Non-compliance of the mandatory requirement of recording the grounds of belief before conducting a search between sunset and sunrise under the proviso to Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 vitiates the trial and renders the conviction and sentence unsustainable.

C. R. PAL, J.

( 1 ) THE appellants assail the order of conviction and sentence passed in G. R. Case No. 315 of 1993 by the Sessions Judge, Kalahandi - Muspada, Bhawanipatna convicting the appellant under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') and sentencing each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- each and in default to undergo rigorous imprisonment for a further period of one year.

( 2 ) THE case against the appellants is that on 12-8-1998 at about 5. 00 A. M. while the S. I. of Police, Junagarh Police Station (P. W. 9) along with other staff were patrolling near village Jaring, he found the appellants proceedings towards Bhawanipatna on a Hero Honda Motor cycle bearing registration No. MCR 9532. He signalled the appellants to stop, but ignoring the signals they sped-away. So the S. I. with other police staff chased them on a jeep and managed to stop them near Sagada close to Dhaba. There was a bag on the motor cycle and on opening the bag the S. I. found that it contained Ganja. The appellants disclosed their names and addresses being asked by the S. I. , but they failed to produce any licence for carrying the contraband articles. As no weighing scale was with the patrolling party and no independent witness was also available nearby, the appellants along with the motor cycle and the bag were taken to Junagarh Police Station and produced before the O. I. C. to whom the S. I. , submitted a written report, Ext. 2. The O. I. C. onreceiving the report registered a case, seized the motor cycle and took the weight of the Ganja which on weighment came to 15 Kgs. and seized the same under seizure list, Ext. 1/2. He collected samples of Ganja and separately packed it in two packets each containing 50 grams and sealed the same in presence of the V. A. S. Junagarh. Thereafter, he arrested the appellants and forwarded them to Court. Subsequently, the samples collected were sent to the R. F. S. L. , Berhampur and after receiving the report of the Chemical Examiner which revealed that the samples sent to the Chemical Examiner were Ganja, submitted charge-sheet against the appellants who stood charged for the offence under Section 20 (b) (i) of the Act for possessing Ganja. Their case was a complete denial of the allegations levelled against them. However, the trial Court relying on the evidence adduced by the witnesses and the documents exhibited by the prosecution, convicted and sentenced the appellants as mentioned above.

( 3 ) THE learned counsel appearing for the appellants assails the order of conviction and sentence mainly on the grounds of non-compliance of the requirements of the proviso to Section 42 (1) and for insufficient evidence to connect the appellants with the alleged offence. The learned Addl. Standing Counsel, however, made his submission in support of the order of conviction and sentence. According to the Addl. Standing Counsel, the plea of non-compliance of Section 42 (1) of the Act having not been raised during trial, the appellants cannot raise the same for the first time in appeal.

( 4 ) BEFORE coming to the other contention, the objection raised by the learned Addl. Standing Counsel relating to the plea of the appellants about the non-compliance of the proviso to Section 42 (1) of the Act, it may suffice to mention that the plea relating to non-compliance of the proviso which is mandatory in nature being a legal plea can be raised for the first time in appeal. A single Bench of this Court in Bijay Kumar Subudhi v. State reported in (1995) 8 OCR 315 has also taken a similar view on the question. The above view also gets support from the principle laid down by the apex Court in Saiyed Md. Saiyed Umar Saiyed v. State of Gujarat, (1995) 9 OCR (SC) 168 : (1995 Cri LJ 2662) wherein the apex Court has held that the provision of Section 50 of the Act being mandatory is sacrosanct and a plea relating to the