JUDGMENT Hon’ble Alok Singh, J (Oral). Present appeal is directed against the judgment and order dated 04.04.2011 passed by Special Judge (NDPS Act)/ 6th Additional Sessions Judge, Haridwar in Special Sessions Trial No. 15 of 2010 whereby appellant was held guilty for the offence punishable under Section 8/20 of NDPS Act and was sentenced to undergo 10 years rigorous imprisonment and to pay fine of ‘ 1,00,000/- and in default of making payment of fine, to undergo 1 year additional simple imprisonment under Section 8/20 of the NDPS Act. 2. Brief facts of the present case, inter alia, are that PW2 Senior Sub Inspector Dinesh Kumar along with Constable Rajvardhan, Constable Uttam Ramola, Constable Shashi Kant (PW1) and Constable Sushil Kumar left the police station on 27.12.2009 at 05.00 p.m. vide report no. 2. Brief facts of the present case, inter alia, are that PW2 Senior Sub Inspector Dinesh Kumar along with Constable Rajvardhan, Constable Uttam Ramola, Constable Shashi Kant (PW1) and Constable Sushil Kumar left the police station on 27.12.2009 at 05.00 p.m. vide report no. 45 for maintaining law and order duty in the area; when police party reached near Laltarav Bridge, police informer passed on secret information to police party that one person standing near Hanuman Temple on Bilkeshwar Temple Road was having charas; believing on the information passed on by the police informer, police party searched each other and having satisfied that none of them was having any illegal thing /contraband, police party proceeded towards Bilkeshwar Temple Road along with informer; informer pointed out towards a man standing near Hanuman Temple and left the place, thereafter, police party tried to have independent public witness, however, none could agree to become independent witness; whereafter, police party proceeded towards the person standing on Hanuman Temple; seeing the police party, that man tried to escape but he was apprehended by the police party and on being asked, he disclosed his identity as appellant; appellant was made to understand his legal right that he could be searched in presence of a Gazetted Officer or a Magistrate, however, appellant told the police party that since the police party had apprehended him, therefore, police party could search him; having received such consent, he was searched by the police party and on search, it was found that appellant was carrying a blue colour polythene bag containing charas and in order to weigh the charas, so recovered, from the possession of the appellant, weighing scale was taken from one Fruit Vendor namely Pappu, son of Ram Pal, resident of Bengali Basti, Brahmpuri, District Haridwar, who was passing through along with his Rehdi (go-cart); on being weighed, charas was found to be of 1 kg.; out of 1 kg., 100 gm of charas was taken out as sample; sample, so taken, contraband, so recovered, were kept in a seal cover under the seal and signature of PW2 and thereafter, contraband, sample, sample seal and appellant were taken to police station and FIR was got registered. 3. Investigation was handed over to PW4 Rajendra Singh Aswal, who having investigated the matter, submitted charge-sheet against the appellant for the offence punishable under Section 8/20 of the NDPS Act. 3. Investigation was handed over to PW4 Rajendra Singh Aswal, who having investigated the matter, submitted charge-sheet against the appellant for the offence punishable under Section 8/20 of the NDPS Act. After committal of the case, trial court was pleased to frame charge against appellant for the offence punishable under Section 8/20 of the NDPS Act. Appellant denied the charges and claimed trial. 4. To prove the prosecution story, PW1 Constable Shahsi Kant, PW2 SSI Dinesh Kumar, PW3 Constable Umesh Singh, PW4 Investigating Officer Rajendra Singh Aswal, PW5 Head Constable Shankar Singh were examined and thereafter, statements of appellant were also recorded under Section 313 Cr.P.C. From the side of defence, DW1 Mahipal Sharma was examined. 5. Having perused the entire material made available on record, learned trial court was pleased to pass judgment and order under appeal. 6. I have heard Mr. Tapan Singh, Amicus Curiae for the appellant, Mr. S.K. Chaudhary, Additional GA with Mr. Asif Ali, Brief Holder for the State and have carefully perused the record. 7. As per statement of the Investigating Officer SI Rajendra Singh Aswal (PW4), sample was sent for chemical examination on 16.01.2010 through lady Constable Anita Thapa. As per paper no. 12-ka on the lower court file, sample was handed over to Constable Anita Thapa under the signature of Superintendent of Police (City) Haridwar on 16.01.2010, however, sample was delivered to FSL, Dehradun on 19.01.2010. Constable Anita Thapa has not been examined, who could have been the best witness to say that she received the sample in intact sealed condition on 16.01.2010 and she handed over the same to FSL in intact sealed condition and meanwhile, there was no tempering with the sample of the contraband. She could have further clarified that when she received sample on 16.01.2010, as to why, she has not delivered the same to FSL, Dehradun, on the same day or on next day, which is just 50 kms. away from Haridwar and under what circumstances, the same was delivered to FSL Dehradun on 19.1.2010. 8. She could have further clarified that when she received sample on 16.01.2010, as to why, she has not delivered the same to FSL, Dehradun, on the same day or on next day, which is just 50 kms. away from Haridwar and under what circumstances, the same was delivered to FSL Dehradun on 19.1.2010. 8. As per the contents of FIR, statements of PW1 and PW2, secret information was received by the police party from police informer to the effect that one person carrying charas was standing near Hanuman Temple on Bilkeshwar Temple road and having received such information, police party searched each other and having satisfied that none of them was having any contraband, search memo was prepared on the spot and thereafter, police party proceeded towards Bilkeshwar Temple Road and meanwhile, police party tried to have independent public witness, however, none could agree to become independent public witness and thereafter, they proceeded towards the appellant. 9. Mr. Tapan Singh, learned Amicus Curiae for the appellant has vehemently argued that police party would have taken at least 20-25 minutes in search of each other and preparing the search memo before proceedings towards Bilkeshwar Temple Road and must have taken 10-15 minutes in asking the members of public to become independent public witness, however, secret information, so received, was neither reduced, in writing as required under Section 42 (1) of the NDPS Act nor the same was forwarded to the higher officers. 10. Hon’ble Apex Court in the case of Kishan Chand Vs. State of Haryana reported in 2013 (2) SCC 502 in the similar facts and circumstances has held that where secret information of the nature referred to in Section 42 (1) was received by the police party, such information should have been reduced, in writing and should have been forwarded to the higher officers, as required under Section 42 (1) of the NDPS Act. 11. In the case of Kishan Chand (supra) Hon’ble Apex Court has placed reliance on the judgment of Hon’ble Apex Court in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujrat reported in 2000 (2) SCC 513 and in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 . Hon’ble Apex Court in the case of Karnail Singh (supra) has held as under: “35. State of Gujrat reported in 2000 (2) SCC 513 and in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 . Hon’ble Apex Court in the case of Karnail Singh (supra) has held as under: “35. In conclusion, what is to be noticed is that 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 Sections 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 register concerned 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 with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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 of 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.” 12. As per dictum of Hon’ble Apex Court, non compliance of Section 42 of the NDPS Act is always fatal to the prosecution, however, delayed compliance with sufficient explanation by definite and reliable grounds can be accepted. 13. In the present case, PW1, during his cross examination, stated that incident was neither informed to higher officers by him nor Daroga jee passed on the secret information to the higher officers and he cannot say as to whether information was ever sent to the higher officers. As per statements of PW1 & PW2 and contents of FIR, weighing scale was taken from Pappu, son of Rampal, who was passing through the Road along with his Rehdi (go-cart) and thereafter, contraband, so recovered, was weighed from his weighing scale, however, Pappu has not been examined, if Pappu was present on the spot, as to why his signature was not obtained on the search, recovery memo as well as on seizure memo, this has not been explained by the prosecution. 14. 14. In view of the above discussion, in my considered opinion, prosecution has failed to prove the guilt of appellant beyond reasonable doubt, therefore, conviction of the appellant does not sustain in the eyes of law, consequently, appeal is allowed. Impugned judgment and order dated 04.04.2011 passed by Special Judge (NDPS Act)/ 6th Additional Sessions Judge, Haridwar in Special Sessions Trial No. 15 of 2010 is set aside. Appellant is acquitted from the charges levelled against him. Appellant is in jail. Let he be released from jail forthwith, if not wanted in any other case. 15. Let a copy of this order be forwarded to the lower court for compliance along with lower court record.