( 1 ) THIS is an appeal preferred by the sole accused in Special s. C. No. 102 of 2000 on the file of the special Court under Narcotic Drugs and psychotropic Substances Act Cases-cum-I Additional Sessions Judge, Cuddapah. He was charge-sheeted for an offence punishable under Section 20 (b) (l) of the Narcotic drugs and Psychotropic Substances Act, 1985 (for short the Act ) for allegedly carrying ganja . ( 2 ) THE case of the prosecution is briefly as follows: ( 3 ) ON 15-11-2000 at about 4 p. m. , p. W. 3, the Sub-Inspector of Police, muddanuru, along with P. W. I, the Village administrative Officer, and P. W. 2, Mandal revenue Officer, Muddanuru and Police constables went in a private jeep to seltivaripalii Village Bus Stop situated on muddanuru-Tadipatri Main Road at about 4-55 p. m. On seeing them the accused, who was sitting in a choultry with white plastic gunny bag tried to run away. P. W. 3 with the help of his staff caught hold of the accused and on opening the white plastic gunny bag in the presence of P. Ws. l and 2 he found ganja plants, stems, and stalks with flowering of a weight of 2 Kgs. On interrogation the accused revealed his identity and stated that he raised four ganja plants at his chilly garden and he was taking the material of the plants for sale at Tadipatri Town and was waiting for a bus. P. W. 3 arrested the accused at 5 p. m. , and seized the ganja in the presence of p. Ws. l and 2 by observing necessary procedure. He collected sample from it and sent the same to the Forensic Science laboratory, Kurnool for analysis. The analyst opined that the sample is ganja . P. W. 3 after completion of the investigation laid the charge-sheet. ( 4 ) THE Special Court after the appearance of the accused framed a charge under Section 20 (b) (l) of the Act to which the accused denied the same and claimed for trial. The prosecution in order to prove the guilt of the accused examined p. Ws. l to 3, marked Exs. P. l to P. 4 and m. O. 1-ganja. No oral evidence was adduced on defence side, but Ex. D. 1 was marked. The prosecution in order to prove the guilt of the accused examined p. Ws. l to 3, marked Exs. P. l to P. 4 and m. O. 1-ganja. No oral evidence was adduced on defence side, but Ex. D. 1 was marked. The Special Court after considering the evidence placed by the prosecution found the appellant guilty of the offence under section 20 (b) (I) of the Act, convicted and sentenced him to undergo imprisonment for a period of one year and also to pay a fine of Rs. 1,000/-, in default to suffer imprisonment for three months. The appellant being aggrieved by the judgment of the Special Court dated 25-1-2002 preferred this appeal challenging its validity and legality. ( 5 ) THE prosecution alleged that the appellant was caught at the Muddanurutadipatri bus Stop while carrying ganja weighing 2 kgs. in a white plastic gunny bag and they seized the same in the presence of mediators under the cover of panchanama. The appellant denied the story of the prosecution and contended that while he was at his house the appellant took him to the Police Station and filed this case. In the light of the contentions of the respective parties, the point for consideration is: whether the prosecution proved the guilt of the appellant beyond reasonable doubt and whether he is entitled for acquittal as prayed for ? point: ( 6 ) P. W. 3 stated that on 15-11-2000 at about 4 p. m. , he received information and proceeded to Settivaripalli Village bus Stop situated at Muddanuru-Tadipatri main road at about 4-55 p. m. along with p. Ws. 1 and 2 and Police Constables and on reaching that place when the appellant tried to escape, they caught hold of him and on examination of the contents of a plastic white gunny bag being carried by the appellant, they found ganja weighing 2 Kgs. and seized the same in the presence of P. Ws. 1 and 2, took a sample to send the same to the Chemical Analyst, Kurnool for analysis and after receipt of the report of the analyst confirming that it is ganja he laid the charge-sheet. ( 7 ) P. W. I, the then Village administrative Officer, Muddanuru deposed that he knows the accused. 1 and 2, took a sample to send the same to the Chemical Analyst, Kurnool for analysis and after receipt of the report of the analyst confirming that it is ganja he laid the charge-sheet. ( 7 ) P. W. I, the then Village administrative Officer, Muddanuru deposed that he knows the accused. On 15-11-2000 while he was at M. R. O s Office along with p. W. 2, P. W. 3 came to him and requested p. W. 2 and himself to follow him. Accordingly they proceeded along with p. W. 3 in a jeep and reached Settivaripalli, which is 12 Kms. , away from Muddanuru. On seeing the police the accused tried to run away from the choultry. The police caught hold of the accused and brought him along with urea bag to the jeep. P,w. 3 searched the bag and found ganja. The police had taken some ganja for sample. The said sample was properly sealed and labelled, and a panchanama to that effect was also drafted by one of the constables and he attested Ex. P. l - panchanama along with P. W. 2. ( 8 ) P. W. 2, the then Mandal Revenue officer, Muddanuru deposed that on 15-11-2000 P. W. 3 requested him to follow. He along with P. W. I went in a jeep along with P. W. 3 and others. They reached a bus stop and on seeing the jeep the accused tried to run away. The police caught hold of him and brought him back. The accused was carrying a urea bag. The police interrogated him and opened the bag. He found 2 Kgs. ganja in the bag with flowers and stems, The police took some ganja for sample purpose and sealed the sample and labelled it properly. A panchanama covered by Ex. P. l was also drafted at the scene of offence and he signed the said panchanama. The accused also signed on it. The police explained about his designation to the accused. ( 9 ) P. W. 3, the Sub-Inspector of Police also reiterated what P. Ws. l and 2 stated. He further stated that after taking the sample from the gunny bag he affixed the seals and labels to the sample for sending the same to the Forensic Science Laboratory, kurnool for analysis. ( 9 ) P. W. 3, the Sub-Inspector of Police also reiterated what P. Ws. l and 2 stated. He further stated that after taking the sample from the gunny bag he affixed the seals and labels to the sample for sending the same to the Forensic Science Laboratory, kurnool for analysis. He arrested the accused at the same time and sent him for remand on the next day. ( 10 ) EX. P. 1 is the panchanama for seizure of the ganja and arrest of the accused. In the said panchanama P. Ws. 2 and 3 acted as mediators. P. W. 3 and accused also signed on it. In the said panchanama it was mentioned that when they reached settivaripalli Bus Stop they noticed one person who was sitting at the choultry running away. P. W. 3 and his men chased him and caught hold of him and brought him back to the choultry along with the bag. P. W. 3 enquired the particulars of the accused in their presence. The accused disclosed his name, age and village. When P. W. 3 asked the accused as to what is in the bag, the accused shivered and told them that he was carrying ganja, stems and leaves with flowers. He further stated that he raised mirchi crop in an extent of Ac. 3-25 cents in S. No. 918 of settivaripalli Village and also planted four ganja plants. Three days back he plucked the plants, dried in the mirchi crop and was bringing to Tadipatri for sale to get some money from it. He further stated that he brought ganja seeds from Sadhus of mangapatnam Railway Station who were acquainted to him and he wanted to sell ganja through his friend at Tadipatri. It is further mentioned that they searched the white plastic gunny bag and found half dried and half undried ganja planst, stems with flowers of a weight of 2 Kgs. P. W. 3 took some leaves with stems of the plants from the bag in the presence of P. Ws. l and 2 for sample and kept in a plastic cover and sealed the cover with matchsticks. Later P. W. 3 took the accused to custody and seized the ganja. ( 11 ) EX. P. 4-ANALYST report discloses that the sample contained ganja plants. On the basis of the above evidence the lower Court convicted the appellant. l and 2 for sample and kept in a plastic cover and sealed the cover with matchsticks. Later P. W. 3 took the accused to custody and seized the ganja. ( 11 ) EX. P. 4-ANALYST report discloses that the sample contained ganja plants. On the basis of the above evidence the lower Court convicted the appellant. ( 12 ) THE learned Counsel for the appellant submitted that the samples were not sealed properly at the time of seizure and P. W. 3 who alleged to have received the information over telephone did not put it to writing and that there is delay in sending the sample to the Court and the prosecution failed to comply the provisions of Sections 42 and 57 of the Act. He further submitted that the prosecution did not place any material to show whether the accused was questioned, whether he is inclined to be examined in the presence of a Gazetted Officer or a Magistrate, therefore, the accused is entitled for acquittal. The learned Counsel also placed reliance on certain judgments of the Supreme Court and this Court. ( 13 ) BEFORE examining the issue whether the trial of the accused is vitiated due to non-compliance of certain provisions of the Act, and the case-law on the subject, i wish to examine the relevant provisions of the Act. ( 14 ) SECTION 42 of the Act enumerates about the power of entry, search, seizure and arrest of a person without warrant or authorization. Section 50 speaks about the conditions under which a search of a person shall be conducted and 57 articulates about the procedure for sending the report of arrest and seizure to the superior officers. Sections 42, 50 and 57 of the Act reads as follows: 42. Section 50 speaks about the conditions under which a search of a person shall be conducted and 57 articulates about the procedure for sending the report of arrest and seizure to the superior officers. Sections 42, 50 and 57 of the Act reads as follows: 42. Power of entry, search, seizure and arrest without warrant or authorization : (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, Narcotics, customs, Revenue, Intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs Control, excise, Police or any other department of a state Government as is empowered in this behalf by general or special order of the state Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psycho tropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under chapter V-A of this Act; and (d) detain and search, and, if he thinks proper arrest any person whom, he has reason to believe to have committed any offence punishable under this Act: provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) 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 within seventy-two hours send a copy thereof to his immediate official superior. 50. Conditions under which search of persons shall be conducted: (1) When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1 ). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or magistrate, proceed to search the person as provided under Section 100 of the Code of criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. " 57. Report of arrest and seizure. whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. ( 15 ) UNDER Section 50 the search of the person has to be made in the presence of a Gazetted Officer or a Magistrate. ( 15 ) UNDER Section 50 the search of the person has to be made in the presence of a Gazetted Officer or a Magistrate. In the present case, P. W. 3, the Sub-Inspector of Police went along with P. W. 2, the mandal Revenue Officer, a Gazetted Officer, but the evidence of P. W. 2 does not disclose whether the accused was informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate and there is no mention in the evidence of P. W. 2 that he was introduced to the accused as a gazetted Officer and whether he has any objection to be searched in his presence. P. W. 3 also stated that he opened the gunny bag in the presence of P. Ws. l and 2 and on finding the contents as ganja , seized it in their presence. He alleged to have seized m. O. I- ganja from the possession of the appellant, but P. W. 3 has categorically stated that M. O. I does not contain the signatures of P. Ws. l, 2 and himself. In Ex. P. 1-pancbanama also there is no mention whether the appellant was informed about his right to be searched in the presence of a gazetted Officer or a Magistrate or whether he has any objection to be searched in the presence of P. W. 2, a Gazetted Officer. In the absence of such material it has to be held that on account of the non-compliance of Section 50 of the Act, the conviction of the appellant is not sustainable. ( 16 ) THE learned Counsel for the appellant also contended that there is delay in sending the sample to the analyst for analysis. The samples were taken on 15-11-2000. P. W. 3 sent the property to the learned Magistrate on 16-11-2000 with a request to send the same to the analyst for analysis. The Special Court sent the same to the Chemical Examiner on 2-12-2000 and the report was prepared by the Chemical examiner on 4-12-2000. The samples were taken on 15-11-2000. P. W. 3 sent the property to the learned Magistrate on 16-11-2000 with a request to send the same to the analyst for analysis. The Special Court sent the same to the Chemical Examiner on 2-12-2000 and the report was prepared by the Chemical examiner on 4-12-2000. As seen from the above sequence of events, there is no delay on the part of the Investigating Officer in sending the sample to the Chemical examiner and as the sample is not a perishable item, the delay, if any, occurred at the instance of the Special Court will not in any way prejudice the appellant, therefore, 1 do not find any force in the contention of the learned Counsel for the appellant that there was delay in sending the sample to the Court. ( 17 ) THE learned Counsel for the appellant contended that the Investigating officer failed to comply Section 57 of the act by not sending the report to his superior officers within 48 hours from the date of seizure of the contraband and arrest of the appellant. ( 18 ) THOUGH a crime was registered on the basis of the panchanama, no material was placed by P. W. 3 to show that any report was sent to the superior officers regarding the seizure of ganja and arrest of the appellant. The absence of such report is a clear indication that P. W. 3 failed to comply the requirements of Section 57 of the Act, therefore, the trial is vitiated on this count also. ( 19 ) THE learned Counsel for the appellant submitted that according to P. W. 3, on receipt of information he secured the presence of P. Ws. l and 2 and proceeded to the scene of offence and arrested the appellant after searching his person and seizing ganja. He specifically stated in his chief-examination that while he was at his station at about 4 p. m. , on 15-11-2000 he received information over telephone, therefore, submitted that the failure of P. W. 3 to record the said information and forwarding it immediately to. , a superior officer is a contravention of Section 42, therefore the appellant is entitled to be acquitted. , a superior officer is a contravention of Section 42, therefore the appellant is entitled to be acquitted. The learned Counsel placed reliance on a decision of the Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872 , wherein the Supreme Court observed as follows: (2-C) 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. ( 20 ) IN the case on hand, P. W. 3 did not state whether he kept the information in writing and whether he sent any report to the higher officials about the information he received. In the absence of such material, the trial must be held to have been vitiated and the conviction must be held to be unwarranted. The learned Special Judge without answering these questions arrived at a conclusion that the offence against the appellant is proved. In the light of the above discussion, I find sufficient force in the submissions made by the learned Counsel for the appellant and therefore inclined to set aside the judgment of the Special Court dated 25-1-2002. ( 21 ) IN the result, the appeal is allowed. The conviction of the appellant for the offence under Section 20 (b) (l) of the Act and the sentences imposed on him are set aside. If the appellant is in jail, he shall be set at liberty forthwith, if he is not required in any other crime.