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TMI Blog1994 (8) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... tion case is that on 28-3-1994 at 9.10 P.M. Shri U.S. Sikarwar (PW-3), Station House Officer Lordganj, while on patrol received information that the appellant had kept illicit Ganja in his house for sale. On receiving this information, Shri Sikarwar accompanied by Asstt. Sub-Inspector of Police Shri N.P. Tiwari (not examined) and Head Constable Shri Krishna Kumar (PW-1) went to Niwadganj where the appellant resides. Appellant s house was searched by Shri Sikarwar in presence of independent witnesses, namely, Mahesh Prasad (PW-1) and Sudesh Jain (PW-2). Inside the room an attache containing 7 Kgs. of Ganja was found. The case was seized vide Ex. P-2. The appellant was arrested and at the police station F.I.R. (Ex.P-6) was recorded by Shri Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. To this extent these provisions are mandatory and contravention of the same would effect the prosecution case and vitiate the trial. The evidence of the said Investigating Officer clearly shows breach of the mandatory provision of Section 42 of the Act in that he failed to record the information received by him during patrol as to the presence of contraband in the house of the appellant and he further failed to record the reasons for not procuring a valid search warrant before entering into the house of appellant after sun set and before sun rise. In fact, from a perusal of the statement of Shri Sikarwar it appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment. Whenever an officer empowered to investigate under the Act is found to have deliberately violated the procedural mandates resulting in acquittal he should be made to explain his conduct and where necessary departmental enquiry be held against him. Reverting to the facts of the case a large quantity of Ganja has been recovered from the possession of the appellant but for non-observance of the safeguards provided u/s 42 of the Act, it is not possible to uphold the conviction. 6. Next it was contended that the learned trial Judge was in error to have made use of the report of the Public Analyst without putting the same to the accused in his examination u/s 313 Cr.P.C. Reliance in this behalf was placed on Sharad Birdhichand Sarda v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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