Judgment : N. ARUMUGHAM, J. ( 1 ) THE Intelligence Officer, Narcotics Control Bureau, South Zone, Madras has preferred this petition under 5. 439 read with S. 482 of the Code of Criminal Procedure for cancellation of the order passed by the learned Special Judge designated under the Narcotic Drugs and Psychotropic Substances Act (hereinafter called NDPS Act) Madras and Chengalpattu made in Criminal M. P. No. 452 of 1993 dated 10. 11. 1993. ( 2 ) THE brief facts which lead to the present case as could be seen from the records are stated as follows: - On 16. 10. 1993 at about 23 Hours based on intelligence a person by name. Shanmugham, the third accused in this case was intercepted by the staff of the petitioner at Pillaiyar Koil Street, Palarai Vinayagapuram Kulathoor, Madras searched his belonging in the presence of two witnesses and on examination, a cream colour zipper bag in his possession was identified, which contains brown colour powder substance, but however with the help of the test kit, it was tested which showed the presence of heroin, a narcotic drug under the Act with the weighment of 970 grams approximately. Accordingly, it was seized with its packing materials as detailed in the mahazar followed by two representative sample were drawn for chemical analysis. The above search was concluded at about 02. 00 hours on 17. 10. 1993. On interrogation, the said Shanmugham gave all of his identities and details and as a follow-up action, his residence was also searched at the early hours of the same day, but nothing incriminating was seized. ( 3 ) AS a part of evidence gathered and surveillance mounted on the same day, a person by name 5k. Anand the fourth accused in this case was found leaving the Central Station on arrival from New Delhi and the search made upon him by the petitioner resulted in the seizure of Indian currency to the extent of Rs. 29,000/- and some documents which were recovered under the cover of mahazar. Similarly, one B. K. Ashokan the second accused was also searched as well as room No. 206 of Sri Vishweshwara Bhavanam, 76, Millers Road, Madras and consequently, certain incriminating documents were seized under the cover of mahazar. ( 4 ) ON 17. 10. 29,000/- and some documents which were recovered under the cover of mahazar. Similarly, one B. K. Ashokan the second accused was also searched as well as room No. 206 of Sri Vishweshwara Bhavanam, 76, Millers Road, Madras and consequently, certain incriminating documents were seized under the cover of mahazar. ( 4 ) ON 17. 10. 1993, the premises of the respondent herein, who is the first accused in the case was searched by the petitioner between 13-15 hours and 14. 30 hours in the presence of independent witnesses and the respondent and as result of which, incriminating documents and materials were seized and those of the materials and the person apprehended accused 1 to 4 were brought to the office of the petitioner, interrogated separately and recorded their voluntarily confession statements. During the course of which all the accused have admitted the complicity in their dealing with the contraband and transporting the contraband and narcotic substance under the relevant Act. Therefore, it was the case of the prosecution that all the four accused including, the respondent have committed the offence under Ss. 8,23,28 and 29 of the N. D. P. S. Act and as such, they were arrested and remanded to judicial custody on 17. 10. 1993. But, however, the custody of Shanmugham was taken by the staff of the petitioner from the court for the recovery of 25 Kgs. of opium in a different place under a cover of mahazar but after that he was also remanded to judicial custody on 21. 10. 1993. ( 5 ) IN this background, the respondent herein moved a bail and for which a detailed counter objection was filed on behalf of the petitioner. But, however, on hearing the arguments of the respective parties herein and the perusal of the records, the learned, Special Judge has granted bail by, passing the impugned order on 10. 10. 1993, which is being challenged herein. ( 6 ) MR. P. Rajamanickam, the learned standing counsel for the petitioner has mainly raised the following contentions, challenging the impugned order of bail granted by the learned Special Judge: 1. 10. 1993, which is being challenged herein. ( 6 ) MR. P. Rajamanickam, the learned standing counsel for the petitioner has mainly raised the following contentions, challenging the impugned order of bail granted by the learned Special Judge: 1. The finding of the learned Special Judge, viz, that in arresting the present respondent herein under the provisions of S. 42 (2) of the N. D. P. S. Act, which is mandatory in nature has not been complied at all by the petitioner is not correct and the observation of the learned Judge is to-tally wrong. For the reason that 5. 42 (2) of the N. D. P. S. Act itself is not applicable to the case in hand. But however, 5. 43 alone attracts the present case. The observation of the learned Special Judge that 5. 57 of the N. D. P. S. Act has also not been complied with is also not factually correct and that, therefore, the learned counsel contended that the learned Judge ought not to have granted bail for the respondent herein. The learned Special Judge erred seriously while observing that nothing was recovered or seized from the custody from the house of the respondent herein and as well as practically no incriminating portion of evidence is available against the respondent so as to culminate the criminal liability to the respondent herein. The learned Special Judge erred seriously while observing that nothing was recovered or seized from the custody from the house of the respondent herein and as well as practically no incriminating portion of evidence is available against the respondent so as to culminate the criminal liability to the respondent herein. Lastly the learned counsel would submit that the presence of the Superintendent of the Narcotic Wing during the seizure mahazar may not amount to his position into the category of an Investigating Officer and that, therefore, sending the special report to him cannot be deemed to violate S. 57 of the N. D. P. S. Act. Pointing out the above said contentions, the learned Standing Counsel for the petitioner tried to persuade me to interfere with the impugned order passed by the learned Special Judge and to cancel the same. ( 7 ) PER contra, Mr. Pointing out the above said contentions, the learned Standing Counsel for the petitioner tried to persuade me to interfere with the impugned order passed by the learned Special Judge and to cancel the same. ( 7 ) PER contra, Mr. Hameed Ismail, appearing for the respondent would controvert every one of the contentions raised on behalf of the petitioner, but however, supports the finding and conclusions arrived at by the learned Special Judge in passing the order of bail to the petitioner. In other words, the learned counsel makes every strenuous efforts to justify the impugned order passed by the learned special judge. ( 8 ) IN the context of the above rival contentions, the only point that arises for consideration is: Whether the impugned order passed by the learned Special Judge is vitiated with any impropriety or illegality requiring the intervention of this Court? ( 9 ) THE POINT: - It is seen that the house of the respondent herein was searched by the petitioner and his staff on the relevant time and day of occurrence and some in Criminating documents were seized and recovered under a cover of mahazar in the presence of two witnesses and the mahazar was prepared by the Investigating Officer Mr. Mohan in his own hand writing and attested by two independent witnesses as well as the Superintendent of Narcotic Control Bureau by name Mr. Chandrasekaran. This fact is not in dispute between the parties. A casual perusal of this mahazar clinches the fact that the place of search was the house of the respondent situate in No. 12, First Main Road, Ajeez Nagar, Kodambakkam, Madras -24 between 13. 15 hours and 14. 30 hours on 17. 10. 1993. The entire portion of the mahazar admittedly was prepared by the investigating Officer Mr. A casual perusal of this mahazar clinches the fact that the place of search was the house of the respondent situate in No. 12, First Main Road, Ajeez Nagar, Kodambakkam, Madras -24 between 13. 15 hours and 14. 30 hours on 17. 10. 1993. The entire portion of the mahazar admittedly was prepared by the investigating Officer Mr. Mohan was attested by the Superintendent of the petitioner along with other two independent witnesses and extracted a relevant portion of which has been as below; assumes every significance in this case, and for the said reason, it has been extracted as follows: (Matter in Other Language) In the subsequent portion of this paragraph it was referred in the said Mahazar that the Superintendent and the Investigation Officer along with Staff actually participated in the search of the house has been specifically referred to perhaps this was the reason mainly for the Superintendent of the petitioner to attest the said mahazar and in whose presence the mahazar was prepared by the Investigating Officer and accordingly and evidently he has subscribed his signature as one of the attesters. The above fact has not been controverted by the Learned Standing Counsel for the petitioner. Thus a casual perusal of the above said mahazar and the factual aspects submitted on behalf of the petitioner clinches the fact that during the operation of the search of the house of respondent, search and seizure under mahazar till his arrest. The Superintendent of the petitioner was present all through and as such, there is no difficulty for me in holding that he has conducted the investigation with all the assistance of his subordinates including the Investigating Officer or otherwise every search operations and investigation were conducted at his actual command and supervision and that therefore, Mr. Chandrasekaran, the Superintendent of the petitioner is deemed to be the Investigating Officer in all purview in the eye of law. ( 10 ) IF this is the position, if one would go through the very contents of mahazar prepared in this case, it is manifestly clear that the search of the house of the respondent was conduced by the petitioner and his staff only on prior intimation and intelligence whatever terms used by the learned Standing Counsel for the petitioner. ( 10 ) IF this is the position, if one would go through the very contents of mahazar prepared in this case, it is manifestly clear that the search of the house of the respondent was conduced by the petitioner and his staff only on prior intimation and intelligence whatever terms used by the learned Standing Counsel for the petitioner. If that is so, in this context, we may have to see the factual aspects above referred would attract S. 42 (20 or 43 of the N. D. P. S Act. If that is so, in this context, we may have to see the factual aspects above referred would attract S. 42 (20 or 43 of the N. D. P. S Act. S. 42 of the N. D. P. S Act reads like this: (42) Power of entry, search seizure and arrest without warrant or authorisation:-1) Any such officer (being an officer superior in rank to a peon, sepoy constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government, or of the Border Security Force 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 special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drugs, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building conveyance or enclosed place, may between sunrise and sunset:a) enter into and search any such building, conveyance or place: b) in case of resistance, break open, any door and remove any obstacle to such entry; c) seize such drug or substance and all materials used in the manufacture there of and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and d) detain and search, and if he thinks proper, arrest any person, whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained with out affording opponents for the concealment of evidence or facility for the escape of an offender, he may enter and search such buildings, 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 sub-S (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Though the above section of law clearly man dates the investigating agency to record such information, which has been received in advance prior to the commencement of their actual operations to record it in writing, which is clearly mandatory and in the instant case, this has not been and specifically not followed by the petitioner as was rightly held by the learned special Judge. Therefore, I am inclined to hold that the learned special Judge was perfectly correct in observing that the mandatory directions in-built in 5. 42 of the N. D. P. S. Act has not been followed by the petitioner the investigating agency in this case. In this regard, I am totally unable to subscribe my view that the contentions advanced by Mr. Rajamanickam, the learned Standing Counsel for the petitioner. ( 11 ) COMING to the second contention that the non-reporting of a special report about the search conducted in the house of the Respondent to the immediate superior officer in this case, viz, the Asst Director or any other officer by the Superintendent, Narcotic Control Bureau clearly amounts to the non-compliance of 5. 57 of the N. D. P. S. Act, which runs as follows: The report of arrest and seizure: Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. The minimum understanding of this section of law clearly postulate the fact that a person, who makes any arrest and seizure shall be deemed to be the investigating officer, is a person, who was, present throughout the search conducted and the houses were searched, seizures were made and things were recovered by preparing the Mahazars and attesting. The word any person employed in this section clearly denotes the superior officer on whose commands and supervision, the whole search seizure and other operations have gone is deemed to be the person, which is in the instant case the Superintendent of Narcotic Drugs Mr. Chandrasekaran. The word any person employed in this section clearly denotes the superior officer on whose commands and supervision, the whole search seizure and other operations have gone is deemed to be the person, which is in the instant case the Superintendent of Narcotic Drugs Mr. Chandrasekaran. If that is so, since he has attested the same and as evident from the operative portion of the Mahazar, he was throughout in whose command and supervision the entire searching operation was being done and that, therefore, he is deemed to be the investigating officer in this case. ( 12 ) IN this context if accept the contention of the learned Standing Counsel for the petitioner, one would have distinguished the official capacity and designation of the Investigating officer Mr. Mohan in this case and to be different from that of the official capacity and designation of the Superintendent of the Petitioner Mr. Chandrasekaran and whose power of jurisdiction and official capacity cannot be put into two separate water tight compartments for the reason that the investigating officer Mr. Mohan is subordinate to the superintendent of the petitioner Mr. Chandrasekaran. Therefore, the despatch of the special report with regard to the searching operations in this case to the Superintendent of the petitioner, a person who attested the mahazar itself and who was present throughout the searching operations and on whose command and supervision everything was done, would certainly in my firm and considered view amounts to a total non compliance of the mandatory direction of 5. 57 of the N. D. P. S. Act. ( 13 ) THE rationale lies behind 5. 57 is manifest for the reason of the fundamental right enshrined in Article 21 of the Constitution to a citizen and this right is an extremely valuable one which the Legislature has for specific reason deliberately incorporated under 5. 5, of the Act itself. Making of the report of the arrest and seizure under the Act by the person who did it to the immediate superior officer within 48 hours is a solemn act to be called out dutifully by every officer who are designated for that specific purpose and that has to be remembered always by every investigating agency and avoiding the same for any reason cannot be considered in the eye of law as a tenable one. It is clear that the officer making any arrest or seizure under the Act makes the full report of the same to his immediate superior within 48 hours would actually mean that there would not be any exaggeration or connection thereafter and which was not at all possible in the case of prosecution. Perhaps for this important and valuable safeguard to save the innocent person from being subjected to unnecessary harassment, the Legislature incorporated such wordings and it provided the above section of law in such a manner. In short, this provision has been made out with a view to have a check on the Investigating Officer and that on receipt of such Special Report, it is deemed that Superior in the Department is expected to keep check on the Investigating Officer and that therefore, the immediate Superior Officer means as per the inductment of the Legislature, the official superior of the Department only. Admittedly, in the instant case, no full or half report has been sent to the immediate superior officer of the petitioners department. Unfortunately, the officer, who was present from the very inception till the mahazar was prepared and the respondent was arrested, has received the special report according to the petitioner. Therefore, under such contact and circumstances, I find no difficulty at all in holding that the investigating agency, viz. , the petitioner herein has not complied the mandatory procedure and in the said context there is a total non compliance of the mandatory provision of law. In this regard, I feel the observation of the learned Special Judge is quite correct and proper under the circumstances, for the above said two grounds alone as decided by the Bench of this court In Re Mehanathan1 the respondent is entitled to be enlarged on bail and that the learned Special Judge has considered the above two points quite properly and legally. ( 14 ) THIS is one of the cases where the Investigating machinery seems to have been mindless in following the legal mandate while booking the culprit. But however, the enforcing authority cannot rest content with that kind of explanation to. controvert the provisions of the statute book. ( 14 ) THIS is one of the cases where the Investigating machinery seems to have been mindless in following the legal mandate while booking the culprit. But however, the enforcing authority cannot rest content with that kind of explanation to. controvert the provisions of the statute book. But, on the other hand, they should enforce it by every provisions of law so meaningfully and usefully and as such, they could not be unaware of the fullest implications of law, but work for their, total adherence then only the crime escape facile can be avoided in toto. ( 15 ) WITH regard to the other observations made by the learned Special Judge, regarding the non- availability of the evidentiary portions against the respondent herein I feel that the observation of the learned Special Judge is not correct. With every respect, I would observe that they very statements given voluntarily by the respondent and other accused clearly are within the teeth of S. 67 of the N. D. P. S. Act and that therefore, it dearly forms basis for the necessary action prompted and taken by the petitioner. However, this is a matter purely to be considered during the trial. But in so far as the scope of the present case is concerned, it is enough for me at this stage to hold that the passing of the impugned order by the learned Special Judge in granting the bail to the petitioner in compliance with the conditions adumbrated in S. 37 of the N. D. P. S. Act does not vitiate with any illegality or impropriety. But, on the other hand, it is quite proper and legal and it can be sustained. While giving the above finding, I would make it clear that none of m y observations would take effect during the trial of the case against any of the accused. ( 16 ) THUS, while considering the impugned order on its every base in conjunction with the provisions of law and the case law decided in the context of the rival contentions argued, I feel that I am not able to interfere with the impugned order passed by the learned Special judge, and for the reasons aforesaid, I am satisfied to hold that the learned Special Judge is perfectly correct in granting the bail to the respondent with the necessary conditions. Hence, there are no merits in the case. Hence, there are no merits in the case. Accordingly, it is rejected. ( 17 ) IN the result, the petition fails and accordingly, it stands dismissed. T order of the learned Special Judge, passed in Cr1. M. P. No. 452 of 1993 dated 10. 11. 1993 granting bail to the respondent with all conditions is hereby maintained.