JUDGMENT - KHANDEPARKAR R.M.S., J.:---This Appeal arises out of the Order dated 10-1-1994 passed in N.D.P.S. Spl. Case No. 1343 of 1988 whereby the Appellant herein was convicted under section 21 read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the said Act”) and was sentenced to suffer R. I. for 10 years and to pay a fine of Rs. 1 lakh in default to suffer R.I. for six months more. The case of the prosecution is that on 26-9-1988, the complainant along with his companion Intelligence Officers of Narcotic Control Bureau (NCB), Bombay had gone to the Esplanade Court for producing before the Court one Nigerian National by name Felix Chike Ejiofor and on that occasion they found accused moving there in suspicious circumstances and therefore apprehended the Appellant and took him to their office for interrogation. Thereafter, on direction from R.N. Kakar, Deputy Director, NCB, Bombay, the Appellant was taken to his Residence at Flat No. 11, JN3 No. 19, Sector 9, Vashi, New Bombay and the Officers searched the said premises and recovered from kitchen one plastic bag containing 80 small balloons of different colours containing 10 grams of brown powder which was tested and identified as heroin and consequently they recovered 80 grams of heroin from the said flat. They seized the entire property and they also recovered weighing and packing material as also cash of Rs. 15,300/-. All the items were seized under the panchanama drawn on the spot and the Appellant was taken to the Office of the NCB, Bombay. After recording the statement of the Appellant under section 108 of the Customs Act and on receipt of the analysis report from the laboratory, the Officer's complaint was filed in the Court of the Chief Metropolitan Magistrate, Bombay on 5-12-1988 and the offence being exclusively triable by the Sessions Court, the case was committed to the Sessions Court on 5-12-1988 in the Court of Sessions. The Appellant pleaded not guilty and accordingly he was tried for the said offence. After recording the evidence, he was held guilty for the offence under section 8(c) of the said Act and therefore, he was convicted by the impugned judgment. 2. The Appellant pleaded not guilty and accordingly he was tried for the said offence. After recording the evidence, he was held guilty for the offence under section 8(c) of the said Act and therefore, he was convicted by the impugned judgment. 2. Though the Appeal has been preferred on various grounds, the challenge to the impugned Judgment and order has been restricted by the learned Advocate Shri S. B. Keshwani on two grounds firstly, that the entire prosecution vitiated for non-compliance of section 41(2) and 41(2) of the said Act. He submitted that in terms of section 41(2) of the said Act, the officer can act under the said section pursuant to the reason to believe from the information received by him and taken in writing about the commission of offence under Chapter IV of the said Act; that in the instant case undisputedly PW 6-Kakar who is said to have acted under section 41 did not take in writing the alleged information which was received by him from his subordinates; that there was no material before PW 6 to have reason to believe about the commission of offence under Chapter IV of the said Act by the Appellant to enable him, Shri Kakar, to act under section 41(2) of the said Act and secondly on the ground that there was no material on record to show that the P.W. 6-Kakar had in fact authorised P.W. 1-Bhalchandra K. Thekke and P.W. 2-Vijaykumar S. Shahasane under section 41(2) to conduct search and seizure of the drugs from the premises from which the same has been seized. Therefore the officer could act only under section 42(1) of the said Act. Admittedly, the search and seizure has been done during the period between the sunset and sunrise by the said Officer without recording the grounds for their belief for conducting the search after sunset. This has been done in spite of mandatory requirement for such recording of grounds under proviso to section 42(1) of the said Act. Hence according to Shri Keshwani, the entire prosecution has been vitiated and hence the Appellant is entitled for clear acquittal. 3. This has been done in spite of mandatory requirement for such recording of grounds under proviso to section 42(1) of the said Act. Hence according to Shri Keshwani, the entire prosecution has been vitiated and hence the Appellant is entitled for clear acquittal. 3. It is contended by Shri Keshwani that the evidence on record shows that P.W. 6/Kakar had no personal (sic) about the alleged commission of offence under the said Act by the Appellant and the information received regarding the same was given to him by his subordinates P.W. 1-Thekke and P.W. 2-Vijaykumar Shahasane. However, though the information regarding the alleged commission of offence under Chapter IV of the said Act by the accused was given by the subordinate to P.W. 6-Kakar in his office, he had not recorded the same in writing. In spite of various documentary evidence placed on record by the prosecution, a document showing that such information was recorded in writing by P.W. 6-Kakar before issuing the alleged authorisation to the subordinates to conduct the search and seizure in the flat from which the contraband drugs were seized has not been placed on record. The absence of such document shows that PW. 6-Kakar had no material before him to have reason to believe about the commission of offence under Chapter IV of the said Act. Such material is absolutely necessary under section 41(2) “to have a reason to believe” to have committed an offence under the said Act. The learned Advocate has relied upon the judgment of the Supreme Court in the matter of (State of Punjab v. Balbir Singh)1, reported in J.T. 1994(2) S.C. 108 in support of his contention. It is further contended by Shri Keshwani that no doubt, P.W. 1-Bhalchandra as well as P.W. 2-Vijaykumar have stated that before proceeding to search the premises they were directed to do so by P.W. 6-Kakar. However, they have also further stated that they did not try to get search authorisation of the premises from the officer empowered under section 41(2) of the said Act. The learned Counsel further submitted that it was incumbent upon said Officers, to obtain such authorisation before conducting said search since the search was conducted after sunset. However, they have also further stated that they did not try to get search authorisation of the premises from the officer empowered under section 41(2) of the said Act. The learned Counsel further submitted that it was incumbent upon said Officers, to obtain such authorisation before conducting said search since the search was conducted after sunset. The learned Advocate also drew our attention to the fact that before conducting the search, the concerned Officers did not record the grounds for their belief as was otherwise required under the proviso to section 42(1) of the said Act since search was conducted after sunset. Being so, relying upon the judgment of the Supreme Court in the matter of State of Punjab v. Balbir Singh (supra), the learned Advocate submitted that the entire proceedings are vitiated and therefore, the Appellant is entitled for acquittal. 4. Shri Borulkar, learned A.P.P. on the other hand submitted that the prosecution has sufficiently proved the charges levelled against the Appellant. He drew our attention to Exhibit 10, which is a telex message sent by P.W. 6-Kakar to his superior intimating the action against the appellant for having found to have committed an offence under the said Act. Placing reliance on the said telex message Exhibit 10, the learned A.P.P. submitted that there is sufficient compliance of section 41(2) of the said Act regarding taking the information in writing for the purpose of having reason to believe for Shri Kakar-P.W 6 to act under the said section of the said Act and therefore, the prosecution does not suffer from any vice. The learned A.P.P. further submitted that there was no reason for the Officers concerned to comply with the requirement of proviso to section 42(1) of the said Act since they were acting pursuant to the authorisation issued to them by P.W. 6 who was empowered to authorise search of the premises and arrest of accused under section 41(2) of the said Act. Placing reliance upon the unreported judgment of this Court in the matter of (Mohammed Hussain Farah v. Union of India)2, being Criminal Appeal No. 670 of 1993 decided on 21/23rd August, 1996 (to which we Agarwal and Khandeparkar, JJ are parties) the learned Counsel submitted that it was not necessary for them to record the grounds of belief before conducting the search even after the sunset. 5. 5. The prosecution has examined six witnesses in support of the charge and they include the Deputy Director of NCB, Bombay Shri Kakar as P.W. 6, his two subordinates viz., Balchandra Thekke as P.W. 1 and P.W. 2-Vijaykumar Shahasane respectively, besides, Jitendra Chaturvedi, Bharat Darji and Myrtle Lewis as P.Ws. 3, 4 and 5 respectively. 6. Before we proceed to analyse the materials on record and consider the submissions made by the learned Counsels, it is worthwhile to reproduce sub-section 41(2) of the said Act which reads as under : “41(1).................. .................... (2) Any such officer or gazetted rank 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 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 in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.” Equally is relevant the proviso to section 42(1) of the said Act which reads as under: “42(1).................. ................. Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.” 7. Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.” 7. It is clear from the reading of section 41(2) of the said Act that when the officer empowered under the said section decides to exercise powers under the said section, he must have reason to believe that an offence under Chapter IV of the said Act has been committed, and in order to have such reason to believe, he must either have personal knowledge about the alleged commission of offence or information given by somebody and taken down in writing regarding the same. In other words, it is not sufficient merely to say that the information was given to the officer by somebody but it is necessary to reduce the same in writing in order to make good his belief about the commission of offence under Chapter IV of the said Act. If the Officer proceeds to act under section 41(2) without any reason to have such belief then his action would be contrary to the provisions of the said Act. In the absence of any reason to have such belief, if the officer, who under the purported action under section 41(2) of the said Act, authorises his subordinate to search and/or arrest the accused, he does so, in violation of specific provisions in respect of his powers to act under section 41(2) of the said Act. 8. Likewise, it is clear from the reading of the proviso to section 42(1) of the said Act that the officer conducting the search either under section 42(1) or without lawful authorisation under section 41(2) of the said Act has to record the grounds of his belief in case the search is to be conducted between the sunset and sunrise. 8. Likewise, it is clear from the reading of the proviso to section 42(1) of the said Act that the officer conducting the search either under section 42(1) or without lawful authorisation under section 41(2) of the said Act has to record the grounds of his belief in case the search is to be conducted between the sunset and sunrise. If the officer fails to do so, then the search becomes illegal and such action would vitiate the prosecution and consequently the conviction, as was held by the Hon'ble Supreme Court in the matter of State of Punjab v. Balbir Singh (supra), since compliance of the said proviso has been held to be a mandatory requirement before conducting the search during the period from sunset to sunrise, while acting under section 42(1) of the said Act. 9. The perusal of the record discloses that P.W. 1-Bhalchandra has indeed stated that he along with Vijaykumar-P.W. 2 was directed by P.W. 6-Kakar to raid the place where the drug was informed to have been stored by the Appellant. So also, P.W. 2-Vijaykumar has stated that Shri Kakar directed him to carry out the raid in the said flat. However, the fact remains that there is no documentary evidence even remotely to suggest that before giving such direction by Shri Kakar-P.W. 6, the said Officer empowered under section 41(2) of the said Act had recorded in writing the information given to him by his subordinates viz., P.W. 1-Bhalchandra and Vijaykumar-P.W. 2. The record discloses that the Appellant was apprehended on suspicion by P.W. 1-Bhalchandra and Vijaykumar-P.W. 2 while they had gone to the Esplanade Court along with one Nigerian National. It was on that suspicion that the Appellant was apprehended and brought before P.W. 6-Shri Kakar. In the circumstances, before issuing any authorisation to the subordinates, it was necessary for Shri Kakar-P.W. 6 to record the information in writing in order to have reason to believe that the Appellant has in fact committed offence under Chapter IV of the said Act. In the circumstances, before issuing any authorisation to the subordinates, it was necessary for Shri Kakar-P.W. 6 to record the information in writing in order to have reason to believe that the Appellant has in fact committed offence under Chapter IV of the said Act. In the absence of such information having been recorded in writing, there is no material to presume that Shri Kakar-P.W. 6 had in fact reason to believe that the appellant had committed offence under Chapter IV of the said Act and that consequently had authorised his subordinates viz., P.W. 1-Bhalchandra and Vijaykumar-P.W. 2 to conduct the search of the premises of the appellant. In the absence of basic material to form the opinion i.e. to have the reason to believe for the empowered officer to act under section 41(2) of the said Act, it cannot be stated that the Officer had in fact acted under the said provision of section 41(2) of the said Act. In order to justify an action under section 41(2) of the said Act it is primarily necessary for the prosecution to establish that the empowered officer had either personal knowledge to have reason to believe the commission of the offence or there must be information recorded in writing to have reason to believe about the commission of the offence by the accused. 10. The telex message Exh. 10 can be of no assistance to the prosecution to establish that the said message is the information received by Shri Kakar-P.W. 6 and recorded in writing since the said message was sent on 30th September, 1988 whereas the search was conducted on the night of 26th September, 1988. The authorisation therefore, for search ought to have been given prior to the actual search of the premises and therefore, the recording of information should have preceded the issuance of such authorisation in order to have reason to believe about the commission of offence, so as to enable the officer to issue the authorisation to his subordinates for search and arrest. The Exh. 10 being dated 30th September, 1988, by no stretch of imagination can be said to have been recorded prior to the issuance of authorisation on 26th September, 1988. The Exh. 10 being dated 30th September, 1988, by no stretch of imagination can be said to have been recorded prior to the issuance of authorisation on 26th September, 1988. Thus, in the instant case, the evidence on record neither establishes that the information alleged to have been given by the subordinates to P.W. 6-Kakar was recorded in writing before proceeding to act under the said section of the said Act nor there is any material to show that there was authorisation by the empowered officer i.e. P.W. 6-Kakar to his subordinates under the said section 41(2) of the said Act. It can thus be seen that the officer in the instant case acted without any reason to believe about the commission of offence and therefore, the prosecution has failed to establish that the officer had in fact acted under section 41(2) of the said Act before proceeding to conduct the search and arrest. 11. As regards the second contention it is not disputed that the Officers concerned had not recorded their grounds for belief before conducting the search in spite of the fact that the search was conducted after sunset. It is therefore, abundantly clear that there was no compliance of the proviso to section 42(1) of the said Act. However, the submission on the part of the learned A.P.P. is that it was not required for the Officers to comply with the said proviso since they were authorised to conduct the search under section 41(2) of the said Act. We have already held that there is no sufficient evidence on record to prove that there was such authorisation under section 41(2) of the said Act to the concerned Officers by P.W. 6-Shri Kakar. The submission on the part of the A.P.P. is devoid of substance since there was no such authorisation under section 41(2) of the said Act. It was necessary, in the facts and circumstances of the case under proviso to section 42(1) of the said Act, for the Officers concerned to record the grounds of their belief before conducting the search after sunset. There is no such written record of grounds. In the circumstances the entire prosecution is vitiated and therefore, the conviction is also vitiated and is liable to be set aside. 12. The unreported decision of this Court in the matter of Mohd. Hussain's case is not applicable to the present case. There is no such written record of grounds. In the circumstances the entire prosecution is vitiated and therefore, the conviction is also vitiated and is liable to be set aside. 12. The unreported decision of this Court in the matter of Mohd. Hussain's case is not applicable to the present case. The said decision does not deal with the point in issue in the present case. The said decision relates to the issue whether the authorisation under section 41(2) of the said Act is necessarily to be in writing or can be oral. In the said case, there was clear evidence to show that the information received by the empowered officer was taken down in writing and that the officer has in fact authorised his subordinates to investigate into the matter. This fact was further corroborated by oral evidence. In the case in hand before us, as already held, there is not a single document to suggest that the information was taken down in writing or that any authorisation was issued pursuant to such information. 13. In the result, we allow the appeal and set aside the conviction of the Appellant. The Appellant shall be set at liberty forthwith unless he is required in some other case. The bail bond of the Appellant shall stand cancelled. Appeal allowed. -----