Chand''s case (supra).

3. At the outset, it may be observed that the judgment rendered in Parkash Chand''s case (supra) does not hold good as has been overruled by the Full Bench of this Court in State vs. Mehboob Khan, (2014) Cr.L.J 705.

4. It is argued by learned counsel for the respondents that even if the grounds on which the respondents have been acquitted by the Court below are ignored even then the respondents are entitled to be acquitted in view of the search being in violation of the provisions of Section 42 of the Act.

We have heard learned counsel for the parties and have gone through the records of the case.

5. 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 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 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