- (1.)The State of Rajasthan is aggrieved by the judgment and order dated 12.05.2003 whereby the High Court acquitted the Respondent of the offence Under Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the 'NDPS Act'). The prosecution case was that on 13.4.1997, Deputy Superintendent of Police, Mahinder Pal Singh Punia recorded information received by him through an informer that one Chhagan Lal Jat, i.e., the Respondent herein has concealed some opium in his well which he was to sell in the night. On receipt of the information, he noted it down and forwarded it to the Superintendent of Police, Chittorgarh. Thereafter, independent panchas were called and the concerned area was cordoned off. It is further the case of the prosecution that at about 5.00 O'clock in the morning, one person was spotted. He was chased and while running the said person threw one bag in the well. On interrogation, the said person is stated to have told the police that he was Chhagan Lal, i.e., the Respondent herein. The Respondent was directed to bring out the bag which was thrown inside the well. He took out the said bag with the help of one Pappu, an independent witness. The search of the bag was conducted. Some brown material was found inside the bag. When tested, it was found to be opium. Thereafter, the necessary procedure was followed and on completion of the investigation, the Respondent came to be charged as aforesaid.
(2.)We have heard learned Counsel for the parties.
(3.)One of the reasons why the High Court has upset the order of conviction and acquitted the Respondent is non-compliance of Section 42(1) of the NDPS Act. Section 42 reads as under:
"42. Power of entry, search, seizure and arrest without warrant or authorisation. - (1) Any such officer (being an officer superior in rank to a person, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 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 conveyance which he has reason to believe may furnish evidence of the commission of 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 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 this Act:

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 enclosed 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 records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.