JUDGMENT 1. - This appeal has been filed by Chaina Ram, Bhagwan Lal and Onkar Lal against the judgment dated 15.3.2002 passed by the learned Special Judge NDPS Cases, Chittorgarh whereby the three appellants have been found guilty for the offence punishable under Section 8/18 of the N.D.P.S. Act. Each one has been awarded rigorous imprisonment for 20 years with a fine if Rs. 2 lacs. On account of non-payment if the said fine, additional rigorous imprisonment for two years has been ordered. 2. The prosecution story in nutshell is to the effect that on 28.12.1996 PW 6 Rajesh Nagpal Assistant Narcotics Commissioner, Neemuch received a secret information to the effect that the appellant Chaina Ram was expected to come with 20 kg Opium at Bhawaliya Bus Stand. On this information, a raid-party consisting of PW-4 Satya Veer Singh, superintendent, PW-5 Suresh Badlani, Inspector and PW-7 Virendra Pratap Singh, Sub-Inspector was constituted and allegedly on 29.12.1996 at 5.00 a.m. they reached the bus stand at Bhawaliya and found three vehicles, a jeep, a tractor and a motor-cycle standing there. The three appellants and one more were standing nearby. The Narcotics people were able to apprehend the three appellants but the fourth one was able to make his escape good. According to the prosecution story, the appellants disclosed that the fourth man, who was able to run away was Mithu Lal and was the younger brother of the appellant Onkar Lal. The jeep was bearing No. RJ-09R-3026. There was no number plate on the motor-cycle. The tractor yielded Opium weighing 16 Kg and similarly the jeep yielded Opium weighing 17.200 kg. Necessary papers were prepared and samples weighing 25 Grams each were separated and a complaint was filed against the three appellants. They were charged for the offence punishable under Section 8/18 of the N.D.P.S. Act. Subsequently Mithu Lal was also arrested and was put to trail for the offences punishable under Sections 8/18 and 8/29 of the said Act. All the four pleaded not guilty to the said charges. 3. Nine witnesses were examined by the prosecution. DW-1 Chaina Ram (appellant), DW-2 Bhopal Singh, DW3 Kamala Bal (wife of the appellant Chaina Ram), DW4 Mohan Lal and DW5 Rameshwar were examined in defence. All the four pleaded not guilty to the said charges. 3. Nine witnesses were examined by the prosecution. DW-1 Chaina Ram (appellant), DW-2 Bhopal Singh, DW3 Kamala Bal (wife of the appellant Chaina Ram), DW4 Mohan Lal and DW5 Rameshwar were examined in defence. DW-1 Chaina Ram deposed to the effect that his wife was the 'Sarpanch' and her political rival Girdhari Lal was responsible for falsely implicating him in this case and on 28.12.1996 he was lifted from his house by some plaint-clothed police people and these people threatened him that he will face dire subsequences for contesting election against the said Girdhari Lal. He further stated that Rs. 50,000/- which were lying in his house wee confiscated and his vehicle was with Sambhoo Lal and the same was also seized. DW-2 Bhopal Singh, DW-4 Mohan Lal and DW-5 Rameshwar have stated that the accused persons were lifted from the village during the pursuit and complaints (Exh.D/7) were sent to various places by them. DW-3 Kamalal Bai was stated that the appellant Chaina Ram in her husband and Bhagwan Lal is her father-in-law and both were taken away from the house at about mid-night by six persons and on the next day the Narcotics people came to her house and took away Rs. 50,000/- from her house. 4. The trial court then heard the arguments and deliver the judgment on 15.3.2002. The accused Mithu Lal was acquitted. The three appellants were found guilty and were sentenced as stated supra. The three vehicles were ordered to be confiscated Rs. 45,000/ - were ordered to be returned to Chaina Ram. Other valuables, which were recovered from Chaina Ram and Onkar Lal during the personal search were also ordered to be returned to them. Feeling aggrieved, the three appellants have come in appeal. 5. I have heard the learned counsel for the appellants as well as the learned Special Public Prosecutor for the respondent and I find that the appeal deserves to be allowed. 6. PW-4 Satya Veer Singh, PW-5 Suresh Badlani and PW-7 Virendra Pratap Singh who are Superintendent, Inspector, and Sub-Inspector of the Narcotics Department respectively have corroborated the prosecution story and have deposed that when they reached the bus stand at Bhawaliya, they found attractor, a jeep and a motor-cycle parked and four persons were seen standing nearby. 6. PW-4 Satya Veer Singh, PW-5 Suresh Badlani and PW-7 Virendra Pratap Singh who are Superintendent, Inspector, and Sub-Inspector of the Narcotics Department respectively have corroborated the prosecution story and have deposed that when they reached the bus stand at Bhawaliya, they found attractor, a jeep and a motor-cycle parked and four persons were seen standing nearby. After seeing the Narcotics people, all the four took to heir heels and three of them were arrested and one was able to run away. In this connection, it is pertinent to note that apart from the allegation that the four persons were standing near the three vehicles, there is no other circumstance to suggest that the appellants were in conscious possession of the material, which was ultimately recovered from the tractor and the jeep. Admittedly nothing was recovered from the motor-cycle. Presence of persons on the bus stand cannot lead to a conclusion that they were in conscious possession of the contraband which was lying in the two vehicles unless some other circumstance connects them with the crime. The learned Special Public Prosecutor has argued that the statements of the three arrested persons Exh.P/14, P/15 and P/16 are self-speaking and the three appellants have pleaded guilty to the crime therein. I find that the accused persons cannot be found guilty on the basis of Exh. P/14, P/15 and P/16. The officer who recorded the statements has taken care to not to record the time on Exh. P/14, P/15 and P/16. The arrest memos Exh. P/14, P/15 and P/16. The officer who recorded the statements has taken care to not to record the time on Exh.P/14, P/15 and P/16. The arrest memos Exh. P/14, P/15 and P/16 contain the time of arrest as 10.00 a.m. However, the recovery memo (Exh.P/3) shows that the three appellants were made to sign the recovery memo (Exh.P/3) as accused persons, Exh.P/3 as per the prosecution story was prepared at 6.00 a.m. the accused persons signed the memo in the capacity of accused persons. Hence, the said statements Exh. P/14, P/15 and P/16 are of no consequence to the prosecution. 7. Apart from Satya Veer Singh, Suresh Badlani and Virendra Pratap Singh, no independent witness has corroborated the prosecution story. Hence, the said statements Exh. P/14, P/15 and P/16 are of no consequence to the prosecution. 7. Apart from Satya Veer Singh, Suresh Badlani and Virendra Pratap Singh, no independent witness has corroborated the prosecution story. PW-1 Gauri Lal and PW-2 Mohan Lal, who were examined as independent 'Motbirs' have both denied the prosecution story against the appellants in respect of the alleged recovery and both have been declared hostile witnesses. In a serious case like this, in which a sentence of 20 years rigorous imprisonment along with a fine of Rs. 2 lacs has been awarded, conviction of a person without slightest independent corroboration cannot be termed as safe. 8. Moreover, it is not in dispute that the search of the vehicles was carried out at 5.00 a.m. during the night intervening 28/29.12.1986. Section 42 of the N.D.P.S. Act makes it obligatory, that when a search between sunset and sunrise is planned, a search warrant shall have to be obtained and if the Officer concerned has reason to believe that such a search warrant cannot be obtained without affording opportunity for the disappearance of contraband, the Officer has to record the reasons to such a belief and thereafter the search can be carried out. In the instant case, no such thing has been done and non-compliance of the mandatory provisions has vitiated the whole trial. In this connection a judgment of the Hon'ble Apex Court reported in 2003 SCC (Cri) 1194 (Chunna @ Mehtab v. State of M.P. ) is being re-produced in its entirety: The case of the prosecution was that at 3.00 a.m. a police party saw Opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the provision of Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorisation was obtained nor were the ground for possible plea that if opportunity for obtaining such warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been a non-compliance with the provisions of the proviso to Section 42 and, therefore, the trial stood vitiated. The appeals are, accordingly, allowed. 9. Needless to say, that in the light of the above mentioned ratio laid down by the Hon'ble Apex Court the appeal deserves to be allowed. 10. Consequently, the appeal is allowed. The judgment of the learned trial court dated 15.3.2002 is set aside. The three appellants are acquitted of the charges. They shall be released forthwith unless they are needed in connection with any other case. The learned trial court shall be at liberty to deal with the three vehicles as per the Scheme laid down in Section 60 of the N.D.P.S. Act after issuing a show-cause notice to the respective owners and after giving them an opportunity to explain the things vis-a-vis the three vehicles. *******