IMPORTANT POINT
Contraband--Power of entry, search seizure and arrest warrant—Between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for 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.

A.N. Jindal, J.:-This appeal determines the validity of the judgment dated 29.5.1996 passed by the learned Additional Sessions Judge, Ambala, whereby the accused-appellant Baljit Singh (hereinafter referred to as ‘the accused’) was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’), for keeping in his possession 1.850 kgs of Charas illegally.

2. Briefly stated the facts of the case as unfolded by the prosecution are that on 4.11.1993, Rajinder Singh, Deputy Superintendent of Police, Naraiangarh had come to Ambala City for official work. On that day he received a secret information that the accused and two more persons namely Joginder Singh and Jaspal Singh were indulging in the sale of opium. Upon which, he contacted Superintendent of Police, Ambala and thereafter, at about 8.00 AM, at his instance he along with the police force, Inspector Chaudhary Ram and public witnesses namely Gurdev Singh and Sant Mohan Singh raided and searched the house of the accused. From the search of bed room of his residential house, at the first floor, he recovered 1.850 kgs of charas wrapped in the polythene paper and concealed under the quilt from the bed. After drawing two samples of 50 grams each,the same were converted into parcels, thereafter the parcels containing samples as well bulk opium, were sealed with the seal baring impression “RS” and “CR” and the same were taken into possession vide memo Ex.PA. Ruqa Ex.PB was sent to the police station on the basis of which FIR Ex.PB/1 was recorded. Site plan Ex.PF was prepared; special report Ex.PG was submitted; samples were sent to the Forensic Science Laboratory for analysis and on completion of the investigation, the accused was challaned.

3. Consequently, charge under Section 20 of the Act was framed against the accused to which he opted to contest.

4. In order to substantiate the charge against the accused, the prosecution examined Sant Mohan Singh (PW1), Inspector Chaudhary Ram (PW2), ASI Mool Chand (PW3), HC Kartar Singh (PW4), C. Satyawan Singh (PW5) and DSP Rajinder Singh (PW6). After giving up PW Gurdev Singh, the prosecution closed its evidence.

5. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further added that two days prior to his arrest, he was illegally detained by the CIA Staff and was falsely implicated. He was living on the ground floor and not on the first floor. He is milk vendor and never indulged in such activities but due to enmity, he was falsely implicated in the case. After producing copy of the judgment dated 15.7.1994 Ex.D1, copy of the calendra Ex.D2 and copy of another judgment mark-A, the accused closed his defence.

6. Ultimately, the trial ended in conviction. Hence this appeal.

7. Arguments heard. Records perused.

8. The prosecution case suffers from serious legal infirmities and the question of exclusive possession of the contraband is also in dispute. The present case is based on secret information received by DSP Rajinder Singh, who has also stated that he informed about this information to the Superintendent of Police, Ambala, who had directed him to collect the police and raid the house of the accused. He, while appearing in the court as PW-6, has not stated if he reduced the said information into writing, nor has proved any such writing disclosing the fact that the information so reduced into writing was reliable and sent to the officers superior to him. Superintendent of Police, Ambala, who was contacted by him has also not been examined. Thus, there is a clear cut violation of Section 42 (1) of the Act.

Section 42 (1) of the Act reads as under :-

“42. Power of entry, search, seizure and arrest without warrant or authorisation - (1) Any such officer (being an off