JUDGMENT 1. - This is an appeal under Section 374(2) Cr.P.C. against the judgment and order dated 28.7.2008 passed by the Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 75/2006 vide which, the appellants have been convicted for the offences under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act (for short, the NDPS Act') and sentenced them to undergo rigorous imprisonment for ten years with a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo one year rigorous imprisonment. 2. Background facts in a nutshell are as follows: 3. On 15.12.2005 at about 8.10 pm., the S.H.O. Police Station, Karda, Bhabhoot Singh, received secret information that Hira Ram S/o Punmaji, by caste Gaur, resident of Kotda, at present Raniwada is since long carrying on the activity of bringing Poppy Husk from Mewar and selling it at Kotda and nearby places. On the said day, he was likely to come on the tractor attached with a water tank filled with Poppy Husk on the Sirohi Road and just little while ago, he had passed from Raniwada to Sewara, Sanchore. The said information was reduced in writing and sent to C.O. Bhinmal and one copy also sent to Superintendent of Police, Jalore through special messenger. Two independent witnesses were summoned and after completing the formalities, at about 8.30 pm. S.H.O. Bhaboot Singh proceeded in the official Jeep along with other police officials. As per the said secret information, at about 8.50 pm., one tractor to which a water tank was attached, came from the side of Raniwada. Accordingly, it was stopped by the police. Two people were sitting on the tractor. On asking, the person sitting on the driver seat told his name Rughnath S/o Ladu Ram Bishnoi Siyag. The name of the person sitting next to him was stated to be Sukhram S/o Jetaji Jagu. On search, 19 bags filled with 22 kgs. of Poppy Husk in each bag and 7 bags filled with 20 kgs. Poppy Husk in each bag were recovered inside the water tank. Thus, 552 kgs. of Poppy Husk was recovered. The matter was investigated. Charge-sheet was filed and evidence was led. On the basis of same, the appellants were convicted under Section 8/15 of the NDPS Act and sentenced to 10 years Rigorous Imprisonment with fine of Rs. Poppy Husk in each bag were recovered inside the water tank. Thus, 552 kgs. of Poppy Husk was recovered. The matter was investigated. Charge-sheet was filed and evidence was led. On the basis of same, the appellants were convicted under Section 8/15 of the NDPS Act and sentenced to 10 years Rigorous Imprisonment with fine of Rs. 1 lac and in default of payment of fine, the appellants were ordered to undergo another one year Rigorous Imprisonment. Aggrieved, the present appeal has been filed. 4. The only argument raised in the present appeal is that the mandatory provisions of Section 42 of the NDPS Act have not been complied with. It was contended that as per Section 42, if an officer empowered to enter, search, seizure and arrest, has reason to believe from his personal knowledge or is given information by any person, he is required to record the same in writing and thereafter, send a copy to his immediate officer superior within seventy two hours. In the present case, the report Exhibit-1 was duly written and also sent to Superintendent of Police. However, if such an officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence, he may enter and search such building but he is required to record the reasons for doing so and especially if the said search is between the sunrise and sunset. Such reasons recorded are also required to be sent to the officer superior within seventy two hours. Admittedly, the search was after sunset. The reasons were recorded vide Exhibit-22 but was never sent to Superintendent of Police. As such, there was total non-compliance of Section 42 of the NDPS Act. Reliance was placed on the judgments rendered by the Hon'ble Apex Court in the cases of Sukhdev Singh v. State of Haryana (Criminal Appeal No. 2118 of 2008) decided on 13.12.2012 , Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in AIR 2000 SC 821 , Karnal Singh v. State of Haryana, reported in 2009 CrI.L.J. 4299 to contend that sending information to the superior officer was mandatory and non-compliance of the same has caused prejudice to the accused. 5. Learned counsel for the State however, while supporting the judgment of the court below submitted that Section 42 does not apply to the facts of the present case. 5. Learned counsel for the State however, while supporting the judgment of the court below submitted that Section 42 does not apply to the facts of the present case. The recovery was from a public place and in transit, therefore, Section 43 is applicable. As such, there was no requirement to comply with Section 42 of the NDPS Act. 6. Thus, one of the issue that requires to be decided in the present case is as to whether Section 42 was required to be complied with in the facts of the present case or not and whether section 43 was applicable. 7. The SHO, Bhabhoot Singh was examined as PW-6. He admitted that the recovery was after sunset. He further admitted that the information was reduced in writing as Exhibit-22 but was not sent to the senior officer. Exhibit P-1 is the document vide which, secret information was reduced in writing as per Section 42(1). Same was sent to the senior officer. Exhibit-22 is the document regarding reasons why there was an urgency and how there was no time to obtain the search warrant or authorisation as required by the proviso to sub-section (1) of Section 42. However, same was not sent to the immediate officer superior, as required under Section 42(2). 8. The facts in the present case are not disputed. Section 42 of the NDPS Act reads as under:- 42. Power of entry, search, seizure and arrest without warrant or authorisation. However, same was not sent to the immediate officer superior, as required under Section 42(2). 8. The facts in the present case are not disputed. Section 42 of the NDPS Act reads as under:- 42. Power of entry, search, seizure and arrest without warrant or authorisation. - (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 para-military 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic 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 VA 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 VA 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 authorisation 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. 9. A perusal of the Section 42 shows that the requirement to be complied with as envisaged are- (a) When the police officer has secret information, he is required to reduce the said information in writing; (b) He should send the said report forthwith to his immediate officer superior. (c) In case the police officer has reason to believe that there is no time to seek search warrant or authorisation, and the said search is after sunset and before sunrise, reasons are required to be reduced in writing; (d) The said reasons too, are required to be sent to the senior officer superior. 10. In the present case, requirement of (a), (b) and (c) has been complied with. However, (d) i.e. sending the reasons to the officer superior under Section 42(2) has not been complied with. 11. The issue as to whether Section 42 or 43 of the NDPS Act is applicable in the facts of the present case stands settled by the Apex Court in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in AIR 2000 SC 821 . In the said case, information was received by the police that accused was carrying charas in his vehicle, and it was held in para 14 as under:- "In this case PW 2 admitted that he proceeded to the spot only on getting the information that somebody was trying to transport narcotic substance. When he was asked in cross-examination whether he had taken down the information in writing he had answered in the negative. Nor did he even apprise his superior officer of any such information either then or later, much less sending of copy of the information to the superior officer. However, learned Counsel for the respondent - State of Gujarat - contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information. However, learned Counsel for the respondent - State of Gujarat - contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information. We are unable to appreciate the argument because, in this case, PW-2 admitted that he proceeded on getting prior information from a constable and the information was precisely one falling within the purview of Section 42(1) of the Act. Hence PW 2 cannot wriggle out of the conditions stipulated in the said sub-section. We, therefore, unhesitatingly hold that there was noncompliance with Section 42 of the Act." 12. The said judgment was referred to a larger Bench in the case of Karnal Singh v. State of Haryana, reported in 2009 CRI.L.J. 4299 in view of the judgment rendered by the Apex Court in the case of Sajan Abraham v. State of Kerala, reported in (2001) 6 SCC 692 . The larger Bench of the Apex Court held that the said judgment did not clearly lay down a different proposition of law and observed as under:- "10. We may note that Abdul Rashid followed State of Punjab v. Balbir Singh 1994 (3) SCC 299 . We extract below the passage that was followed: "(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. 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. (3) 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 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. Abdul Rashid was followed in Koluttumottil Razak v. State of Kerala 2004 (4) SCC 465 , which was also a case of total non-compliance with Section 42, as the Sub-Inspector of Police neither reduced the information received into writing nor informed the official superior about it." 17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in Sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of Subsections (1) and (2) of Section 42 is impermissible,delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 13. Applying the test in the present case, the police officer received the secret information. He received the said information while he was in the police station. The search was conducted after sunset and before sunrise. As such, Section 42 is applicable. Section 43 would be applicable in a case of chance recovery or in case, the information was received when the officer was not in police station but while he was on move either on patrol duty or otherwise. 14. The search was conducted after sunset and before sunrise. As such, Section 42 is applicable. Section 43 would be applicable in a case of chance recovery or in case, the information was received when the officer was not in police station but while he was on move either on patrol duty or otherwise. 14. With respect to the issue as to whether there was compliance of Section 42 in the facts of present case wherein the reasons for not taking authorisation was reduced in writing Vide Exhibit-22 but were not sent to the Superintendent of Police, also stands settled by the Apex Court in the case of Sukhdev Singh v. State of Haryana (Criminal Appeal No. 2118 of 2008) decided on 13.12.2012. In the said case, the police officers were present in connection with patrolling duty when they received the secret information. Even in those circumstances, the Court held that the provision of Section 42 should have been complied with. Para 21 and 22 of the said judgment reads as under:- 21. As per the statement of PW1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the Investigating Officer PW 1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the accused at 2 p.m. even when the distance was only 6 kilometers away and he was in a jeep. There is not an iota of evidence, either in the statement of PW 1or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 of NDPS Act. 22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. 22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that: (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery. 15. A perusal of the above observations show that failure of sending the information to the superior officer amounts to violation of Section 42. The same is required to prevent false implication of innocent persons and also to ensure that information or the reason as provided as per provision of Section 42 was not reduced in writing subsequently and as an after thought. 16. The judgment rendered by the Apex Court in the case of State of Haryana v. Jarnail Singh and Ors., Reported in (2004) 5 SCC 188 as relied on by the learned counsel for the State to show that in case of a search of a tanker moving on public highway does not require compliance of Section 42, has no merit as the said case was a case of chance recovery. The judgment rendered by the Apex Court in the case of State, NCT of Delhi v. Malvinder Singh, reported in 2007 Cr.L.R. (SC) 504 too, does not help as the said case was also a case where the information was received by the police officer who was on patrolling duty. 17. In the circumstances, the compliance of Section 42 was mandatory. The same has caused prejudice to the accused. Failure of the police officer to send the copy of Exhibit-22 to the superior officer amounts to non-compliance of Section 42 of the NDPS Act. The legislature in its wisdom had made the provisions of Section 42 of NDPS Act as mandatory in order to prevent false implications. Thus, the present appeal merits grant of relief to the accused. 18. Accordingly, the appeal is allowed. The judgment and order dated 28.7.2008 passed by the Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 75/2006 is hereby set aside. The appellants are accordingly, acquitted of the offence punishable under Section 8/15 NDPS Act. Thus, the present appeal merits grant of relief to the accused. 18. Accordingly, the appeal is allowed. The judgment and order dated 28.7.2008 passed by the Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 75/2006 is hereby set aside. The appellants are accordingly, acquitted of the offence punishable under Section 8/15 NDPS Act. The appellants are ordered to be released immediately, if not required in any other case.Appeal Allowed. *******