UMRAV Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HAD Chhagan Lal (PW8) SHO, PS Khandela no authority to conduct impugned search in the absence of a specific notification under Section 42 of the Narcotic Drugs & Psychotrophic Substances Act, 1985 which was only issued and came into effect after the impugned search-if so was the trial against the appellant vitiated and could the conviction & sentence not sustain is a twin question which calls for an answer in this appeal arising out of the judgment dated 27-11-87 passed by the Additional Sessions Judge, Neem-ka-Thana, in the offences which have the deleterious effect playing havic with the health and well-being of a large segment of the society. So, in the preface of this judgment I must make it abundantly clear that I do not look upon with equanimity on offences under the Narcotic Drugs and Psychotrophic Substances Act, 1985.

(2.) FACTUAL matrix has little relevance to the issues raised and canvassed at the hearing The chronology of events herein narrated would bring to surface the contentions raised in this appeal.

(3.) FOR a proper appreciation of the points in controversy, it is necessary to deal with the statutory provisions in issue. First I may refer to the provisions of Section 42 of the Drugs Act which run as under :- "42. Power of entry, search, seizure and arrest without warrant or authorisation- (l) 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 the Central Government or of the Border Security FORce 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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 convey nce 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 commission of any offence punishable under Chap IV relating to such drug or substance; and (d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enlcosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or record grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. "