Judgment:
C.R. Pal, J.
1. The appellants assail the order of conviction and sentence passed in G. R. Case No. 315 of 1993 by the Sessions Judge, Kalahandi-Muspada, Bhawanipatna convicting the appellant under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') and sentencing each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- each and in default to undergo rigorous imprisonment for a further period of one year.
2. The case against the appellants is that on 12-8-1993 at about 5.00 A.M. while the S. I. of Police, Junagarh Police Station (P.W.9) along with other staff were patrolling near village Jaring, he found the appellants proceedings towards Bhawanipatna on a Hero Honda Motor cycle bearing registration No. MCR 9532. He signalled the appellants to stop, but ignoring the signals they sped-away. So the S. I. with other police staff chased them on a jeep and managed to stop them near Sagada close to Dhaba. There was a bag on the motor cycle and on opening the bag the S. I. found that it contained Ganja. The appellants disclosed their names and addresses being asked by the S. I., but they failed to produce any licence for carrying the contraband articles. As no weighing scale was with the patrolling party and no independent witness was also available nearby, the appellants along with the motor cycle and the bag were taken to Junagarh Police Station and produced before the O.I.C. to whom the S. I., submitted a written report, Ext. 2. The O.I.C. on receiving the report registered a case, seized the motor cycle and took the weight of the Ganja which on weighment came to 15 Kgs. and seized the same under seizure list, Ext. 1/2. He collected samples of Ganja and separately packed it in two packets each containing 50 grams and sealed the same in presence of the V.A.S. Junagarh. Thereafter, he arrested the appellants and forwarded them to Court. Subsequently, the samples collected were sent to the R.F.S.L., Berhampur and after receiving the report of the Chemical Examiner which revealled that the samples sent to the Chemical Examiner were Ganja, submitted charge-sheet against the appellants who stood charged for the offence under Section 20(b)(i) of the Act for possessing Ganja. Their case was a complete denial of the allegations levelled against them. However, the trial Court relying on the evidence adduced by the witnesses and the documents exhibited by the prosecution, convicted and sentenced the appellants as mentioned above.
3. The learned counsel appearing for the appellants assails the order of conviction and sentence mainly on the grounds of non-compliance of the requirements of the proviso to Section 42(1) and for insufficient evidence to connect the appellants with the alleged offence. The learned Addl. Standing Counsel, however, made his sub-mission in support of the order of conviction and sentence. According to the Addl. Standing Counsel, the plea of non-compliance of Section 42(1) of the Act having not been raised during trial, the appellants cannot raise the same for the first time in appeal.
4. Before coming to the other contention, the objection raised by the learned Addl. Standing Counsel relating to the plea of the appellants about the non-compliance of the proviso to Section 42(1) of the Act, it may suffice to mention that the plea relating to non-compliance of the proviso which is mandatory in nature being a legal plea can be raised for the first time in appeal. A single Bench of this Court in Bijay Kumar Subudhi v. State reported in (1995) 8 OCR 315 has also taken a similar view on the question. The above view also gels support from the principle laid down by the apex Court in Saiyed Md. Saiyed Umar Saiyed v. State of Gujarat, (1995) 9 OCR (SC) 168 : (1995 Cri LJ 2662) wherein the apex Court has held that the provision of Section 50 of the Act being mandatory is sacrosanct and a plea relating to the non-compliance of the same can be raised for the first time in appeal. Therefore, the contention raised by the learned Addl. Standing Counsel must fail.
5. Coming to the next contention of the learned counsel that there was non-compliance of requirements of the proviso to Section 42(1) of the Act, it is noticed from the evidence of P.W. 9, the S. 1. of Police, who detected the case on 12-8-1993 at about 5.00 A. M. that while he was performing patrol along with A.S.I. S. H. Reddy, A.S.I. D. P. Pradhan, Head Constable Trinath Narida, constable Nityananda Patnaik, constable A. C. Panda, constable B. P. Sarangi they found the appellants proceeding on a motor cycle towards Bhawanipalna. After detaining the appellants and searching the luggage of the vehicle he took the appellants and the motorcycle along with the constraband article to the police station and submitted a written report, Ext. 2. The written report, Ext. 2 also disclosed that the detection was made at 5.00 A. M. The police constable, namely, Dandapani Pradhan, the P.W.3, has also deposed that the detection was made at about 5.00 A.M. P.Ws. 4 and 5, the other two constables and P.W.6, the A.S.I, of Police, who were also the members of the said petrolling party have deposed to the same effect. Thus, it is clear from the evidence of the witnesses that they detained the vehicle at 5.00 A.M. and on search found that the bag tied to the motor cycle contained Ganja. Under Section 42(1), the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc, he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of believe. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would effect the prosecution case and vitiate the trial. Here in the instant case, though admittedly the search of the vehicle was made at 5.00 A. M. without any search warrant, the P.W. 9 had not recorded the grounds of his belief as envisaged under the proviso to Section 42(1). Of course, there is nothing in the evidence of the witnesses to show in clear terms that the search was effected after sunset and before sunrise. But from the time of search as deposed by the witnesses, it is clear that the search was made before sunrise. In this context, a reference to the almanac shows that on 12-8-1991 i.e. the date of the alleged search sun rose after 5 hours 37 minutes and 6 seconds. It is a well settled principle that the proviso to Section 42(1) which requires recording of reasons of belief before effecting the search between sunset and sunrise is mandatory and non-compliance thereof vitiates the trial. (See State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702). Therefore, the appellants arc entitled to an acquittal.
6. Now coming to the other contention about the lack of reliable evidence to connect the appellants with the alleged occurrence, it is noticed that though the independent witnesses; such as the P.Ws. 1 and 2 have not supported the prosecution case about the detection, all the other witnesses have corroborated each other about the detection, search, seizure and arrest of the appellants. The appellants and the seized articles were also produced before the O.I.C. who seized the articles and collecting sample therefrom in two separate packets sealed the packets with his seal and forwarded the articles later on to the Court. He also moved the Court to forward the sample for chemical examination and accordingly on his prayer, the sample packets were sent for chemical examination with a forwarding letter of the Court of S.D.J.M., Dharamgarh. The seized articles were sealed in presence of independent witnesses is evident from the evidence of P.W.8, the V.A.S. who witnessed the seizure, collection of sample and sealing of the contraband articles. Nothing has been brought out from the witnesses to show that they arc in any way inimical towards the appellants. Therefore, only because of the fact that other independent witnesses have not supported the prosecution case, the evidence of official witnesses including P.W.8 who can be treated as an independent witness cannot be discarded. There is no reason to suspect the evidence adduced by an official witness only because of the fact that he is an officer of the department. His evidence can very well be accepted to maintain a conviction, if the some is otherwise found reliable. Though the evidence adduced by the prosecution witnesses disclose that the appellants were detained and on search of their motor cycle the alleged Ganja was recovered and seized, their conviction and sentence cannot be sustained for the reason assigned in the earlier paragraph.
7. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellants is set aside. They are acquitted of the charge under Section 20(b)(i) of the N.D.P.S. Act. The appellants be set at liberty fortwith, if their detention is no longer required in connection with any other case.