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TMI Blog2014 (3) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... in seventy-two hours - since in this case, there is total non-compliance of Section 42 of the NDPS Act, the High Court has rightly set aside the conviction of the respondent - appeal dismissed. - CRIMINAL APPEAL NO.592 OF 2005 - - - Dated:- 4-3-2014 - HON BLE MRS. JUSTICE RANJANA PRAKASH DESAI AND HON BLE MR. JUSTICE MADAN B. LOKUR For the Appellant : Mr. S.S. Shamshery, AAG, Mr. Bharat Sood, Adv., Mr. Sandeep Singh, Adv., Mr. Harshwardhan Singh Rathore, Adv., Ms. Ruchi Kohli,Adv. For the Respondent : Mr. D.K. Thakur, Adv., Mr. Devendra Jha, Adv., Mr. Debasis Misra,Adv. O R D E R 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent 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 spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (1) orrecords grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 5. In view of conflicting opinions regarding scope and applicabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly recorded a finding of fact that the bag was taken out from the well after sunset and prior to sunrise. We have no reason to disbelieve this finding. 7. According to the prosecution, the respondent threw the bag in the well. The suspected contraband was, therefore, tried to be concealed in a well. The possibility of its destruction was imminent. In fact, the evidence on record indicates that water entered in the bag and got mixed up with the opium. The opium was liquefied. This was indeed, an emergent situation. The well had to be searched with the help of an independent witness, which was done. In such an emergent situation, if the officer had reason to believe that a search warrant or authorization cannot be obtained without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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