Nirmaljit Kaur, J. - (1.) THIS is an appeal under Sec. 374(2) Cr.P.C. against the judgment and order dt. 28.07.2008 passed by the Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 75/2006 vide which, the appellants have been convicted for the offences under Sec. 8/15 of the Narcotic Drugs and Psychotropic Substances Act (for short, the NDPS Act') and sentenced them to undergo rigorous imprisonment for ten years with a fine of Rs. 1,00,000/ - and in default of payment of fine, to further undergo one year rigorous imprisonment. Background facts in a nutshell are as follows:
(2.) ON 15.12.2005 at about 8.10 pm., the S.H.O. Police Station, Karda, Bhabhoot Singh, received secret information that Hira Ram S/o. Punmaji, by caste Gaur, resident of Kotda, at present Raniwada is since long carrying on the activity of bringing Poppy Husk from Mewar and selling it at Kotda and nearby places. On the said day, he was likely to come on the Tractor attached with a water tank filled with Poppy Husk on the Sirohi Road and just little while ago, he had passed from Raniwada to Sewara, Sanchore. The said information was reduced in writing and sent to C.O. Bhinmal and one copy also sent to Superintendent of Police, Jalore through special messenger. Two independent witnesses were summoned and after completing the formalities, at about 8.30 pm. S.H.O. Bhaboot Singh proceeded in the Official Jeep along with other Police Officials. As per the said secret information, at about 8.50 pm., one tractor to which a water tank was attached, came from the side of Raniwada. Accordingly, it was stopped by the Police. Two people were sitting on the Tractor. On asking, the person sitting on the driver seat told his name Rughnath S/o. Ladu Ram Bishnoi Siyag. The name of the person sitting next to him was stated to be Sukhram S/o. Jetaji Jagu. On search, 19 bags filled with 22 kgs. of Poppy Husk in each bag and 7 bags filled with 20 kgs. Poppy Husk in each bag were recovered inside the water tank. Thus, 552 kgs. of Poppy Husk was recovered. The matter was investigated. Charge -sheet was filed and evidence was led. On the basis of same, the appellants were convicted under Sec. 8/15 of the NDPS Act and sentenced to 10 years Rigorous Imprisonment with fine of Rs. 1 lac and in default of payment of fine, the appellants were ordered to undergo another one year Rigorous Imprisonment. Aggrieved, the present appeal has been filed. The only argument raised in the present appeal is that the mandatory provisions of Section 42 of the NDPS Act have not been complied with. It was contended that as per Section 42, if an officer empowered to enter, search, seizure and arrest, has reason to believe from his personal knowledge or is given information by any person, he is required to record the same in writing and thereafter, send a copy to his immediate Officer superior within seventy two hours. In the present case, the report Exhibit -1 was duly written and also sent to Superintendent of Police. However, if such an officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence, he may enter and search such building but he is required to record the reasons for doing so and especially if the said search is between the sunrise and sunset. Such reasons recorded are also required to be sent to the Officer superior within seventy two hours. Admittedly, the search was after sunset. The reasons were recorded vide Exhibit -22 but was never sent to Superintendent of Police. As such, there was total non -compliance of Section 42 of the NDPS Act. Reliance was placed on the judgments rendered by the Hon'ble Apex Court in the cases of Sukhdev Singh vs. State of Haryana (Criminal Appeal No. 2118 of 2008) decided on 13.12.2012, Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, reported in : AIR 2000 SC 821, Karnal Singh vs. State of Haryana, reported in : 2009 Cri.LJ. 4299 to contend that sending information to the superior officer was mandatory and non -compliance of the same has caused prejudice to the accused.
(3.) LEARNED counsel for the State however, while supporting the judgment of the Court below submitted that Section 42 does not apply to the facts of the present case. The recovery was from a public place and in transit, therefore, Section 43 is applicable. As such, there was no requirement to comply with Section 42 of the NDPS Act.;