Judgment GOPAL LAL GUPTA, J. ( 1 ) KINGSLEY and Casmir, Nigerian Nationals stand convicted under Section 8/21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) and sentenced to undergo 10 years R. I. with fine of Rs. 1 lac by the learned Special Judge, Udaipur (Sessions Judge, Udaipur) by his judgment dated 1. 3. 1994. ( 2 ) THE prosecution case is this. On 1. 1. 1993 P. W. 2 Prem Raj Rathore, Sub inspector, Central Narcotics Bureau, Udaipur received a secret information that Ishakha Sb Amosa, Nigerian National living in Sector No. 4 Hiranmagri and Kingsley and Casmir, Nigerian Nationals residing in Manwa Kheda had received heroin. On this information, he proceeded to Sector No. 4 Hiranmagri alongwith other members of the Bureau and Motbirs Sh. Girdharilal (P. W. 5) and She S. N. Nayar (P. W. 6 ). The house of Ishakha was searched but nothing objectionable article was recovered. Thereafter, the party led by Shri Rathore proceeded to Manwa Kheda and reached the house of Pradeep Kumar. He called two persons, namely, Kingsley and Casmir came out. Shri Rathore told them that he wanted to take the search of the house and the accused consented to search and when the house was searched a polythene bag containing heroin was recovered from below the pillow cover lying on the cot. On weighing it was found to be 1 Kg. 310 grams. The Sub-Inspector also found a scale and weights under the cot. He took out the sample from the recovered heroin and sealed it. He also sealed the remaining articles. After the receipt of the report of the Chemical Examiner, Ex. P. IS, a challan was submitted against both the accused. ( 3 ) BOTH the accused denied having committed any offence. The prosecution examined eight witnesses. P. W. 1 Hira Lal Constable, P. W. 2 Prem Raj Rathore, S. I. P. W. 3 Raghuveer Singh, Constable, P. W. 4 Deep Singh, Constable and P. W. 7 Durga Lal, Constable are the employees of Narcotics Bureau, who were members of the raiding party. P. W. 5 Girdhari Lal and P. W. 6 S. N. Nair were associated in the search and seizure as Motbirs. P. W. 8 Nathi Lal Mitollya had conducted investigation. The accused in their statements recorded under Section 313 Cr. P. W. 5 Girdhari Lal and P. W. 6 S. N. Nair were associated in the search and seizure as Motbirs. P. W. 8 Nathi Lal Mitollya had conducted investigation. The accused in their statements recorded under Section 313 Cr. P. C. stated that the witnesses have given false statements and they did not know anything. Accused Kingsley stated that he was student of Shivaji University, Kolfiapur and he went to Udaipur only on 28. 12. 1992 and that on 1. 1. 93 when he was in the market alongwith Casmir, they were accosted by the corps and asked if they were Nigerians and on their saying yes, they were caught. Accused Casmir also stated that he went to Udaipur only on 29. 12. 1992 alongwith his wife and was with Kingsley in the market when he was caught. The accused did not examine any witness in defence. The learned special Judge, after hearing the learned counsel for the parties and considering the evidence, convicted the accused as above. Hence, these represented and jail appeals. ( 4 ) I have heard Mr. Mehta, learned counsel for the appellants and Mr. Joshi, learned counsel for Union of India and perused the record of the case. ( 5 ) THE contention of Mr. Mehta, learned counsel for the appellants is three fold: (i) that it is not proved on record that there was compliance of Section 42 of the Act; (ii) that the Sub-Inspector was not authorised to make a search and seizure without obtaining warrant from the Magistrate under Section 41 of the Act; and (iii) that the statements of the accused recorded under Section 67 of the Act could not be read in evidence as these statements were hit by Article 20 (3) of the Constitution of India. The case of State of Punjab v. Balbir Singh, Saiyed Mohd. v. State of Gujarat,r. B. Shah v. D. K. Guha, and Narcotics Control Bureau v. Gani Khan, have been referred to. As against this, the learned counsel appearing for the Union of India submits that there is a presumption of the official acts having been clone In accordance with law and, therefore, the compliance of Section 42 should be presumed. Section 114 illustration (e) of the Evidence Act has been referred to. ( 6 ) I have given the matter by anxious consideration. Section 114 illustration (e) of the Evidence Act has been referred to. ( 6 ) I have given the matter by anxious consideration. ( 7 ) THEIR Lordships of the Supreme Court in the case of State of Punjab v. Balbir Singh (supra) have considered the effect of. non-compliance of various provisions of the Act. Dealing with Section 42, their Lordships have observed at 16 of the judgment as follows: The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the provision to section 42 (1 ). To that extent, they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. ( 8 ) IN the concluding para it has been observed as follows: "2c) 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 to belief. 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 affect the prosecution case and vitiate the trial. 3) 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 official superior. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. 3) 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 official superior. If there is total noncompliance of this provision the same affects the prosecution case to that extent it is mandatory. But If there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. T ( 9 ) IT is thus obvious that the empowered officer If gets prior Information from the Mukhbirt then it is obligatory for him to reduce It in writing and If the information is not recorded, the trial Is vitiated. In the Instant case, Prem Raj Rathore (P. W. 2) deposed hi his examination-in-chief that he had recorded the information received by him. However this information has not seen the iight of the day. Sh. Rathore in his cross-examination had admitted in unequivocai terms that he had not recorded the information received by him as according to him, it was not finai. His statement indicates that he had received the secret Information that Ishakha, Kingsiey and Casmir had received heroin. It is thus ciear that the information was compiete. He was not Justified In not recording the same in writing. The non-recording of the Information Is certainiy fatai to prosecution and triai is vitiated in view of the iaw iaid down by the Apex Court. ( 10 ) THEIR Lordships of the Supreme Court in the case of Saiyed Mohd. v. State of Gujarat (supra) have heid that there is no room for drawing a presumption under section 114 iiiustration (e) of the Indian Evidence Act in the matter of N. D. P. S. cases because the possession of iiiicit articies under the Act has to be satisfactoriiy estabiished before the Court. v. State of Gujarat (supra) have heid that there is no room for drawing a presumption under section 114 iiiustration (e) of the Indian Evidence Act in the matter of N. D. P. S. cases because the possession of iiiicit articies under the Act has to be satisfactoriiy estabiished before the Court. Their Lordships have observed as fo i iows: Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the ianguage thereof obiiges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there Is no room for drawing a presumption under Section 114, iiiustration (e) of the Indian Evidence Act, 1872. By reasons of Section 14 a Court, may presume the existence of any fact which It thinks iikeiy to have happened, regard being had to the common course of naturai events, human conduct and pubiic and private business, in their reiation to facts of the particuiar case, It may presume (e) that judiciai and officiai acts have been reguiariy performed. There is no room for such presumption because the possession of iiiicit articies under the N. D. P. S. Act has to be satisfactory estabiished before the Court. ( 11 ) IT is thus obvious that the presumption as per iiiustration (e) of Section 114 Evidence Act cannot be pressed into service in this matter. There being no evidence on record that the secret information received from the Mukhbir was recorded, It has to be heid that there was totai noncompiiance of Section 42 of the Act. ( 12 ) SECTION 42 (2) of the Act requires the empowered officer, who takes down any information under Section 42 (1) of the Act, to forthwith send a copy thereof to his Immediate officiai superior. Their iordships of the Supreme Court In the case of Baibir (supra) have deariy heid that If there Is totai non-compiiance of Section 42 (2) of the Act, the same affects the prosecution case to that extent it is mandatory. In he Instant case. Sh, Rathore has nowhere deposed that he had sent a copy of the secret information recorded by him to his immediate officiai superior. In he Instant case. Sh, Rathore has nowhere deposed that he had sent a copy of the secret information recorded by him to his immediate officiai superior. As a matter of fact, we have aiready seen that even Shri Rathore had not recorded the information as required by Section 42 (1 ). Therefore is no hesitation in saying that there was non- compiiance of mandatory provision of section 42 (2) of the Act aiso. Thus there was totai non-compiiance of Sec. 42 and the conviction is iiabie to be set aside on this ground aione. ( 13 ) SECTION 41 (1) of the Act confers powers on Magistrates to issue warrant for the arrest of any person whom he has reason to beiieve to have committed offence under Chapter N of the Act or for a search of any buiiding in which he has reason to beiieve any narcotic drug or psychotropic substance is kept or conceaied. Sub-section (2) of Section 41 of the Act empowers the officers of gazetted rank of the Department of Centrai Excise, Narcotics and others to authorise any officer subordinate to him, but superior in rank to a peon etc. to arrest such a person or search a buiiding where the contraband articie is kept or conceaied. However, Section 42 of the Act permits the empowered officers to make search and seizure and also to arrest the any person who has committed offence under Chapter IV of the Act. Shri Rathore, who was Sub-Inspector of the Narcotics Bureau, was certainly an empowered officer to act under Section 42 of the Act even without obtaining a warrant from the Magistrate or authorisation from a gazetted officer by virtue of the power conferred on him vide Notification S. O. 822 (E) dated 14. 11. Shri Rathore, who was Sub-Inspector of the Narcotics Bureau, was certainly an empowered officer to act under Section 42 of the Act even without obtaining a warrant from the Magistrate or authorisation from a gazetted officer by virtue of the power conferred on him vide Notification S. O. 822 (E) dated 14. 11. 1985, which reads as follows: S. D. 822 (E)- In exercise of the powers conferred by sub-section (1) of Section 42 and Section 67 of the Narcotic Drugs and Psychotropic Substances Act,- 1985 (61 of 1985), the Central Government hereby empowers officers of and above the rank of Sub-Inspectors in the departments of Narcotics and of an above the rank of Inspector in the departments of Central Excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau (and Narcotics Central Bureau) to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorities the said officers to exercise the powers conferred upon them under Section 67. (No. 6/85/f. No. 664/ 51/85 - Opium, dated 14. 11. 1985) TI ( 14 ) THAT being so, there is no merit in the second contention raised by Mr. Mehta. ( 15 ) THE learned Special Judge has relied on the statements of the accused Exs. P-10 and P11 recorded by Prem Raj Rathore under Section 67 of the Act. They are the confessional statements. Section 67 of the Act empowers the officers referred to in Section 42 of the Act to examine any person acquainted with the facts and circumstances of the case during the course of any enquiry or in connection with the contravention of any provisions of the Act. It may be noticed that these statements were recorded by Shri Rathore at 11 p. m. on 1. 1. 93 as admitted by him in his cross- examination that he recorded the statements Exs. P-10 and P-li on 1. 1. 1993 at 23 hours. It is also to be noticed that both the accused had been arrested in the case vide Arrest Memos Exs. P-3 and P-4 at 5. 30 and 6. 00 P. M. on 1. 1. 1993. It is thus obvious that the statements Exs. P-b and P11 were recorded after both the accused were arrested in the case registered under the Act. They had become accused by that time. P-3 and P-4 at 5. 30 and 6. 00 P. M. on 1. 1. 1993. It is thus obvious that the statements Exs. P-b and P11 were recorded after both the accused were arrested in the case registered under the Act. They had become accused by that time. This Court in the case of Narcotic Control Bureau v. Gani Khan (supra) has held that if the statement under Section 67 of the Act is recorded after the person is named as an accused, such statement cannot be read against that person because of the bar created by Article 20 (3) of the Constitution of India. The Honble Supreme Court in the case of R. H. Shah v. D. K. Guha (supra) has held that the statement recorded under Section 19-F of the Foreign Exchange Regulation Act after the person was made accused was hit by Article 20 (3) of the Constitution of India. In this view of the matter, the statements Exs. P-b and P-li could not be pressed into service, and the learned trial Judge has erred in using them against the accused. ( 16 ) APART from this, Shri Rathore has not recorded the statements of the accused in the language spoken by them. The accused being Nigerians could not know Hindi. Their statements should have been recorded in English, more so when Shri Rathore knew English. Besides this, a reading of the statements shows that there is absolutely no difference in the two statements Exs. P-b and P-li excepting the names of the accused. This shows that Shri Rathore has written the statements as he liked and they are not the voluntary statements of the accused. ( 17 ) THE learned counsel for the appellants also contends that there are material contradictions in the statements of the witnesses and also that the independent Motbirs have not supported the recovery from the accused. He submits that even the testimony of Shri Rathore establishes that he had prepared forged documents in order to implicate the accused. According to Mr. Mehta, Pradeep Kumar was the best person to say as to whether accused lived in his house and when he has not been produced and it is proved in record that one Constantine was the tenant of Pradeep Kumar, the accused could not be held to be in possession of the contraband articles. According to Mr. Mehta, Pradeep Kumar was the best person to say as to whether accused lived in his house and when he has not been produced and it is proved in record that one Constantine was the tenant of Pradeep Kumar, the accused could not be held to be in possession of the contraband articles. ( 18 ) THE arguments are not without substance. Both the Motbirs P. W. 5 Girdharilal and P. W. 6 S. N. Nayar have deposed that they were not present in side the house when the search was conducted. They have also deposed that the accused had met outside the house and that they had told that they had come from outside. Thus, the independent Motbirs have not supported the recovery from the possession of the accused. It may also be noticed that Sh. Rathore has admitted that Prabhulal and Rafudin were not present when the search and see took place. However the seizure memo Ex. p. 2 bears the signatures of both these persons Sh. Rathore has given strange explanation of their signatures on Ex. P-2 that since both these officials were placed on duty during night, their signatures were obtained on Ex. P-2. The explanation of getting signatures of the two departmental persons on the seizure memo Ex. P-2 given by Shri Rathore is far from satisfactory. This only shows that the papers have been prepared just to implicate the accused persons No sanctity can be attached to such documents. Besides this, it cannot be denied that Pradeep Kumar or his wife, who, were the owners of the house from where the seizure was made, were material witnesses in this case. They only could say as to whether the accused lived in their house. By the non-production of Pradeep Kumar or his wife without any explanation, it has to be presumed that they were not prepared to say that accused lived in their house. It may be noticed that according to Nathu Lal, 1. 0. P. W. 8, this house was given by the wife of Pradeep Kumar on rent to one Constantine. Thus, it was not at all proved on record that the house from where contraband article was recovered was in the possession of the accused. It may be noticed that according to Nathu Lal, 1. 0. P. W. 8, this house was given by the wife of Pradeep Kumar on rent to one Constantine. Thus, it was not at all proved on record that the house from where contraband article was recovered was in the possession of the accused. ( 19 ) I do not consider it necessary to enter into the detailed discussion of the evidence produced in the case as because of the non-compliance of the mandatory provisions of Sections 42 (1) and 42 (2) of the Act, the trial and the conviction of the appellants are vitiated. ( 20 ) CONSEQUENTLY, both the appeals succeed. The conviction and sentence of the appellants- Kingsley and Casmir are set aside and they are acquitted of the offence charged with. They are in custody. They shall be released forthwith If not required in any other case. Appeal allowed. .