Judgment M.L.Singhal, J. 1. This is appeal against the order dated 21.10.1998 in case FIR No. 238 of 1987 of P.S. Lopoke passed by Additional Sessions Judge-cum- Special Judge, Amritsar vested with the powers to try cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 where by Sukhwinder Singh @ Sukha was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1 lac under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for six months. 2. The prosecution case in brief is that on 11.11.1987 DSP Major Singh on receipt of secret information and orders from SSP Amritsar which was to the effect that some smugglers would be entering India with arms and ammunition, gold, opium, heroin and other smuggled articles and Naqa be laid near Indo-Pak Border at some particular point in the area of Village Udhar Dhariwal, P.S. Lopoke, so as to facilitate their apprehension. DSP Major Singh reached P.S. Lopoke in Government Vehicle No. PCA-867 being driven by constable Harjinder Singh along with constable Sukhdev Singh, constable Surjit Singh and S.I. Gajan Singh, SHO P.S. Ramdas. He joined ASI Sham Singh, ASI Gurbachan Singh, HC Santokh Singh, HC Ranjit Singh etc. at PS Lopoke. They all reached a particular point in Jeep No. PAQ 6745 and held Naqa at a distance of 1 furlong from the Behak of Ghasita Singh of Village Udhar Dhariwal, on the way leading from Pakistan to his Behak. At about 2:30 A.M. On 12.11.1987, Sh. K.S. Dhaliwal, Superintendent Customs (Preventive), Amritsar also came to the place of Naqa Bandi along with his party per chance. At about 2:45 A.M., when DSP Major Singh was talking to Superintendent Customs Sh. K.S. Dhaliwal, a tractor bearing registration No. PAA-9259, blue colour, was seen coming from the side of Pakistan to the Behak of Ghasita Singh. DSP Major Singh flashed search light at the tractor and signalled it to stop. In the search light every police personnel of P.S. Lopoke saw Ghasita Singh and Sukhwinder Singh on the tractor. Ghasita Singh was driving the tractor while Sukhwinder Singh @ Sukha s/o Santa Singh was sitting on the bags placed on the lift of the tractor. DSP Major Singh flashed search light at the tractor and signalled it to stop. In the search light every police personnel of P.S. Lopoke saw Ghasita Singh and Sukhwinder Singh on the tractor. Ghasita Singh was driving the tractor while Sukhwinder Singh @ Sukha s/o Santa Singh was sitting on the bags placed on the lift of the tractor. Ghasita Singh and Sukhwinder Singh @ Sukha took advantage of darkness and as search light was flashed on them, they ran away through the crops leaving behind the tractor there. Police personnel of P.S. Lopoke had known Ghasita Singh and Sukhwinder Singh @ Sukha since before and they had seen them quite vividly. They succeeded in running away, although the police and Customs officials tried to apprehend them. The police and the Customs officials searched the tractor. Three gunny bags were found lying on the lift of the tractor. Mouth of the each gunny bag was tied with Seba (Rassi). When those gunny bags were opened, they were found to contain 35 packets each of heroin, totalling 105 packets. Those packets were lying sewn with special cloth. Each packet was opened and was found to contain heroin (brown sugar) weighing 1 kg. In this manner, total heroin recovered was weighing 105 Kg. Out of each packet, three samples each weighing 10 grams were taken out. In this manner, 315 samples were drawn out of 105 packets of heroin. Each sample was made into a parcel which was sealed with seal of DSP Major Singh bearing impression `MS. It was sealed with customs seal impression `144, which had been provided by Sh. K.S. Dhaliwal to DSP Major Singh. Rest of the heroin was allowed to remain in each of the said packets. Each of those packets were similarly sealed and made into parcel. All these packets, samples, empty gunny bags, tractor No. PAA-9259 were taken into possession vide memo Exhibit PC attested by the PWs. Rough site plan Exhibit PE was prepared at the spot with correct marginal notes. Each of those packets were similarly sealed and made into parcel. All these packets, samples, empty gunny bags, tractor No. PAA-9259 were taken into possession vide memo Exhibit PC attested by the PWs. Rough site plan Exhibit PE was prepared at the spot with correct marginal notes. Ruqa Exhibit PD was sent to the Police Station for registration of the case against the accused under Sections 411/414 of Indian Penal Code, Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Section 3 of the Officials Secret Acts and Section 11 of the Customs Act, on the basis of which case FIR No. 238 was registered on 11.11.1987 at P.S. Lopoke. Sample were sent to the Chemical Examiner and the Chemical Examiner reported vide report Exhibit PM/PN and found that each of the 105 samples was in the form of brown powder. Each sample answered test for the presence of diacetyle morphine and thus was covered under the Narcotic Drugs and Psychotropic Substances Act, 1985. Both the accused were arrested. 3. After investigation, Sukhwinder Singh @ Sukha was challaned, Ghasita Singh was since dead. 4. Vide order dated 19.11.1991, Sukhwinder Singh @ Sukha was charged under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the Additional Sessions Judge, Amritsar. He pleaded not guilty to the charge and claimed trial. 5. On the conclusion of the trial, Sukhwinder Singh @ Sukha was convicted and sentenced, as noted above, by the learned Additional Sessions Judge, Amritsar. 6. I have heard the learned counsel for the appellant, learned Deputy Advocate General for the State of Punjab and have gone through the records. 7. It was submitted by the learned counsel for the appellant that the identity of the appellant remains unestablished as he was not apprehended at the spot. As per the prosecution, he ran away and could not be apprehended. Sh. K.S. Dhaliwal, Superintendent Customs, PW4 who was one of the members of the Nakabandi party, has stated that they noticed a tractor approaching from the side of Pakistan. Major Singh, DSP got stopped the tractor by signalling it to stop. Tractor was being driven by one person and the other person was sitting on the mudguard. Both of them ran away and escaped under the cover of darkness. DSP Major Singh identified both of them. Major Singh, DSP got stopped the tractor by signalling it to stop. Tractor was being driven by one person and the other person was sitting on the mudguard. Both of them ran away and escaped under the cover of darkness. DSP Major Singh identified both of them. He stated that he himself had not known them before and he did not identify those persons. DSP Major Singh told him that one of them was Ghasita Singh and the name of other was not told to him. He insisted upon Major Singh, DSP to disclose him the name of the other person who had escaped but he did not disclose him his name. It was submitted that Sh. K.S. Dhaliwal, Superintendent Customs, PWQ-4 had thus not identified Sukhwinder Singh @ Sukha. Sukhwinder Singh @ Sukha was not put up at test identification parade. Suffice it to say, ASI Gurbachan Singh, PW-6, who was posted at P.S. Lopoke and was one of the members of this Nakabandi party, stated that on the night intervening dated 11/12.11.1987, he was with Major Singh, DSP, SI Gajjan Singh and some other police officials. They laid naqa at Udhar Dhariwal at about 2:30 A.M. Sh. K.S. Dhaliwal, Superintendent Customs along with officials of the Customs Department reached there while Major Singh, DSP and Sh. K.S. Dhaliwal talking with each other at about 2:45 A.M., a tractor came from the side of Indo-ak Border. When tractor reached near them, DSP Major Singh flashed search light signalling the driver of the tractor to stop. Tractor was being driven by Ghasita Singh and Sukhwinder Singh @ Sukha was sitting on the gunny bags lying on the lift of the tractor. On seeing the Nakabandi party, Ghasita Singh and Sukhwinder Singh ran away leaving the tractor there. He has identified both of them at that time. He further stated that he has known Sukhwinder Singh @ Sukha facing trial in Court as he used to visit P.S. Lopoke. SI Gajjan Singh, SHO P.S. Ramdas PW-7 stated that on 11.11.1987, he was present in the Office of DSP Ajnala in connection with some official work when he was taken along by DSP Major Singh together with ASI Sham Singh etc. 8. In cross-examination, ASI Gurbachan Singh, PW-6 has stated that he had been posted at P.S. Lopoke before the recovery. During this period, Sukhwinder Singh had met thrice in P.S. Lopoke. 8. In cross-examination, ASI Gurbachan Singh, PW-6 has stated that he had been posted at P.S. Lopoke before the recovery. During this period, Sukhwinder Singh had met thrice in P.S. Lopoke. He had told him his name and also that he belongs to Village Udhar Dhariwal. 9. From the statement of ASI Gurbachan Singh PW6, it is quite clear that he had known Ghasita Singh and Sukhwinder Singh alias Sukha before and he had identified them clearly in search light. SI Gajjan Singh, SHO, PS Ramdas PW7 stated that on 11.11.87, he was posted as SHO, PS Ramdas. That they, he was present in the office of Shri Major Singh, DSP, Ajnala in connection with official dealing. DSP Major Singh along with some other police officials took him to PS Lopoke from where ASI Gurbachan Singh, ASI Sham Singh and other police officials were taken along and reached village Udhar Dhariwal on the information received from SSP, Amritsar. They laid naka near the village Udhar Dhariwal near the behak of Ghasita Singh at a distance of one furlong towards Pakistan Border on kucha rasta. Around 2.30 AM, a tractor bearing registration No. PAA-9259 make Swaraj which was of white blue colour came from Pakistan side. K.S. Dhaliwal flashed torch light and DSP Major Singh flashed search light towards tractor signalling it to stop. One who was driving the tractor and the one who was sitting on the gunny bags placed on the lift of the tractor ran away. Ghasita Singh was driving the tractor while Sukhwinder Singh alias Sukha accused was sitting on the gunny bags put on the lift of the tractor. He then went on and stated about the recovery of heroin weighing 105 kgs. in 105 packets. He had thus specifically named that they were Ghasita Singh and Sukhwinder Singh alias Sukha. It was not suggested to him in cross examination how he had known that they were Ghasita Singh and Sukhwinder Singh alias Sukha. They were not put up at test identification parade during investigation. It was thus imperative for the defence to suggest to SI Gajjan Singh PW7 how he had known that they were Ghasita Singh and Sukhwinder Singh. There can, thus, be no manner of doubt that it was Sukhwinder Singh alia Sukha who had run away from the spot leaving tractor loaded with 105 kgs. of heroin. 10. It was thus imperative for the defence to suggest to SI Gajjan Singh PW7 how he had known that they were Ghasita Singh and Sukhwinder Singh. There can, thus, be no manner of doubt that it was Sukhwinder Singh alia Sukha who had run away from the spot leaving tractor loaded with 105 kgs. of heroin. 10. It was submitted by the learned counsel for the appellant that DSP Major Singh had laid naka on receipt of secret information. It was submitted that if that was so, he should have reduced that information into writing and sent a copy thereof to his immediate superior. In State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 736 (SC), the Honble Supreme Court held as follows :- "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." Honble Supreme Court further observed as follows : "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 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." 11. It was submitted that the officer who receives any information of the commission of an offence under the Act should necessarily take down the information in writing and send the same forthwith to his immediate officer superior. Non compliance of this provision would vitiate the trial. It was submitted that the officer who receives any information of the commission of an offence under the Act should necessarily take down the information in writing and send the same forthwith to his immediate officer superior. Non compliance of this provision would vitiate the trial. Such provisions contained in this regard in section 42(1) and 42(2) of the Act are mandatory. 12. In State of Punjab v. Gurjit Singh, 2000(4) RCR(Crl.) 420, a Division Bench of this court held that where the investigating officer did not take down the information in writing and no intimation was sent by him to his superior officer as required under Section 42, which is mandatory, the accused has to be acquitted. In State of Punjab v. Balbir Singh (supra), the provisions of section 42 were held to be mandatory, non compliance thereof will vitiate the trial. Sub-section (2) of section 42 of the Act envisages that where an information has been received by the police with regard to the fact that a narcotic could be recovered from any building or conveyance, this information has to be taken down in writing and sent forthwith by the police officer who had taken down the information to his immediate superior officer. In State of Punjab v. Balbir Singh (supra), the Honble Supreme Court has observed that the object of the NDPS Act is to make stringent provisions 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 content have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same into writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to section 42(1). To that extent, they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. In para 27, the Honble Supreme Court has observed that "under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. To that extent, they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. In para 27, the Honble Supreme Court has observed that "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 provisions 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. 13. Honble Supreme Court further observed as follows : "Under section 42(1) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith sent a copy thereof to his immediate official superior. 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." 14. In this case, however, these provisions do not come in as the information was already with SSP, Amritsar. It was under his orders that DSP, Ajnala organised a raiding party and laid naka. At the place of naka at about 2.30 AM on 11/12.11.87, K.S. Dhaliwal, Superintendent, Customs (Preventive) Amritsar along with party came and they were also joined. If SSP, Amritsar felt the information to be reliable, he ordered DSP Major Singh to lay naka for intercepting people smuggling gold, opium, arms, ammunition, heroin etc. from Pakistan side entering India with arms, ammunition, opium, etc. DSP Major Singh could not be examined at the trial as he was since dead. If SSP, Amritsar felt the information to be reliable, he ordered DSP Major Singh to lay naka for intercepting people smuggling gold, opium, arms, ammunition, heroin etc. from Pakistan side entering India with arms, ammunition, opium, etc. DSP Major Singh could not be examined at the trial as he was since dead. SI, SHO PS Ramdas Gajjan Singh PW7 stated that this naka was laid by DSP Major Singh on the night intervening 11/12.11.87 in the area of village Udhar Dhariwal near Pakistan Border on the information received by SSP, Amritsar passed on to Major Singh, DSP Ajnala. It was submitted by the learned counsel for the appellant that on 12.11.87, the police of PS Lopoke had recovered 122 kgs. of heroin from unknown place. Out of 122 kgs. of heroin, 105 kgs. was planted on the accused and 17 kgs. heroin was misappropriated by ASI Gurbachan Singh and ASI Sham Singh about which the SSP, Amritsar held an inquiry. It was submitted that Kabul Singh DW6 and Shingara Singh DW2 produced Sukhwinder Singh on 24.11.87 before Major Singh DSP, Ajnala. It was submitted that 17 kgs. of heroin was also planted on Ghasita Singh and Sukhwinder Singh alia Sukha. In that behalf FIR No. 255 of 1987 was registered at PS Lopoke in which he was acquitted by the High Court. 15. Defence version cannot be believed as why should such a heavy quantity of heroin have been planted upon the accused when there was no animus with DSP Major Singh. It was submitted that ASI Gurbachan Singh was dismissed from service by SSP, Amritsar vide order Ex.DC because he was reported to be in league with bad elements and smugglers of Amritsar District and he had been working for them in the collection of money as well as indulging in smuggling activities. If ASI Gurbachan Singh was dismissed form service on account his being in league with bad elements and smugglers, that does not mean that heroin weighing 105 kgs. was planted upon the accused. For the reasons given above, this appeal fails and is dismissed.