C. R. PAL, J. ( 1 ) THE appellant assails the order of conviction and sentence passed against him by the learned 1st Additional Sessions Judge, Berhampur in Sessions Case No. 27 of 1993 (GDC) wherein he has been convicted and sentenced under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh) and, in default, to suffer S. I. for six months and under section 20 (b) (1) to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to suffer S. I. for one month. ( 2 ) THE case against the appellant is that the S. I. of Excise, Aska (PW-3) on 14-11-1992 receiving information that the appellant was selling Ganja and Opium in his shop at Motabadi proceeded to Motabadi along with other Excise Staff, namely, Shri J. Mahakud, the A. S. I. of Excise, Shri Sukadev Pradhan, a Constable of Excise (PW-1) and some other Excise Staff by a trekker. They arrived near the betel shop of the appellant situated at the outskirt of village Motabadi at about 5. 00 p. m. and found the accused present in his shop. The S. I. of Excise asked the appellant to remain there and called two villagers, namely, Amulya Pradhan and Surath Swain, the PW-2 to the spot to witness the search and in their presence and in presence of the appellant the Excise Staff gave their personal search and after searching the witnesses the Betal shop of the appellant was searched wherefrom Opium kept in a plastic packet covered with a paper and some Ganja kept in a polythene paper were recovered. The PW-3 weighed the seized Opium and Ganja by using departmental weighing scale and found that the Opium weighed 175 gms. and the Ganja weighed 400 grams. From his long experience in the Department, and basing on the smell and taste of the seized articles he found that the articles were Opium and Ganja. As the appellant could not produce any authority to possess the said Opium and Ganja he seized the same and prepared a seizure list. Ext. 1, in presence of witnesses who put their signatures thereon. The appellant declined to sign the seizure list. As the appellant could not produce any authority to possess the said Opium and Ganja he seized the same and prepared a seizure list. Ext. 1, in presence of witnesses who put their signatures thereon. The appellant declined to sign the seizure list. The S. I. thereafter put the seized articles in a plastic handbag and tied the same with string over which after putting wax he put the fascimal impression of his personal seal. The sealed packet was again covered with a paper seal containing the signatures of PW-3 and other witnesses. The said packet was again sealed affixing- the personal seal of the S. I. The appellant was informed about the grounds of arrest and was arrested. But shortly thereafter on the signal of the appellant 50 to 60 co-villagers of the appellant attacked the Excise Staff and rescued the appellant forcibly. The S. I. of Excise made an endorsement to that effect on the seizure list. Ext. 1 and thereafter recording the statements of the witnesses went to Kalipadar Out post to lodge information, but there he was informed to go to Buguda Police Station as the village Motabadi situates within the territorial jurisdiction of that police station. So on the next day i. e. on 15-11- 1992 he lodged an information, Ext. 12 at Buguda Police Station. As 15-11-1992 was a Sunday he produced the seized property and the seizure list etc. before the SDJM on 16-11-1992. He also moved the learned SDJM to collect and send samples of the seized articles for chemical examination. Accordingly, the samples were drawn and were sealed with wax seal of learned SDJM, Bhanjanagar and were sent for chemical examination under the forwarding letter, Ext. 6 of the learned SDJM to the S. D. C. R. L. , Bhubaneswar. On receiving the Chemical Examiners reports, Exts. 10 and 11 which revealed that the samples sent for chemical examination were Opium and Ganja respectively, the PW-3 submitted prosecution report under section 18 and section 20 (b) (l) of the Act against the appellant. ( 3 ) THE appellant was charged for the offence under section 18 of the Act for possessing Opium and under section 20 (b) (1) of the Act for possessing Ganja to which he pleaded not guilty and claimed be tried. The case of the appellant was a complete denial of the allegations levelled against him. ( 3 ) THE appellant was charged for the offence under section 18 of the Act for possessing Opium and under section 20 (b) (1) of the Act for possessing Ganja to which he pleaded not guilty and claimed be tried. The case of the appellant was a complete denial of the allegations levelled against him. ( 4 ) THE prosecution examined PW-1, an Excise Constable, PW-2, a local witness to the search and seizure and PW-3, the S. I. of Excise, who conducted the search and effected the seizure. Prosecution also relied on the document; such as the seizure list (Ext. I), the FIR lodged at Buglida P. S. (Ext. 12), Chemical Examiners reports (Exts 10 and 11) and some other documents. The appellant however, neither adduced any oral evidence nor exhibited any d09ument in support of his case. The learned 1st Additional Sessions Judge relying on the evidence adduced by the witnesses and the exhibited documents; such as seizure list, Ext. 1, Chemical Examiners reports, Exts. 10 and 11 convicted and sentenced the appellant as stated above. ( 5 ) THE learned counsel appearing for the appellant assails the order of conviction and sentence mainly on the grounds of non-compliance of the requirements of section 42 (1), section 52 (3) and section 57 of the Act. The learned Additional Government Advocate, however, made his submissions supporting the impugned judgment. He also submitted that the appellant having not taken the plea of non-compliance of section 42 (1) of the Act at the trial Court cannot raise the same at the appellate stage, ( 6 ) COMING to the objection raised by the learned Addi. Government Advocate about the plea relating to noncompliance of section 42 (1) of the Act before this Court on the grounds that the same was not raised before the trial Court it may be stated that such a question: was for consideration before a single Bench of this Court in Bijaya Kumar Subudhi v. State, and in answering the question the Court held that non-compliance of the mandatory provision of the Act being clearly a question of law the same can be raised in appeal. The law is well settled that information received from any person on the basis of which an officer empowered under section 42 affects the search and seizure has to be taken down in writing. The law is well settled that information received from any person on the basis of which an officer empowered under section 42 affects the search and seizure has to be taken down in writing. Section 42 (1) is mandatory to that extent. In Saiyad Md. Saiyad Umer Saiyad and others v. State of Gujarat, and the apex Court while considering the question whether an appellant can raise the plea of non-compliance of mandatory provisions of section 50 of the Act at appellate stage for the first time also ruled that the protection that section 50 gives to those accused. of being in possession of illicit articles under the Act is sacrosanct and cannot be disregarded on the technicality that the point was not taken in the Court at the first instance. Applying the principle laid down by the apex Court it may very well be said that the plea relating to noncompliance of section 42 (1) which is mandatory in nature can be taken at the appellate stage for the first time. In the above premises, the objection raised by the learned Additional Government Advocate must fail. ( 7 ) NOW coming to the next contention of the learned counsel of the appellant that the noncompliance of the provisions of section 42 (1) of the Act vitiates the trial, it is noticed from the evidence of the witnesses on record that the search of the betel shop of the appellant was made on the basis of the prior information received by the S. L of Excise, the PW-3. In this context, the PW-3 has deposed I received confidential information from a spy that the accused was selling Ganja and Opium in a pan shop situated in village Motabadi. In his cross-examination he has deposed I reduced to writing the information received from my spy with regard to the occurrence in our information register which is called C. I. register. My case diary shows that the information received by me was reduced to writing but it does not show it was reduced to writing in the said register. The information register is not produced in the Court. Excepting the testimony of PW-3 there is no other oral or documentary evidence to show that the information received was taken down in writing. The information register is not produced in the Court. Excepting the testimony of PW-3 there is no other oral or documentary evidence to show that the information received was taken down in writing. Though the PW-3 has said that he took the information in writing he has failed to produce the said writing in Court. The seizure list, Ext. 1 and the FIR, Ext. 12 arc also silent in this respect. Failure to produce and prove the said writing coupled with the conspicuous silence of the contemporaneous documents; such as Ext. 1 and Ext. 12 about the existence of such a writing makes the evidence of PW-3 on the subject unacceptable to come to a conclusion that in reality the information received by him was taken in writing. When the evidence of PW-3 on the subject becomes unacceptable there remains nothing to suggest that the provision of section 42 (1) of the Act was complied with. The provision of Sec. 42 (1) of the Act which requires to take the information in writing is mandatory. It is a well-established principle that the non-compliance of the mandatory provision of section 42 (1) vitiates the trial. In this context, reference may be made to State of Punjab v. Balbir Singh, wherein it has been laid down by the apex Court that 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 and search without a warrant between sunrise and sunset 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 sunset and sunrise, he must record the grounds of his belief. To this extent the provisions of section 42 (1) are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. 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 the provisions of section 42 (1) are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. Even if it is accepted that the PW-3 took the information in writing in the C. I. register the same cannot improve the case against the appellant as there is no evidence of any kind either oral or documentary to show that the provision of section 42 (2) of the Act was also complied with. Section 42 (2) of the Act envisages that where an officer takes down any information in writing under sub-section (1) or records the grounds of his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. In the instant case, though the P. W. 3 claims that he reduced the information into writing in the C. I. register there is no evidence to show that he sent a copy thereof to his immediate official superior. The apex Court in this context in State of Punjab v. Balbir Singh, (supra) has also held that the provision of section 42 (2) is mandatory and a total non-compliance thereof vitiates the trial. Therefore, applying the principle laid, down by the Honble Supreme Court in the aforesaid case, it can very well be said that for non-compliance of the provisions of section 42 (1) and (2) of the Act, the trial is vitiated. ( 8 ) THE next contention of the learned counsel of the appellant is that for the non-compliance of the provisions of section 52 (3) and section 57 of the Act which are mandatory in nature the trial vitiates. In the above context, it may be stated here that the provisions of section 52 and section 57 of the Act are not mandatory by themselves. The apex Court in State of Punjab v. Balbir Singh (supra) has on this point held: The provisions of sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay, etc. If there is noncompliance or if there are lapses like delay, etc. , then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on facts of the case. TI It is thus clear that the provisions are not mandatory and unless it is known that the noncompliance has resulted in prejudice to the accused no adverse view against the prosecution can be taken. In the instant case, there is no evidence on record to show any prejudice to the appellant. Moreover, the contention about non-compliance of provision of section 52 (3) cannot also be accepted as in the instant case the seizure was affected by PW -3 who himself was an empowered officer as envisaged under section 53 of the Act. PW-5 has stated in his examination On 14-11-1992 I was S. I. of Excise attached to take charge. I am an empowered officer as envisaged under sections 42 and 53 of NDPS Act by the notification of Govt. of Orissa Section 52 (3) of the Act requires an officer affecting the seizure to produce the seized article before the O. I. C. of the nearest police station or before an officer empowered under section 53 of the Act with the powers of an Officer-in-charge of a police station for the investigation of the offences under the Act. Here III the instant case the P. W. 3, who himself was an officer empowered under Sec. 53 of the Act with the powers of an Officer-in-charge of a police station seized the articles. Sec. 52 (3) of the Act does not require an officer empowered under section 53 of the Act to produce the persons arrested and the articles seized before the O. I. C. of the nearest police station. This is so because the officer is empowered with all the powers of an Officer-in-charge of a police station. Therefore, non-production of the seized articles before the O. I. C. of the nearest police station cannot in any manner affect the prosecution case adversely. ( 9 ) IN the result, the appeal is allowed. The order of conviction and sentence passed by the learned 1st Additional Sessions Judge. Therefore, non-production of the seized articles before the O. I. C. of the nearest police station cannot in any manner affect the prosecution case adversely. ( 9 ) IN the result, the appeal is allowed. The order of conviction and sentence passed by the learned 1st Additional Sessions Judge. Berhampur is set aside and the appellant is acquitted of the charge under sections 18 and 20 (b) (i) of the Act. The appellant be set at liberty forthwith, if his detention in custody is not required in connection with any other case. Appeal allowed. .