1. Police searched premises at 3.00 a.m. and apprehended accused preparing opium mixed with chocolate. (Para 1 )
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2002 Supreme(SC) 2332
SUPREME COURT OF INDIA
B.N. Kirpal, CJI., K.G. Balakrishnan, Arijit Pasayat, JJ.
Chhunna alias Mehtab - Appellant
Versus
State of M.P. - Respondent
Criminal Appeal No. 727 of 2001
Muhammad Sharif - Appellant
Versus
State of M.P. - Respondent
Criminal Appeal No. 1003 of 2001
Decided On : 07-08-2002
Non-compliance with the mandatory proviso to Section 42 of the NDPS Act, specifically the failure to obtain a search warrant or record justifications for its absence during a search conducted between sunset and sunrise, renders the subsequent trial vitiated.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act - Section 42 - Proviso - Search of premises between sunset and sunrise - Non-compliance with the requirement of obtaining a search warrant or authorization, or recording grounds for the plea that evidence would escape if opportunity for authorization was accorded - Trial stood vitiated. (Para 2)
Facts of the case:
Police party entered a premises at 3.00 a.m. and apprehended accused persons who were allegedly preparing opium and mixing it with chocolate.
Findings of Court:
The search took place between sunset and sunrise. It was admitted that before the entry, neither a search warrant nor authorization was obtained, nor were the grounds indicated regarding the potential escape of evidence.
Issues: Whether the non-compliance with the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act regarding the procurement of a search warrant for a nighttime search vitiates the trial.
Ratio Decidendi: When a search of a building is conducted between sunset and sunrise, compliance with the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act is mandatory; failure to obtain a warrant or record the reasons for not doing so vitiates the trial.
Result: Appeals allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
-
statutory interpretation
-
narcotic drugs and psychotropic substances act 1985
- section 42 (Para 2)
-
narcotic drugs and psychotropic substances act 1985
Table of Contents
2. Non-compliance with proviso to Section 42 of NDPS Act for search between sunset and sunrise without warrant. (Para 2 )
3. Search was without warrant or authorization; non-compliance with proviso to Section 42 vitiated the trial. (Para 2 )
4. Non-compliance with proviso to Section 42 of NDPS Act for search between sunset and sunrise vitiates trial. (Para 2 )
5. Appeals allowed; trial stood vitiated due to non-compliance with Section 42 proviso. (Para 3 )
6. Does non-compliance with the proviso to Section 42 of the NDPS Act vitiate the trial?
Yes, failure to obtain a search warrant or authorization for a search between sunset and sunrise, without showing grounds for urgency, vitiates the trial. (Para 2 )
ORDER :
The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate.
2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorisation was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been a non-compliance with the provisions of the proviso to Section 42 and, therefore, the trial stood vitiated.
3. The appeals are, accordingly, allowed.
Appeals allowed.
