JUDGMENT - N. ARUMUGHAM, J.:---Since these three appeals are arising out the judgment of conviction and sentence rendered in N.D.P.S. Special Case No. 59 of 1995 by the learned Special Judge under the Narcotic Drugs Psychotropic Substances Act, 1985 (for short, hereinafter referred to as the N.D.P.S. Act), on the basis of the common F.I.R., all of them were heard together and are disposed of by this Judgment, as the factual matrix and legal aspects in each these three cases are identical with one another. 2. Mr. Mohamed Anwar Mohd. Yusuf Jiwa, appellant in Criminal Appeal No. 204 of 1997, accused No. 1 and Mr. Abubakar s/o Abdul Rahiman, the appellant in Criminal Appeal No. 181 of 1997, accused No. 2 and Mr. Arjun Umpathi Reddy, appellant in Criminal Appeal No. 167 of 1997, accused No. 5 being aggrieved by the judgment of conviction and sentence dated 26th February, 1997, rendered by the learned Special Judge under the N.D.P.S. Act in N.D.P.S. Special Case No. 59 of 1995 for the offence under section 8(c) of the N.D.P.C. Act, punishable under section 25 thereof, convicting and sentencing each of them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/-, and in default of payment of fine, each of the accused shall have to undergo further sentence of six months, have individually preferred the above three appeals. 3. The original accused Nos. 3 and 4, though they were tried for the similar offence along with the present three appellants, the learned trial Judge has since acquitted them. Accused Nos. 1, 2 and 5 alone have canvassed these three appeals against the judgment of conviction and sentence dated 26th February, 1997 rendered against them. The State has, however, not preferred any appeal against the judgment of acquittal rendered in the above case on 26th February, 1997. 4. The matrix of the prosecution case can be briefly stated hereunder: 5. At about 10.00 a.m. on 21-1-1995, one Mr. A.P. Sharma, an informant is said to have come to P.W. 1 Ramchandra Rajendra Bhosale and gave information to the effect that two persons viz. 4. The matrix of the prosecution case can be briefly stated hereunder: 5. At about 10.00 a.m. on 21-1-1995, one Mr. A.P. Sharma, an informant is said to have come to P.W. 1 Ramchandra Rajendra Bhosale and gave information to the effect that two persons viz. Mohammed Jiva and the other by name Abubakar with their particular physic description, were likely to come in front of Arun Chambers Building at In Gate, near Air-Conditioned Market, Tardeo, between 12.30 and 13.30 hours on 21-1-1995 to give delivery of mandrex tablets to some persons and for further transit thereof. On getting the said information, it was reduced into writing and the Police machinery was put in swing as W.S.I. More asked P.W. 1 to call for two panch witnesses, which direction was complied with and member of the Police Raiding Party were introduced to the panch witnesses and they were informed about the information received and consequently arranging of Narcotic trap. The two persons viz. the Panchas were also apprised of the physic description of the persons who were expected to come with the narcotic substances. After the search of the two panchas, the police vehicle scheduled for raid proceeded to their destination with all weighing materials, drug identification kit, inclusive of a typewriter and so on, and a pre-panchanama was also prepared to that effect. Thus, the police raiding party and the panchas took their positions infront of the Arun Chambers Building, Opposite the In-Gate, near A.C. Market, Tardeo, Mumbai, to vigil from 10 O'Clock onwards. 6. At about 12.30 hours, two persons resembling to the description given by the informant were seen at the place and they were holding a maroon colour suitcase and a sports-bag respectively. The first person was having a maroon colour suit-case, containing something and the other bearded person, heaving a sports-bag, containing something was seen. Subsequently, after few minutes it was noticed that three other persons joined them and they started discussing among themselves. As the informant pointed out the persons and identified them, particularly accused No. 1 Mohamed Anwar, who was holding maroon colour suit-case, and accused No. 2 Abubakar Abdul Rahiman, who was holding a sports-bag, all of them were surrounded by the police raiding party on the spot. The Police disclosed their identity. On being questioned, those persons disclosed their names with their respective addresses viz. Mohamed Anwar Mohd. The Police disclosed their identity. On being questioned, those persons disclosed their names with their respective addresses viz. Mohamed Anwar Mohd. Yusuf Jiwa, who is accused No. 1; Abubakar s/o Abdul Rahiman, accused No. 2; Harish Sakharam Savardekar, accused No. 3, Surendra Dodiya, Accused No. 4 , and Abdul Muqeet, the accused who was discharged. 7. All the accused were informed about their right to get themselves checked before a Gazetted Officer or Magistrate by the members of the police raiding party, but they refused to avail of the offer. But on being informed that P.W. 8 P.I. Dhawale was also a Gazetted Officer present at the spot, they expressed their willingness to be checked in his presence. 8. The prosecution case further reveals that the first accused was found holding a maroon colour suit-case and on opening of the said bag, it was found to contain polythene packets of tablets, which were removed from the packets. They were crushed and found positive for methaqualone; the total weighment of these tablets was 20 kgs. Samples of the same were taken in accordance with the procedure laid down in that behalf. In the personal search of accused No. 1, he was found to possess a cash of Rs. 200/- in his short-pocket. The same was taken charge of under the signature of W.S.I. More and the packet containing the cash was marked as "C". 9. The second accused-Abubakar was found holding a rexine bag with zip and blue, black and red coloured strips having words "Sports Bag" on one side and 'Chick Baby" and on top of it. On opening the said bag in the presence of panchas, it would found to contain transparent polythene bag containing tablets. The transparent bag was opened and it was found containing greyish coloured double-decker tablets, carrying the mark "M" on one side and Swastik on the other side tablets of each tablet. Some of the tablets on being crushed and tested with the drug identification kit turned out to be mandrex tablets and found positive for mathaqualone. Then, according to the procedure laid down, the samples of some of the tablets were taken; packets were sealed and labelled. Total weightment of the mandrex tablets found and recovered from the sports-bag of the second accused was 13 kg. On the personal check of the said accused, a cash of Rs. 153/- was also recovered. 10. Then, according to the procedure laid down, the samples of some of the tablets were taken; packets were sealed and labelled. Total weightment of the mandrex tablets found and recovered from the sports-bag of the second accused was 13 kg. On the personal check of the said accused, a cash of Rs. 153/- was also recovered. 10. The accused by name Abdul Muqeet Abdul Mohid Kan was taken searched and he was found with a cash of Rs. 75/-. During the search, the accused Harish Sakharam Sawardekar was found in possession of Rs. 27,500/-, which was recovered and thereafter during the search of accused No. 4 Surendra Dodiya, he was found in possession of cash of Rs. 8000/-. It was also taken charge of by the police. A panchanama was drawn on the spot and all the above said persons were explained the grounds of arrest. Accordingly, they were arrested. After furnishing a copy of the panchanama to each of the accused, acknowledgement therefor was taken. 11. After reaching the Office of the Narcotic Cell, all the members of the raiding party, including the arrested persons, and the panchas, the statement of P.W. 1 R.R. Bhosale was recorded and it was treated as an F.I.R. for the concerned offences under the N.D.P.S. Act and on obtaining C.R. number from the Superior officials, the case was registered under C.R. No. 7 of 1995 against the said five accused. 12. It was also claimed by the prosecution that the information regarding the arrest of the accused and seizure of the contraband was passed on to the superior officials. But the samples of the seized contraband could not be sent to the Chemical Analyser due to holiday, and that they were sent to the Chemical Analyser on Monday i.e. on 23rd January 1995. Thereafter all the accused were interrogated then remanded. The accused were remanded to the police custody till 24th January, 1995. Accused No. 1 disclosed the name of one Arjun Reddy, i.e. accused No. 5, residing at House No. 16-2-45, Malakpeth, Akbarbaug, Hyderabad, who had manufactured the mandrex tablets, on his supplying the mathaqualone powder to Accused No. 5. 13. Thereafter all the accused were interrogated then remanded. The accused were remanded to the police custody till 24th January, 1995. Accused No. 1 disclosed the name of one Arjun Reddy, i.e. accused No. 5, residing at House No. 16-2-45, Malakpeth, Akbarbaug, Hyderabad, who had manufactured the mandrex tablets, on his supplying the mathaqualone powder to Accused No. 5. 13. Consequent upon the information given by accused No. 1 in his statement, a team of Police Officers was sent to Hyderabad in the night of 22nd January, 1995 and accused No. 5 was arrested on 24th January, 1995, who agreed to point out the factory, machines etc. which manufactured mandrex tablets. Consequently, again on 24th January, 1995 police party left for Hyderabad by Husain Sagar Express and returned from Hyderabad on 17th January, 1995 with accused No. 5-Arjun Reddy and 100 kgs. of methaquolene powder, tableting machine, grinding machine, drier. A panchanama to this effect was drawn at Hyderabad on 24/25th January, 1995. Then the police with the permission of the Court took accused No. 1 to Kodal, District Sindhudurg for making enquiries. Consequently, P.S.I. Thakare with Police Staff left for Kudal on 19th January, 1995 for making enquiries. The police staff deputed to kudal, returned to Mumbai Central on 3rd February, 1995 with machinery seized at the instance of accused No. 1 under panchanama dated 22nd February, 1995. Then, after receipt of the Report of the Chemical Analyser on 10th March, 1995, and completion of the investigation and recording of the statements of witnesses, all the accused were charge-sheeted before the learned Special Judge under the N.D.P.S. Act for the relevant offences above-named on 30th March, 1995. Accused Nos. 1, 2 and 5 were in judicial custody and accused Nos. 3 and 4 were released on bail during the trial. As all the accused persons pleaded not guilty, relevant charges under the N.D.P.S. Act were framed and they were tried by the learned Special Judge. In all eight witnesses, speaking to the old narration of the facts referred to above, were examined by the prosecution to prove the guilt of the accused. 14. When accused Nos. 1 to 5 were examined under section 313 of the Code of Criminal Procedure, on the basis of the incriminating circumstances, documents and evidence adduced against them by the prosecution witnesses, vide Exhibit Nos. 14. When accused Nos. 1 to 5 were examined under section 313 of the Code of Criminal Procedure, on the basis of the incriminating circumstances, documents and evidence adduced against them by the prosecution witnesses, vide Exhibit Nos. 52, 53, 54, 55 and 56, they denied their complicity in toto. Accused Nos. 1 to 4 pleaded that they had been picked up on 21-1-1995 and that they were innocent. So also accused No. 5 denied his complicity in toto. However, they did not examine any witnesses in that behalf nor filed documents in support of the defence. 15. After having examined the oral and documentary evidence adduced by and on behalf of the prosecution, the defence theory as a whole and the materials placed before the Court in the context of the rival contentions and the arguments advanced by and on behalf of the prosecution and the defence, the learned Special Trial Judge has found accused Nos. 1, 2 and 5 guilty, as the prosecution has proved their guilt beyond any reasonable doubt for the offences charged against them and accordingly convicted and sentenced them as afore-mentioned. But, however, the learned trial Judge has found accused Nos. 3 and 4 not guilty and accordingly they were acquitted by rendering the impugned judgment dated 26th February 1997. Being aggrieved by this judgment of conviction and sentence, accused Nos. 1, 2 and 5 have preferred the above three appeals challenging the correctness of the impugned judgment. 16. We have heard the rival contentions of the bar for the respective parties. 17. Mr. S.S. Keswani, the learned Counsel appearing for the appellants in Criminal Appeal No. 204 of 1997 and Criminal Appeal No. 181 of 1997 seriously urged three main contentions before us. In substance they are: (i) that while rendering the judgment of conviction and sentence, though pointed out by the defence to the learned Special Trial Judge, the learned Judge has deliberately not taken note of the mandatory directions provided by section 42 of the N.D.P.S. Act, and has not all been complied with, which go to the root of the prosecution case, and that while doing so, the learned Trial Judge seems to have fell into an error by the superficial claim of the prosecution viz. that they had sent an intimation about the information received to the higher officials, when the moment when received it, and (ii) that P.W. 3, one of the panch-witnesses to the recovery of the seized narcotic contraband at about 1200 Noon on 21st January, 1995 has not at all supported the prosecution and that the fact that the other panch-witnesses had not been at all been examined has been lost sight of by the learned Special Trial Judge, which would ultimately mean that the recovery of the narcotic contraband alleged to have been recovered at the instance of the accused, has not been proved beyond reasonable doubt by the prosecution, and (iii) that the presence of the so called informant by name A.P. Sharma near the Arun Building where the recovery was made creates a grave suspicious and appears to be a strange thing that after giving the information to P.W. 1 he stood in the police station and accompanied the police party and was present throughout the seizure. 18. Besides the above three main contentions, the learned Counsel Mr. Keswani for the appellants also brought to our notice that the procedure as to testing of the contraband substances and its production before the Chemical Analyser for examination has not been properly followed as is evident from the statements of P.W. 1 and P.W. 8. Mr. Subhash Jha, the learned Counsel appearing for the appellant in Criminal Appeal No. 161 of 1997 while canvassing the improbabilities and the legal defects in making the seizures at Hyderabad and Kudal, which pertain to the seizure of the machinery used for the manufacture of the mandrex tablets, mainly attacked the so-called statement made by accused No. 1 , which was not recorded in the first person and that, therefore, according to the learned Counsel the whole procedure adopted by the investigating agency in the instant case cannot be said to be in tune with the procedure laid down therefor. 19. In support of their contentions, learned Counsel have relied upon the case law laid down by the Apex Court as well as this Court, Per contra, Mrs. V.K. Tahilramani, learned Public Prosecutor appearing for the respondent-State vehemently opposed the contentions of the learned Counsel for the petitioners on factural mantrix as well as on legal grounds. However, the same conspicuously does affect the factual matrix of the instant case. V.K. Tahilramani, learned Public Prosecutor appearing for the respondent-State vehemently opposed the contentions of the learned Counsel for the petitioners on factural mantrix as well as on legal grounds. However, the same conspicuously does affect the factual matrix of the instant case. With great respect to the learned Public Prosecutor, it is for the said reason, we are not inclined to refer to each and every case law as it will not help the prosecution to improve its case anymore. 20. Before proceeding to discuss the factual matrix of the instant case, we would like to emphasize and refer to the legal aspects of the first contention raised by and on behalf of the appellants herein by the bar. It has become necessary and relevant for us at this stage to extract what has been observed by the learned trial Judge in paragraphs 18-A and 19 of his judgment with regard to this contention, viz., non -compliance with the mandatory provisions contained in section 42 of the N.D.P.S. Act. Paragraphs 18-A and 19 of the N.D.P.S. of the impugned judgment run like this: "18-A. In order to establish compliance of provisions of section 42 of the N.D.P.S. Act, the prosecution has placed on record extract of information received by P.W. 1 Bhosale recorded by W.S.I. More at Exhibit 32, its copy having been transmitted and sent to higher authorities is placed at Exhibit 31. P.W. 2 Bhosale and P.W. 8 Dhawale have deposed about receipt of information by P.W. 1, its recording by W.S.I. More and its despatch to the superior authorities on 21-1-1995 vide Outward No. 40. The entry at Outward Register is placed at Exhibit 48 and its copy (xerox) at Exhibit 48-A. Mr. Keswani, learned Counsel representing accused invited my attention to entry at Outward No. 40 for sending information to superior officers placed at Exhibit 48, its xerox copy at Exhibit 48-A and pointed that there is reference of C.R. No. 7/95 below that entry. This, according of him, creates doubt that at such time no crime was registered. Therefore, according to him, the information was not passed on prior to the raid. I do not agree that there is any infirmity in the prosecution case on the point of compliance of provisions of section 42(i), 42(ii) of the N.D.P.S. Act. This entry is dated 21-1-1995 itself. Therefore, according to him, the information was not passed on prior to the raid. I do not agree that there is any infirmity in the prosecution case on the point of compliance of provisions of section 42(i), 42(ii) of the N.D.P.S. Act. This entry is dated 21-1-1995 itself. It will be mere speculation to say that entry depicts C.R. No. 7/95 hence to be discarded. At this stage, the entry at Serial No. 40 is reproduced hereinbelow:-- Entry at Sr. No. 40 Exhibit 48 40-21-1-1995 The D.C.P. Sub-copy of N/Cell B' bay information The A.C.P. book dated The Sr. P.I. 21-1-95 (C.R. No. 7/95) It was open for the learned defence Counsel to have asked explanation to P.W. 8 Dhawale on this point. It cannot be said that information was not passed on to the superior officers prior to raid. The entry does not speak that it was arising out of C.R. No. 7/95. Mere reference that too in bracket will not mean that entry at Exhibit 48 of sending information is subsequent to the raid. The reference of putting C.R. No. 7/95 can be subsequent in order to locate entry for future reference to a particular crime. Again it is to be borne in mind that first seizure and search dated 21-1-1995 is at Tardeo Road, Mumbai at open place which falls within the -ambit of public place as defined in section 43 of N.D.P.S. Act. Section 43 provides for seizure of Narcotic Drugs and Psychotropic Substance and to detain and search such person if found in public place. Therefore, to reiterate, I do not find fault with prosecution and I hold that there is compliance of section 42(i) and 42(ii) of N.D.P.S. Act. 19-A.The above position is clarified by the Honourable Supreme Court in the judgment of (State of Punjab v. Balbirsingh)1, reported in A.I.R. 1994 S.C. 1872 which reads as under: "Under section 42(i) the empowered officer if has a prior information given by any person that should necessarily be taken down in writing. 19-A.The above position is clarified by the Honourable Supreme Court in the judgment of (State of Punjab v. Balbirsingh)1, reported in A.I.R. 1994 S.C. 1872 which reads as under: "Under section 42(i) 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 offence 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 sun set and this provision does not mandate that he should record his reason 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 for his belief. To this extent, these provisions are mandatory, contravention of the same would affect the prosecution case and vitiate the trial." 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 no-compliance of these provisions, 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. If an empowered officer or an authorised officer under the Act carries out search he would be doing so under the provisions of Cr.P.C. viz. sections 100 and 165 and if there is no strict compliance with the provisions of the Cr. P.C. then such search would not be per se illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case." Thus, the Hon'ble Supreme Court has held that if there is total non-compliance of these provisions, the same affects prosecution case and 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. 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. Reading outward register entry, firstly, I do not find that there is any delay on the part of the prosecution. If the delay is accepted, it cannot mean to enlarge that it is after 21-1-1995. It is to be noted that raid at Tardeo was on 21-1-1995 at 14.00 hrs. therefore it cannot be presumed that sending of information was later than commencement of raid or after arrival of the raid. Therefore, the repeat, I do not find any fault in the prosecution on the point of compliance of provisions of section 42(1) and 42(2) of the N.D.P.S. Act. This answers Point No. 6 in affirmative. 20-A. With reference to the factual matrix of the instant case, indisputably the above observations of the learned trial Judge, in our considered view are not correct. To say so, in a very simple language would be that the learned trial Judge has clearly fell into an error in not appreciating the very in-built and spelt out mandate in sub-section (2) of section 42 of the N.D.P.S. Act. The ratio laid down by the Supreme Court in the case law viz. (State of Punjab v. Balbirsing), reported in A.I.R. 1994 Supreme Court 1872 was very clear and unambiguous. In sub-paragraph (2c) of paragraph 26 of the above judgment, Their Lordships have clearly pronounced that under sub-section (2) of section 42, the empowered officer, if he has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason that offences under Chapter IV have been committed or material which may furnish evidence of commission of such offences are concealed in any building, etc., he may carry out the search and effect arrests 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. 21. To this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. 22. 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. 21. To this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. 22. In sub-para (3) of paragraph 26 of the said judgment, the Apex Court has clearly laid down that under sub-section (2) of section 42 such empowered officer who takes down any information in writing or records the ground under proviso to section 42(1) should forthwith send a copy thereof to his immediate superior official. If there is total non-compliance 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. 23. The word "forthwith" employed in sub-para (3) of paragraph 26 of the said judgment would, according to the law Lexicon laid down, mean "immediately". 24. In (Lamin Bojang v. State of Maharashtra)2, reported in 1996(4) Bom.C.R. 524 a Division Bench of this Court, following the ratio laid down by the Apex Court in the case of State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872 had also an occasion to consider a similar question of law, and held that non-compliance of the mandatory provisions of section 42 of the N.D.P.S. Act, viz., prior information reduced in writing but not sent to the immediate superior official could not be said to be compliance of the provisions and that in such case the whole trial would be vitiated and consequently the conviction and sentence would become unsustainable. A careful perusal of the ratio enuciated by the Apex Court in sub-parargraph (3) of paragraph 26 of the judgment in the case held between State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872 would clearly show that in case information received prior to the setting the law in motion under sub-section (2) of section 42, by an officer has been reduced into writing and the same has not been sent by him to his immediate superior official under sub-section (2) of section 42, the prosecution case would be affected, because the provisions in sub-section (2) of section 42 are mandatory. 25. 25. On scaling down the facts of this case, we find that consistently the case of the prosecution is that the information furnished by Mr. A.P.I. Sharma, the informant, at about 10.00 a.m. on 21st January, 1995 was reduced into writing by W.S.I. More and a copy thereof had been despatched immediately to the superior officials as is evident from Exhibits 31 and 32. The learned trial Judge has further observed that a perusal of the entries in the Outward Register (Exhibit 40) at Exhibits 48 and 48-A would show that there was compliance of the provisions of sub-section (2) of section 42 of the N.D.P.S. Act. But in our view, the said proposition is not correct and the said observations are totally erroneous and not based on the legal evidence adduced by the prosecution. In our considered view, there is substance and force in the first contention of Mr. Keswani, the learned Counsel appearing for the appellants. It is not in dispute or controversy that the information about the commission of the offence by the accused in the instant case was orally supplied by Mr. A.P.I. Sharma, the informant, at about 10.00 a.m. on 21st January, 1995 to P.W. 1 - R.R. Bhosale, which was reduced into writing by W.S.I. More. It is significant to note that W.S.I. More has not been examined nor cited as a witness before the trial Court. P.W. 1 - R.R. Bhosale, the Constable, is not the author of the information which was reduced into writing under Exhibits 31 and 32. Though it contains the names of the higher officials to whom a copy thereof had been forwarded, it is neither in evidence nor on record of the prosecution case to show that a copy of the said information, which was reduced into a writing, had been despatched to the superior officials referred to in Exhibits 31 and 32. While perusing Exhibits 48 and 48-A, we have noticed that time of despatch has not been mentioned in the Outward Register, Exhibit 40. But, strangely enough, in the Outward Register, below Exhibits 48 and 48-A, C.R. No. 7/95 has been given in brackets. While perusing Exhibits 48 and 48-A, we have noticed that time of despatch has not been mentioned in the Outward Register, Exhibit 40. But, strangely enough, in the Outward Register, below Exhibits 48 and 48-A, C.R. No. 7/95 has been given in brackets. If the oral information given by the informant Sharma had been reduced into writing and that a copy of the said writing had been sent forthwith, as per the requirements of sub-section (1) of section 42 of the Act, to the higher officials, then we wonder how the said copy contains C.R. No. 95 in the Outward Register vide Exhibits 48 and 48-A. This aspect has not been explained by the prosecution. The learned trial Judge has observed that the learned defence Counsel has not confronted either P.W. 1 or P.W. 8 in this regard. But the said observation, in our view, is not correct and it is erroneous because, it is for the prosecution to prove that they had complied with the mandatory provisions. What was contended by the learned Counsel appearing for the petitioners, is that after the seizure of the contraband was made in full and on return of the entire raiding party to the Police Station at 3.20 p.m. on 21st January, 1995, the statement of P.W. 1 Bhosale was recorded, which was registered as an F.I.R. by W.S.I. More, and thereafter by contacting the higher officials, C.R. No. 7/95 was obtained, and that, therefore, the claim made by the prosecution that the first information which was received at about 10.00 a.m. on 21st January, 1995, was reduced into writing, and a copy thereof had been sent to the higher officials immediately, pursuant to the mandatory provisions of sub-section (2) of section 42 of the N.D.P.S. Act, is not correct, and that the said theory is an innovated theory subsequently to get rid of the legal consequences. 26. At this stage, it is pertinent to refer to the evidence given by P.W. 8 at paragraph 52 of the Notes of Evidence, and it reads like this: "After recording of statement of Raju Bhosale, telephonic call was made to Head Office. Crime Register Number was taken and they were requested to forward printed form of F.I.R., which was received at Andheri Unit after an hour. Crime Register Number was taken and they were requested to forward printed form of F.I.R., which was received at Andheri Unit after an hour. I do not know who brought it." If the above portion of the evidence given by P.W. 8 a responsible officer, is true, then it cannot be believed that the first information orally furnished by the informant Sharma to P.W. 1, which was reduced into writing by W.S.I. More could not at all have been sent to the higher officials as mandatorily contemplated, for the reason that it contains C.R. No. 7/95. It is neither the case of the prosecution nor that of any of the prosecution witnesses that immediately after getting the information at about 10.00 a.m. on 21st January 1995, it was reduced into writing and then they contacted the superior officials of the Narcotic Unit and obtained C.R. number in the Entries at Exhibits 48 and 48-A in the Outward Register, Exhibit 40. Thus, it is clear that the very appearance of C.R. No. 7/95 in the entries at Exhibits 48 and 48-A, in the context of not mentioning the time of despatch, clinchingly demonstrates that no copy of the information reduced into writing has been despatched or sent forthwith to the higher officials, but that it was sent only subsequent to the registration of the crime registered under C.R. No. 7/95 after 3.20 p.m. on 21st January, 1995 which amounts to total noncompliance of the mandatory provisions of sub-section (2) of section 42 of the N.D.P.S. Act, as it goes to the very root of the prosecution case. As the above aspect has been totally ignored, and misconstrued by the learned Special Trial Judge, we are not satisfied with the observations and the reasons given by the learned trial Judge in paragraphs 18-A and 19 of his judgment. Thus, it is clear that there is total non-compliance of the provisions of sub-section (2) of section 42 of the N.D.P.S. Act in the present case. The police authorities of the Narcotic Cell had received prior intimation at about 10.00 a.m. on 21st January, 1995 about the commission of the offence by the accused, which was reduced into writing by W.S.I. More. The police authorities of the Narcotic Cell had received prior intimation at about 10.00 a.m. on 21st January, 1995 about the commission of the offence by the accused, which was reduced into writing by W.S.I. More. However, a copy of the said writing was not forwarded to the senior officials for the reason that the prosecution has miserably failed to produce any material to hold that there is compliance with the mandatory provisions of sub-section (2) of section 42 of the N.D.P.S. Act in the instant case and to this extent the first contention urged by Mr. Keswani and Mr. Subhash Jha, the learned Counsel for the appellants, is hereby accepted and sustained. As the said ground is a legal ground, and as held by the Apex Court in the case law referred to above viz. State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872, it goes to the root of the prosecution case. We are, therefore, not inclined to traverse or discuss the other aspects of the case on factual matrix, though the bar has urged several contentions on this aspect. Since the whole case rests upon this legal ground, which vitiates the whole trial in the present case, we are not inclined to accept the same. 27. In the result, these three appeals succeed and accordingly they are allowed. The conviction and sentence imposed by the judgment by the learned Special Judge under N.D.P.S. Act, Greater Mumbai, dated 26th February, 1997, in N.D.P.S. Special Case No. 59 of 1995 against the appellants (original accused Nos. 1, 2 and 5) for the offence mentioned in the said judgment is hereby set aside. The above three appellants (original accused Nos. 1, 2 and 5) are hereby set at liberty forthwith if not required in any other cases. Consequently, the amount of find, if any, paid by the appellants, is hereby ordered to be refunded to them forthwith. Certified copy expedited. Parties to act on an authenticated copy of this judgment and order duly signed by the Sheristedar/Associate of this Court, pending receipt of certified copies. Appeals allowed. *****