JUDGEMENT - ASHOK AGARWAL, J. :---Non-compliance of the provisions of section 42 of the Narcotics Drugs Psychotropic Substances Act, 1985, in our view, will vitiate the order of conviction recorded against the appellant. 2.Incident, in question, has taken place at about 5.00 or 5.30 a.m. on the 31st of August, 1989 which is after sunset and before sunrise. Appellant, at that time, was proceeding to Addis Ababa by Ethiopian flight No. ET-641 at the Sahar Airport. The suitcase belonging to the appellant had been checked in and was awaiting the customs clearance. A dog of the Customs Department named Anand stopped near the suitcase of the appellant and gave indications by its movements that some contraband article was stored in the bag. The dog was specially trained for detection of Narcotic drugs. P.W. 1 M. Rajayyan kept watch. Appellant had cleared the immigration before approaching the customs. He took her near the suitcases to identify her baggage. Appellant identified one Echolac suitcase of blue colour. It was the very suitcase the dog Anand had given indications after smelling it, The baggage tag affixed to the suitcase tallied with the number of counterfoil attached to the air ticket of the appellant. M. Rajayyan asked the accused whether there was any narcotic drugs in that suitcase but the appellant replied in the negative. Hence, two female panch witnesses were called. In their presence appellant was asked to open the suitcase. She opened it by setting the numbers of the lock at 500. In the false bottom, both at the top and the bottom of the suitcase, polythene bags containing brown sugar was detected. The same totally weighed 3.500 Gms. Six samples of 15 gms. each were drawn and the same were kept in polythene bag and were duly sealed. Residue brown sugar powder was put in another polythene bag and the same was also sealed. The said contraband, on being analysed, was found to be brown sugar. 3.As far as the aforesaid seizure is concerned, it is clear that the same was carried out between sunset and sunrise. The search was carried out in pursuance of an information, Mr. M. Rajayyan gathered from their dog Anand. The aforesaid information it is common ground, was not reduced to writing and the same was also not sent by him to his immediate Superior Officer. The search was carried out in pursuance of an information, Mr. M. Rajayyan gathered from their dog Anand. The aforesaid information it is common ground, was not reduced to writing and the same was also not sent by him to his immediate Superior Officer. In the case of (State of Punjab v. Balbir Singh)1, A.I.R. 1994 S.C. 1872 the Apex Court has inter alia held, as under : (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 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 these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial". 4.As far as the evidence of P.W. 1 M. Rajayyan is concerned, he has deposed "I had informed my Superior Officer Mr. K. Sanjiva on intercom telephone and he was also with us. I am not aware of provisions of the N.D.P.S. Act. He has, however, failed to record the information in writing. P.W. 3 Kadri Sanjiva, in turn, has deposed." On 31-8-89 at early hours of the day, we carried out one seizure at Sahar Airport on the Departure Module -II. Our one Sr. Officer Mr. M. Rajayyan who was subordinate to me had informed me that our sniffer dog Anand had smelt one suitcase which is meant to go abroad, by Ethiopian Airlines and indicated presence of narcotic drugs therein. So immediately I collected some officers from the department and went upto the Departure Module -II. I went to the Customs Examination counter. The aforesaid evidence makes it clear that after the dog Anand had sniffed the suitcase and given indications by its movements that contraband articles had been stored in the bag, the aforesaid officers had reason to believe that narcotic drugs or psychotropic substances had been stored in the suitcase. I went to the Customs Examination counter. The aforesaid evidence makes it clear that after the dog Anand had sniffed the suitcase and given indications by its movements that contraband articles had been stored in the bag, the aforesaid officers had reason to believe that narcotic drugs or psychotropic substances had been stored in the suitcase. Since the time of the search was between sunset and sunrise a duty was cast upon Mr. M. Rajayyan to record the information in writing. A further duty was cast upon him to send a copy of the information so recorded in writing, to his immediate superior officer. This is clear from sub-section (2) of section 42, which provides as under : "42. Power of entry, search, seizure, and arrest without warrant or authorisation. ..(1) ... ... (2) Where an officer takes down any information in writing under sub section (1) or records grounds for his belief under the proviso thereof, he shall forthwith send a copy thereof to his immediate superior official." 5.The aforesaid provision, in the aforesaid decision of the Supreme Court in Balbir Singh's case (supra) has been held to be mandatory. Breach of the said provisions, therefore, would vitiate the trial. 6.For the aforesaid reasons, appeal is allowed and the impugned order of conviction and sentence dated the 12th and 13th of July 1994, passed by the learned Special Judge for Greater Bombay, in N.D.P.S. Special Case No. 918 of 1989, is quashed and the appellant/original accused Smt. Asha O. Mohamadi is acquitted and is directed to be set at liberty forthwith unless required in some other case. The fine amount, if paid, be refunded to the appellant. Appeal allowed. *****