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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
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.
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