Judgment :- The Order of the Court is as follows :- Of the prosecution case is that the accused was found in possession of Poppy Straw known as "Posca Pattai", a narcotic drug valued at Rs. 6, 000/-, without any valid licence or permit and thus, he is guilty under Section 8(c) read with Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. To substantiate the case of the prosecution, on the side of the prosecution, four witnesses were examined as P.Ws. 1 to 4 and Exs. P1 to P12 and M.Os. 1 to 6 were marked. The Special Judge, for Essential Commodities Cases at Pudukottai, by his Judgment dated 11-3-1996, found the accused guilty and sentenced him to undergo imprisonment for a period of 10 years and also directed that he should pay a fine of Rs. 1, 00, 000/-. Aggrieved by the said convicted and sentence, this appeal is preferred by the accused. 3 Though on behalf of the prosecution, four . witnesses were examined P.Ws. 1 to 3 turned hostile. The evidence of P.W. 4, the Inspector of Police, is to the following effect :- "On 28-9-1994, at about 7 P.M., he received a secret information, which he recorded and sent a report of the same to the higher authorities. At about 8-15 p.m., he went to the ship bearing No. 47, located in and searched the shop premises in the presence of P.Ws. 1 and 2 . There were two gunny bags kept in the shop, one was open and the other was stitched up. On checking the same, the bags were found to contain posca pattai. The accused, when querried, stated that he had no licence for the same. The stitched gunny bag contained 20 Kgs. of posca pattai, while the bag that was open contained 15 Kgs. of posca pattai. In the presence of P.Ws. 1 and 2, P.W. 4 Mohan Doraisamy took samples from both the bags. Then, he prepared a mahazer for the search and seizure under Ex. P5. Then he arrested the accused at 9 P.M. and took him to the station, where he registered a case in Cr. No. 61//94." Ex. P. 6 is the Printed F.I.R. P.W. 4 examined P.Ws. 1 and 2 and after sending the samples, he sent requisition to the Judicial Magistrate to send them for clerical analysis. P5. Then he arrested the accused at 9 P.M. and took him to the station, where he registered a case in Cr. No. 61//94." Ex. P. 6 is the Printed F.I.R. P.W. 4 examined P.Ws. 1 and 2 and after sending the samples, he sent requisition to the Judicial Magistrate to send them for clerical analysis. On 14-1-1995, he examined P.W. 3 Kumar and recorded his statement. Ex.P. 7 is the chemical analysis report received from the laboratory. The report sent under Section 57 of the NDPS Act is Ex. P. 8. Ex.P. 9 is the report of the secret information received that was sent to the higher authorities with P.10 Ex.P. 11 is the report under Section 57 of the Act. The same was returned by the Superintendent of Customs, after recording the same under Ex. P. 12. Exs. P1 to P2 are the signatures of P.Ws. 1 and 2 in the mahazars, while P4 is the more card relating to service connection No. 130. The Inspector, after completing the investigation, laid the charge sheet. 4. The point that arises for consideration is : Whether the conviction and sentence passed by the Court below is liable to be set aside? 5 . The Point :- There are certain circumstances available in this case, which through considerable doubt about the prosecution version. According to the Inspector P.W. 4, he received information on that day around 7 p.m. and on the basis of the same, he proceeded to inspect and made a search of the shop, bearing Shop No. 47, in Gandhi Market, Trichirapalli. 6 Section 42 of the Narcotic Drugs and . Psychotropic Substances Act, 1985 (hereinafter referred to as Act) empowers an Officer to enter and make search without warrant or authorisation. Section 42 provides that if he receives any information given by any person, it must be taken down in writing. Section 42(2) of the Act provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate superior. Section 42 provides that if he receives any information given by any person, it must be taken down in writing. Section 42(2) of the Act provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate superior. Section 42 of the Act, therefore, while empowering the Officer to enter and make search and effect seizure, without any warrant or authorisation provides that if it is done on the basis of the information given by any person, it must be recorded or taken down in writing, and if he enters and searches any building at any time between sunset and sunrise, after recording the grounds for his belief, he shall forthwith send a copy thereof to his immediate official superior. The Officer making search must have 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, in which case he may enter between sunset and sunrise after recording the grounds for his belief. But, he shall forthwith send a copy thereof to his immediate official superior. Therefore, Section 42 of the Act provides that the information received by the Officer must be recorded and reduced into writing. When she search is effected after sunset or before sunrise, he must also record the grounds for his belief. Thirdly, he shall forthwith send a copy thereof to his immediate official superior.7 Here, the information is said to have been . received at 7-15 pm. The search was made at 8-15 pm. Admittedly the Officer, who conducted the search, was not fortified with any warrant or authorisation. It has to be seen whether the Officer viz., P.W. 14 had complied with the mandatory provisions of the Act. The Act provides under Section 15 for a term of imprisonment which shall not be less than 10 years and which may extend to 20 years and also further provides that the offender shall also be liable to fine which shall not be less than Rs. 1, 00, 000/-. Thus, the Act provides for a heavy punishment. Therefore, the Framers of the Act thought it necessary to lay down certain procedural safeguard so that the tendency to implicate innocent people may be put an end to. 1, 00, 000/-. Thus, the Act provides for a heavy punishment. Therefore, the Framers of the Act thought it necessary to lay down certain procedural safeguard so that the tendency to implicate innocent people may be put an end to. With that object, Sections 42, 50 and 57 of the Act have been incorporated in this Act. By merely stating that they have received some information, the officer concerned cannot simply go and inspect the place. It is necessary for him to record the source of information and gist of the information received by him and sent a report of the same to the higher authorities. Further, if he wants to make search without authorisation and warrant, and when he makes search after sunset and before sunrise, the Act provides that the Officer concerned shall forthwith send a copy thereof of his immediate official superior, recording the grounds for his belief. 8In this connection, we have ........ is mandatory . in nature was observed and adhered to by P.W. 4. The charges sheet in this case filed into Court on 13-2-1995 and it was returned and represented on 20-4-1995. The column 'list of copies to be furnished to the accused' in the charge sheet, mentions Item No. 2 as 'Information Report'. Perhaps it was filed into court without the said report, and hence it was returned by the court for non-production of the information report. Now, while representing the final report viz., the Charge Sheet, Item No. 2, which reads as 'Information Report' has been struck off the list of copies to be furnished to the accused and thus came to be renumbered, showing the mahazer for the seizure of poppy straw as Item No. 2. Report under Section 57 of the Act as Item No. 3, Statements of P.Ws. 1 to 3 as Item No. 4, Chemical Analysis Report as Item No. 6, and Item No. 7 as the Charge Sheet. The rough sketch for the scene mentioned has also been struck off. Nor any rough sketch was produced into court and marked on the side of the prosecution. This fact only shows that the information report was not produced and was not available for production into court either on 13-2-1995, when it was presented into court, or on 20-4-1995 when it was represented into court. Nor any rough sketch was produced into court and marked on the side of the prosecution. This fact only shows that the information report was not produced and was not available for production into court either on 13-2-1995, when it was presented into court, or on 20-4-1995 when it was represented into court. According to P.W. 4, he received the information at about 7 p.m. on 28-9-1994. This information is said to have been recorded by him. Obviously, charge sheet refers to the same was not produced along with the charge sheet at the time of filing original report or subsequent representation. On the other hand, charge sheet shows that the 2nd item was deleted from the list of documents to be furnished to the accused. P.W. 4 was examined on 14-3-1996. Even on that day, when he was examined, the said secret information received by him and which is claimed to have been reduced by him in writing was not produced into court nor was marked. When he was cross examined, he admitted clearly that he has no record to show that he forwarded the recorded information to his Superiors and he has no acknowledgement or postal receipt for having sent such information to his immediate superior official. While so, on 28-5-1996, the witness was recalled and a document, the information said to have been received by him and which is claimed to have been recorded by him was marked as Ex. P. 9 and that he stated that he sent it to the Superintendent of Customs at Madras under Ex. P. 10. In the course of cross-examination, he admitted clearly that this information was referred to as Item No. 2 in the charge sheet, but it has been struck off and that he does not know, who did the same. He admitted that he also did not send the rough sketch along with the charge sheet. When he was confronted with his earlier examination, with regard to non-production of recorded information, he stated that he had deposed to the effect that he was not having the same in his possession at that time. He admitted that he also did not send the rough sketch along with the charge sheet. When he was confronted with his earlier examination, with regard to non-production of recorded information, he stated that he had deposed to the effect that he was not having the same in his possession at that time. If really it was in his possession, on the day when he was examined, i.e., on 14-6-1996, it is not known as to why he could not produce the same on that day when he was examined in Chief or on 26-3-1996, when he was cross examined.9 Now let us see Ex. P. 9 and P. 10. There is . nothing in Exs. P. 9 and P. 10 to indicate that they were sent to the higher authorities as required. There is no postal seal. There is no office seal. There is nothing to show that such an information was recorded in writing and it was sent to the higher authorities as claimed. P.W. 4 also has not produced the case diary to show that any such information was received by him at 7 p.m., on that day and he recorded the same. It is also not known why the seal of the office of his was not affixed to the document immediately after he recorded the statement subsequently. On the other hand, from the circumstances of the case, we find that it was produced into Court immediately, or on the date when P.W. 4 was examined in chief or on the date when he was examined in cross. It was subsequently long after that the document was produced into court. It is not as though the importance of the document was not known to him. In such circumstances, it is not possible to account the case of the prosecution there has been compliance with the mandatory requirements. If really it was recorded and sent to the higher authorities, one would expect a covering letter to that effect. But that is also not produced. Further Section 41(2) of the Act provides that if search and seizure is to be effected after sunset and before sunrise, reasons must be recorded by the officers concerned. But, here we do not find any such document, especially when it is admitted that the search was made after sunset. But that is also not produced. Further Section 41(2) of the Act provides that if search and seizure is to be effected after sunset and before sunrise, reasons must be recorded by the officers concerned. But, here we do not find any such document, especially when it is admitted that the search was made after sunset. Thus, the prosecution has failed to prove miserably that the mandatory requirements were complied with in this case. Even in the report alleged to have been sent under Section 57 of the Act, it is not stated that a secret information was received at about 7 p.m. On 29-8-1994, and as he was of the opinion that the person concerned may escape and therefore, it became necessary for him to make a search without specific authorisation from the Magistrate and that the proceeded to the spot and made a search. Thus, neither receipt of secret information nor the reasons for making the search and seizure before sunrise and after sunset as required under proviso (s) are referred to in the report.10It is to be pointed out that there is no . focussing by the lower Court upon this issue. A strange reasoning is given by the Court below, stating that Exs. P. 9 and P. 10 were sent along with Ex. P. 11 and therefore they do not bear any initials or seal of the office. P.W. 4 admits clearly that there is nothing in Exs. P. 9 and P. 10 to show that they were received by the higher authorities. The records from that office are not summoned, nor the official who has initiated the Sec. 57 report has been examined to prove it. Yet, conveniently, he has stated that Exs. P. 9 and P. 10 were sent along with Ex. P. 11. There is no covering letter also. If Exs. P. 9 and P. 10 were sent along with P. 11, it is not known as to why the Superior Officer concerned failed to initial Exs. P. 9 and P. 10. If any covering letter is produced to show that the report under Section 57 of the Act was sent and Exs. P. 9 and P. 10 were enclosed along with the report, then perhaps, one can accept the explanation offered. But, it is not so. P. 9 and P. 10. If any covering letter is produced to show that the report under Section 57 of the Act was sent and Exs. P. 9 and P. 10 were enclosed along with the report, then perhaps, one can accept the explanation offered. But, it is not so. 11The Apex Court has held in the decision reported in (State of Punjab v. Balbir Singh) as follows :- "Likewise, only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal. Under Section 41(2) only empowered officer can give the authorisation to subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction. Under Section 41(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. 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 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. The object of NDPS Act is to make stringent provision 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 makes it obligatory that such of these officers mentioned therein, on receiving an information should reduce to writing and also record reason for the belief while carrying out arrest on search as provided under the provision to Section 42(1). To that extent, they are mandatory. Consequently, the failure, to comply with these requirements affects the prosecution case and therefore, vitiates the trial." 12. Thus, the Apex Court has held in unambiguous . terms that the provisions are mandatory and if the mandatory provisions are not complied with, it will affect the case and vitiate the trial. To that extent, they are mandatory. Consequently, the failure, to comply with these requirements affects the prosecution case and therefore, vitiates the trial." 12. Thus, the Apex Court has held in unambiguous . terms that the provisions are mandatory and if the mandatory provisions are not complied with, it will affect the case and vitiate the trial. Here, the prosecution has failed to substantiate that the mandatory provisions were complied with. There is nothing to show that any information was received and the same was recorded in writing and reported to the superior officer. Equally, there is nothing to show that the officer, who conducted the search after sunset and before sunrise recorded the reasons for his doing so. When these two provisions, which are mandatory in effect, are not complied with, it follows that the trial is vitiated and the prosecution must therefore fail. The lower Court has failed to consider the effect of the provisions and the mandatory nature of the same. The lower Court has only scuttled the issue and the reasons given by the same are not tenable. In my view, there is failure to comply with the mandatory provisions of law. Therefore, it follows that the case of the prosecution is greatly affected and thus, the non-compliance of the mandatory provisions has vitiated the entire prosecution case. Hence, the appellant is entitled to be acquitted. In this view of the matter, the conviction and sentence passed by the Court below cannot be therefore, maintained. 13 In the result, the appeal is allowed . acquitting the accused. The conviction and sentence passed by the Court below are hereby set aside. The fine amount, if any paid, shall be refunded for the appellant. The accused shall be released forthwith unless he is required in any other case.