JUDGMENT 1. - Appellant was the accused on the file of learned Additional Sessions Judge, Nagaur bearing Sessions Case No. 53/2000. Learned Additional Sessions Judge vide judgment dated December 3, 2001 convicted and sentenced the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act, 1985) to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-; in default, to further suffer rigorous imprisonment of six months. 2. The prosecution story is woven like this. On August 29, 2000 on receiving the secret information M.S. Acharya, Superintendent proceeded to 10 the spot and apprehended the appellant who was driving the scooter and one person Bhola Ram was sitting on the rear seat. On being searched, opium weighing 1.9 Kgs found lying in the dickey of the scooter. Appellant and Bhola Ram were arrested and after usual investigation charge-sheet was filed. In due course, the case came up for trial before the learned Additional Is Sessions judge, Nagaur Charge under Section 8/18 of the N.D.PS. Act was framed against the appellant who denied the charge and claimed trial. The prosecution in support of its case examined as many as 11 witnesses and got exhibited 26 documents. In the explanation under Section 313 Cr.PC. appellant claimed innocence. Two witnesses in defence were examined. Learned trial Judge, on hearing the final submissions convicted and sentenced the appellant as indicated above and acquitted the co-accused Bhola Ram. 3. Only contention advanced before me by the learned Amicus Curiae is that mandatory provisions contained in sub-section (2) of Section 42 of the N.D.P.S. Act have been flouted in the case and, therefore, search is vitiated. Reliance is placed on Bhikam Singh & Others v. The State of Rajasthan, 2001 (3) WLC (Raj.) 460 and Laxmi v. State of Rajasthan, 2003 (1) R Cr D 290 (Raj.) . 4. Per contra, Mr. J.P. Singh Choudhary, learned Public Prosecutor supported the impugned judgment and urged that appellant was rightly convicted and sentenced. 5. Admitted facts of the instant case are that secret information was received on August 29, 2000 and on the basis of the said information, the prosecuting party proceeded to the spot. Anil Ojha (PW1) in his deposition stated that on receiving the secret information, he along with members of the team proceeded to the spot and arranged Naka Band'. 5. Admitted facts of the instant case are that secret information was received on August 29, 2000 and on the basis of the said information, the prosecuting party proceeded to the spot. Anil Ojha (PW1) in his deposition stated that on receiving the secret information, he along with members of the team proceeded to the spot and arranged Naka Band'. In his statement he did not say that he forwarded the secret information to his superior officials. No document has been placed on record which could suggest that provisions incorporated in Sub-section (2) of Section 42 of the N.D.PS. Act have been complied with. Although, after conducting the search, intimation under Section 57 of the N.D.PS. Act was forwarded to the Superintendent. Customs, Jodhpur Camp at Nagaur on August 30, 2000 vide Exhibit P-8, no attempt was made to send a copy of information recorded under sub-section (1) of Section 42 to his immediate official superior by Anil Ojha (PW1). 6. At this juncture, I deem it appropriate to refer sub-section (2) of Sec ion 42 which read as under:- "(2) Where an officer takes down any information in writing under sub-section (1) or records ground for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof 10 s his immediate official superior." 7. Section 42 of the N.D.P.S. Act has been held mandatory by their Lordships of Supreme Court in series of cases. in State of Punjab v. Balbir Singh, AIR 1994 SC 1872 , their Lordships of Supreme Court indicated that under Section 42(2) of the N.D.P.S. Act, such empowered officer who takes to down any information in writing or records the grounds under proviso to section 42(1) has to forthwith send a copy to his immediate official superior. If there is total non compliance of this provision, the same affects the prosecution case and to that extent it is mandatory. 8. If there is total non compliance of this provision, the same affects the prosecution case and to that extent it is mandatory. 8. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (1) Crimes 198 (SC) , their Lordships of the Supreme Court observed as under:- "If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or Psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless, the resultant position would be one of causing prejudice to the accused." 9. As already noticed, in the instant case, non compliance of sub-section (2) of Section 42 of the N.D.PS. Act is evident which goes into the root of the matter. Since, the learned trial Judge has failed to appreciate the provisions contained in sub-section (2) of Section 42, conviction of the appellant under Section 8/18 of the N.D.PS. Act is not sustainable. 10. For these reasons, I allow the appeal and set aside the judgment dated December 3, 2001 of the learned Additional Sessions Judge, Nagaur. I acquit the appellant of the charge under Section 8/18 of the N.D.PS. Act. The appellant, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeal Allowed - Conviction Set Aside. *******