JUDGMENT 1. - This appeal is directed against the judgment dated 11-10-93, passed by the Sessions Judge, Churu, by which the learned Sessions Judge convicted accused-appellant Darshan Singh for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced him to undergo ten years' rigorous imprisonment and a line of Rs.1,00,000/- and in default of payment of fine further to undergo 11/2 months rigorous imprisonment. 2. PW 4 Bhanwar Lal, Station House Officer, Police Station Raigarh on 14-4-93, received a secret information through a Mukhbir that two persons are illegally bringing poppy husk from the side of Radwa Road. He recorded the information under Section 42 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short,'the N.D.P.S.Act) in the Roznamcha vide Ex.P.5 and along with the police party, proceeded towards the place of destination. In the way, he took two Motbirs, viz.. Bhani Ram and Nasir Khan after service of notice Ex. P.1 on them. He reached at the destination at about 8.00/8.30 a.m. along with the Motbirs. The raiding party saw two persons carrying one small gunny-bag each. On seeing the policy party, they tried to run-away but they were caught-hold by the patrolling party. After their detention and on being enquired, they disclosed their identity as Darshan Singh and Billu. Thereafter the appellant was asked whether he wanted to be got searched before a gazetted officer or a Magistrate and he showed his desire to be got searched by the Station House Officer. The memo Ex.P.6 regarding the option, given by the appellant, was prepared. Thereafter the search of the bag, carried by the appellant, was taken, which contained seven kilograms of poppy husk. Two samples of 50 grams each were taken and the same, along with the remaining poppy husk contained in the bag, were sealed and the recovery memo Ex. P.2 was prepared. The appellant was not carrying any licence for the retention of the poppy husk and, therefore, he was arrested. The samples as well as the remaining poppy husk were deposited in the Malkhana of Police Station, Rajgarh, and the information under Section 57 of the Act was forwarded to the higher officer. The investigation was, thereafter, handed over to PW 6 Hukma Flam the Senior Station House Officer posted at Police Station, Rajgarh. The samples as well as the remaining poppy husk were deposited in the Malkhana of Police Station, Rajgarh, and the information under Section 57 of the Act was forwarded to the higher officer. The investigation was, thereafter, handed over to PW 6 Hukma Flam the Senior Station House Officer posted at Police Station, Rajgarh. The samples were sent for F.S.L. examination to the State Forensic Science Laboratory, Jaipur, which, on chemical examination, was found to be that of opium poppy. After completion of the investigation, challan was filed against the accused. The prosecution, in support of its case, examined six witnesses. The accused-appellant did not examine any witness in defence. The learned Sessions Judge, after trial, convicted the accused-appellant for the offence under Section 8/15 of the Act and sentenced him as stated at the very out set. It is against this judgment, convicting and sentencing the appellant that he has preferred this appeal. 3. It is contended by the learned counsel for the appellant that the compliance of Section 42 of the Act has not been made in the present case which vitiates the trial and the appellant, therefore, deserves to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned Sessions Judge convicting and sentencing the appellant for the offence under Section 8/15 of the Act. 4. I have considered the submissions made by the learned counsel for the parties. 5. The Narcotic Drugs and Psychotropic Substances Act, 1985, in order to avoid harm to the innocent persons and to avoid abuse or misuse of the provisions of the Act by the Officer, provides certain safe guards, which have to be observed strictly looking to the provisions made in the Act for control and regulation of the operation relating to the Act.The Officer empowered under the Act has to act in a bona fide manner and strictly in accordance with the provisions of the Act.Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorisation. The Office authorised under this Section must be superior to the rank of a peon, Sepoy or 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 of the Central Government, or any such officer (being an officer superior in rank to a peon, Sepoy or Constable of Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by the general or special order of the State Government. The person, so empowered or authorised by 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 drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between the Sun-rise and Sun-set. He can 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. Subsection (2) of Section 42 gives a mandate to the authorised officer, to take down any information in writing under sub-section (1) or record grounds for his belief under the proviso thereto, and to forthwith send a copy thereof to his immediate official superior. Sub-section (1) of Section 42 have two parts. He can detain an accused, make his search, seize the article, arrest the accused either on receiving any information, which has to be taken down in writing by him or he has reason to believe from personal knowledge that any offence with respect to narcotic drug or psychotropic substance punishable under Chapter IV, has been committed. When he receives the information from some person then he is required to take down that information in writing while in the case of his personal knowledge or belief that the offence under the Act has been committed, he has to record the ground of his belief because under the proviso appended to subsection (1) of Section 42, he is required to do so. The recording of the ground of belief is necessary only in the case when the authorised officer has reason to believe from his personal knowledge that the offence under the Act has been committed, while in the case of an information given by any other person, the only requirement is that he should take down the same in writing. It pas been held by the Supreme Court in the case of: the State of Punjab v. Balbir Singh 1994(2) JT (SC) 108) that "under Section 42 (1) the empowered officer, if he has information given by any person, that should necessarily be taken down in writing.But if he has reason to believe from the personal knowledge that the offence under Chapter IV has been committed or materials which may furnish the commission of such offence are concealed in any manner, he may carry out the arrest, search without warrant between Sunrise and Sun-set and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1), if such officer has to carry-out such search between Sun-set and Sun-rise, he must record the ground of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial." 6. Sub-section (1) of Section 42, therefore, gives a mandate to the authorised officer, before proceeding to make search, to take down the information in writing or record his reasons and if these mandatory provisions are not complied with then the trial stands vitiated. This safe-guard has been provided taking into consideration the deterrent sentence contemplated under the Act and with a view that the innocent persons are not unduly harassed and they may not be falsely implicated later on by the Investigating Officer and, therefore, the provision has been made that it is only the authorised officer who can proceed with the search and seizure and that too only after taking down the information in writing or recording his reasons of belief. 7. Whether the compliance of this subsection has been made in the present case or not, that requires consideration of the evidence produced by the prosecution. There is an entry Ex.P.5 in the Roznamcha, which was made by PW 4 Bhanwar Lal on 14-4-93 at 8.00 a.m.before proceeding to make the search etc. 7. Whether the compliance of this subsection has been made in the present case or not, that requires consideration of the evidence produced by the prosecution. There is an entry Ex.P.5 in the Roznamcha, which was made by PW 4 Bhanwar Lal on 14-4-93 at 8.00 a.m.before proceeding to make the search etc. PW 4 Bhanwar Lal, in his statement before the Court, has specifically stated that before proceeding to the destination, he recorded the information received from the Mukhbir in the Roznamcha (Ex.P.5) and he, also, recorded the reasons of his belief. The compliance of Section 42 (1) of the Act has, therefore, been properly made. 8. This leads us to the question: whether the compliance of sub section (2) of Section 42 of the Act has been made or not, by the investigating officer. Sub-section (2) of Section 42 gives a mandate to the authorised officer to forthwith send a copy of the information or the ground of his belief of his immediate officer superior. Admittedly, the compliance of this sub-section (2) of Section 42 of the Act has not been made PW 4 Bhanwar Lal, in his cross-examination, has stated that oral information was received from the Mukhbir and he did not send a copy of Ex.P.5 to his higher officer. There is, therefore, a complete violation of the provisions of sub-section (2) of Section 42 of the N.D.P.S.Act. What prevented PW 4 Bhanwar Lal in sending a copy of the report or the grounds of the belief to his immediately officer superior, has not been shown by him. No proper explanation is coming from the statement of PW 4 Bhanwar Lal for non-compliance of the provisions of subsection (2) of Section 42 of the Act. He totally ignored these provisions. The provisions of sub-section (2) of Section 42 of the Act which casts of duly upon the authorised officer to send a copy of the report or the grounds of his belief to his immediately higher officer, is mandatory in nature and non-compliance of which is fatal to the prosecution case. He totally ignored these provisions. The provisions of sub-section (2) of Section 42 of the Act which casts of duly upon the authorised officer to send a copy of the report or the grounds of his belief to his immediately higher officer, is mandatory in nature and non-compliance of which is fatal to the prosecution case. It has been held by the Supreme Court in the case of : the State of Punjab v. Balbir Singh (supra) that "under Section 42 (2) such empowered officer, who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate officer superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent it is mandatory. But if there is a delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." PW 4 Bhanwar Lal, consequent upon receipt of the information from the Mukhbir, though entered the same in the Roznamcha (EX.P.5) and recorded the grounds of his belief, also, but he did not send the copy of the information received by him to his immediately superior officer and totally ignored the provisions of sub-section (2) of Section 42 and no proper explanation is available on record as to what prevented him in sending the report to the immediately superior officer. This non-compliance of sub-section (2) of Section 42 of the Act is, therefore, fatal to the prosecution case and vitiates the whole trial and the appellant deserves to be acquitted. 9. In the result, the appeal, filed by accused-appellant Darshan Singh, is allowed. The judgment dated 11 -10-93, passed by the learned Sessions Judge, Churu, convicting and sentencing the appellant, is, therefore, set aside and the appellant is acquitted of the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He is in jail. He may be released forthwith if not required in any other case.Appeal allowed. *******