JUDGMENT 1. - This appeal arises out of the judgment and sentence passed on 25.2.99 by learned Special Judge, N.D.P.S., Cases, Bhilwara in Sessions Case No. 265/97, whereby the appellant Bhanwar Lal has been held guilty under Section 8 read with 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act') and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rupees one lac: in default to further undergo rigorous imprisonment for six months. 2. The prosecution case is that Sub-Inspector Ratan Lal, Police Station, Kotwali, Bhilwara received a secret information on 9.11.97 that a person wearing Jerkin of military colour and pent will pass from a Railway culvert near Kashipuri, Harijan Colony with opium in his possession. This information was reduced into writing and he rushed to the spot with police constables and two motbirs. It is alleged that the appellant Bhanwar Lal came on a motorcycle at about 10.00 PM. who was stopped by the raiding party. A memo under Section 50 of the Act was also served but the appellant consented to give his search to Sub-Inspector Ratan Lal, who recovered from the pockets of the Jerkin two plastic small bag contained 500 Gms. opium in each. Samples were taken and sealed on the spot. The remaining contraband article was also sealed. The report of the F.S.L. Indicated that the article recovered from the appellant was contraband item i.e. opium. The charge-sheet was submitted against the appellant who was prosecuted under Section 8 read with 18 of the Act and after trial the impugned judgment and sentence as stated above was passed by the trial court. 3. I have heard the arguments of learned counsel for the appellant and the learned Public Prosecutor and also perused the evidence on record. It is contended that the compliance of the mandatory provision under Section 42(2) of the Act has not been made because the copy of the secret information has not been forwarded to the official superior and it vitiates the trial. It is further argued that Shri Ratan Lal the recovery officer was Sub-Inspector and not appointed Station House Officer and therefore he was not competent under Section 42 of the Act to conduct the search and recovery of the alleged contraband item. It is further argued that Shri Ratan Lal the recovery officer was Sub-Inspector and not appointed Station House Officer and therefore he was not competent under Section 42 of the Act to conduct the search and recovery of the alleged contraband item. The learned Public Prosecutor supported the to impugned judgment and submitted that the provisions laid down under Section 42 of the Act are not applicable in the facts and circumstances of the case because the appellant was going on public road on motor cycle. He was stopped and interrogated and thereafter the recovery was made from him in a public place. It was, therefore, not necessary for the recovery officer to send a copy of the secret information to the superior officer because Section 43 of the Act is applicable in this case. Shri Ratan Lal was Sub-Inspector at the relevant time, but he was holding the charge of the police station because Shri Pram Singh, S.H.O. was out of station. As such Ratan Lal was performing the duties of Station House Officer. However, the learned counsel for the appellant vehemently argued that the prosecution has failed to establish by cogent and conclusive evidence that S.H.O. Prem Singh was out of station and Ratan Lal was acting as Station House Officer. 4. I have given my careful consideration to the rival contentions. The learned trial court has dealt with this argument and came to the conclusion that in all the documents prepared on the soot in connection with the search and recovery, Ratan Lal has designated himself as incharge Police Station and the witnesses have also stated that Prem Singh, S.H.O. had gone out for official work. The learned trial court took the view that non-production of the Rojnamcha entry to prove handing over and taking over of the charge and non-production of S.H.O. Prem Singh as a witness is inconsequential. I find myself unable to agree with the findings of the learned trial court particularly when the appellant has alleged that a false case has been prepared by Ratan Lal and Budh Singh on account of some dispute over the transaction of sale of motor cycle with Budh Singh. I find myself unable to agree with the findings of the learned trial court particularly when the appellant has alleged that a false case has been prepared by Ratan Lal and Budh Singh on account of some dispute over the transaction of sale of motor cycle with Budh Singh. He also took the plea that he is suffering from kidney trouble so much so that one kidney is not working and second one is in disorder and therefore he was not physically fit to move out by driving a motor cycle. It is true that in all the papers prepared by the recovery officer Ratan Lal, he has designated himself as Incharge Police Station, but by itself his own statement and contents of these documents do not lead to a conclusive proof that he was working at that particular time as In charge Police Station and S.H.O. Prem Singh was out of station on official work. It was the duty of the prosecution to prove the authority of Ratan Lal, recovery officer to conduct search and recovery proceedings under Section 42 of the Act, which is a mandatory provision and should be strictly complied with and the requirements must be proved clearly by cogent and material evidence available with the prosecution. It was incumbent on the part of the prosecution to prove this fact by producting primary oral and documentary evidence and not merely rely on the documents prepared by Ratan Lal himself during the search and seizure. 5. I am of the view that there was no reason for the prosecution to with-hold the primary documentary evidence i.e. the Rojnamcha kept in the Police Station wherein the entries are made when the police officials proceed from the Thana and hand over charge to the next official. I am in agreement with the learned counsel for the appellant that the Rojnamcha of that particular day and time should have been produced by which Prem Singh, S.H.O. left the Police Station for official work and handed over charge to Ratan Lal, Sub-Inspector as claimed by the prosecution. Similarly, the prosecution could have produced the entry of the Rojnamcha of that particular day and time when S.H.O. Prem Singh returned and assumed the charge of Station House Officer from Ratan Lal said to be Incharge of the Police Station on that day. Similarly, the prosecution could have produced the entry of the Rojnamcha of that particular day and time when S.H.O. Prem Singh returned and assumed the charge of Station House Officer from Ratan Lal said to be Incharge of the Police Station on that day. Moreover, Prem Singh, S.H.O. becomes a material witness in the above facts to and circumstances to depose before the court that he had gone out for official work after handing over charge to Ratan Lal, Sub Inspector. In the absence of these primary oral and documentary evidence it cannot be taken as proved beyond reasonable doubt that Ratan Lai, Sub Inspector was discharging his duties as a Incharge of the Police Station. Thus, I come to me is conclusion that the prosecution has failed to prove that Ratan Lal, Sub inspector was competent or authorised to work as S.H.O. and to effect search and seizure of the alleged contraband article as per the prosecution case. This infirmity In the prosecution ease goes to the root of the case and vitiates the whole trial. In the result, the appeal deserves to be accepted solely on the above ground and of contentions raised on behalf of the appellant not necessary to be dealt with.The Instant appeal is hereby allowed and the impugned judgment and sentence dated 25.2.99 passed by learned Special Judge, N.D.P.S. Case Bhilwara is hereby set aside. The appellant Bhanwar Lal is hereby acquitted of the charge under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He shall be released forthwith, if not required in any other case.Appeal allowed. *******