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2014 DIGILAW 1043 (GAU)

Sonab Ali Laskar @ Sonab Ali v. State of Assam

2014-12-05

P.K.SAIKIA

body2014
1. These appeals are directed against the judgment dated 4.1.2008 passed by Special Judge, Cachar, Silchar in NDPS Case No. 2 of 2004 convicting the appellants herein of offence under section 20(b)(ii)(c) of the Narcotics Drugs and Psychotropic Substances ('the NDPS Act') and sentencing them to R.I. for 10 years and a fine of Rs. 1 lakh, in default, R.I. for another 6 months for the offence aforementioned. 2. Being aggrieved, the appellants have preferred these appeals citing several infirmities in the judgment under challenge. For convenience of discussion, the appellants would be referred to as accused persons. 3. Since both these appeals originated from the same judgment, I propose to dispose of both the appeals by this common judgment and order. 4. The facts projected by the prosecution in NDPS Case No. 2 of 2004, in short, are that on 7.1.2004 one Anil Choudhury, S.I. of Police of Jaypur Police Outpost while he was on petrol duty intercepted a Sumo vehicle with registration No. AS-II-B-1194 at Korongo Part-I and recovered some gunny bags containing articles, suspected to be ganja, weighing approximately 117 kg. 5. The said article, suspected to be ganja, was seized in presence of witnesses and samples were taken therefrom in accordance with the procedures, prescribed under the law and in due course, such samples were sent to FSL, Guwahati for necessary examination. In due course, the opinion of expert, rendered in respect of samples aforesaid, was received. The expert who conducted examination on those samples opined that samples, so sent to him, gave positive test for cannabis. 6. On receipt of the aforesaid report, Sri Choudhury, S.I. of Police, submitted charge sheet under section 20(b)(ii)(c) of the NDPS Act against Sri Devendra Sangha and Md. Sonab Ali Laskar and sent them to the court to stand trial. The learned Special Judge, Cachar, Silchar furnished the copies of police report and other connected documents to the accused persons and on hearing the parties, framed charge under section 20(b)(ii)(c) of the NDPS Act. 7. The charge, so framed, on being read over and explained to the accused, they pleaded not guilty and claimed to be tried. During trial, prosecution had examined as many as 8 witnesses including the I.O., Sri Anil Choudhury (PW1). The statements of accused persons were recorded under section 313, Cr.PC. The plea of the accused persons was of total denial. The charge, so framed, on being read over and explained to the accused, they pleaded not guilty and claimed to be tried. During trial, prosecution had examined as many as 8 witnesses including the I.O., Sri Anil Choudhury (PW1). The statements of accused persons were recorded under section 313, Cr.PC. The plea of the accused persons was of total denial. They, however, declined to adduce any evidence. 8. Oil conclusion of trial and on hearing the arguments, advanced by the parties, learned Spl. Judge, Cachar, Silchar, convicted both the appellants of offence under section 20(b)(ii)(c) of the NDPS Act and sentenced them to punishment as aforesaid. It is that judgment which has been challenged in the present appeals. 9. Opening up the argument on behalf of appellant in Crl. Appeal No.18 of 2008, Sri B.M. Choudhury, learned counsel submits that the judgment under challenge needs to be set aside since the empowered officer while taking action under the NDPS Act had grossly violated the provision of section 42 and 50 of the NDPS Act. Such violations of the aforesaid provisions of law vitiate the entire trial against the appellants and it in turn makes the judgment under challenge unsustainable. 10. In that connection, it has been pointed out that on the fateful day, the empowered officer got the secret information about illegal movement of psychotropic substances and such information was received by him while he was still in the police Outpost and as such, he was duty bound to reduce such information into writing and to send a copy thereof to his immediate superior officer before taking further action against the alleged offenders under the Act. 11. In the present case, the empowered officer, however, without complying with the direction rendered in section 42 of the NDPS Act, chose to proceed to the road through which the contraband articles were anticipated to be carried. According to Mr. B.M. Choudhury, learned counsel appearing for the appellant in Crl. Appeal No.18 of 2008, on this count alone, the judgment under challenge is required to be quashed and set aside. 12. The further case of the appellant in Crl Appeal No.18 of 2008 was that he was the driver of the vehicle in which police reportedly found some offending articles. B.M. Choudhury, learned counsel appearing for the appellant in Crl. Appeal No.18 of 2008, on this count alone, the judgment under challenge is required to be quashed and set aside. 12. The further case of the appellant in Crl Appeal No.18 of 2008 was that he was the driver of the vehicle in which police reportedly found some offending articles. Being a driver, he had no occasion to know that the goods, he carried in his vehicle for freight on that day, were, in fact, psychotropic substance. In other words, he had no nexus, whatsoever, with the articles which were reportedly recovered from his vehicle on 7.1.2004 at Kamranga Part-1 and which was found to be psychotropic substance. 13 Sri B M Choudhury again submits that the testimonies of the witnesses' are inconsistent, contradictory and defective on material points and as such the court below could not have relied on such evidence rn commg to he conclusion that the accused was found possessing contraband articles, same being ganja, on the day aforementioned in violation of the provisions of section 20(b)(ii)(c) of the NDPS Act. 14. On all those counts, the learned counsel for the appellant in Crl. Appeal No. 18 of 2008 urges this court to set aside the judgment under challenge and to acquit him of the offence aforementioned. 15. The argument, so advanced from the side of appellant in Crl. Appeal No. 18 of 2008, was adopted by Sri S.C. Biswas, learned counsel for the appellant in Criminal Appeal No 42 of 2008. He also submits the court that, he being a passenger in the vehicle involved in the crime in question, was not aware of the fact that the articles, which was carried in such a vehicle on the eventful day, was psychotropic substance. Since the prosecution could not prove that he was in conscious possession of those articles, said to be psychotropic substance, the court below could not have convicted him under the aforesaid provision of law. 16. Sri S.C. Biswas, learned counsel for the appellant in Criminal Appeal No. 42 of 2008, too, therefore, submits this court to acquit the accused appellant in Criminal Appeal No. 42 of 2008 of offence under section 20(b)(ii)(c) of the NDPS Act on setting aside the judgment under challenge. 17. The learned Addl. 16. Sri S.C. Biswas, learned counsel for the appellant in Criminal Appeal No. 42 of 2008, too, therefore, submits this court to acquit the accused appellant in Criminal Appeal No. 42 of 2008 of offence under section 20(b)(ii)(c) of the NDPS Act on setting aside the judgment under challenge. 17. The learned Addl. P.P. submits that the judgment under challenge invites no interference from this court since such a judgment has been rendered on the basis of evidence on record on marshaling such evidence in accordance with well established principles of law having regard to the law, laid down by hon'ble Apex Court of the country on the matter in question. He, therefore, submits this court to dismiss the appeal. 18. Before I could consider the rival submissions, advanced by the learned counsel for the parties, I find it necessary to have a look at the evidence on record and the evidence of I/O is first taken up for consideration. The I.O. of the case is one Anil Choudhury (PW1). According to him, on 7.1.2004, he was working as an Attached Officer, at Jaypur Police Outpost. On that day, he got secret information about the appellants carrying contraband articles in the vehicle, aforementioned. 19. On receipt of such information, he undertook petrol duty on the roads through which the contraband articles were anticipated to be carried. While he was so conducting the petrol duty, he saw a vehicle bearing No AS-II-B-1194 coming towards the place where he was doing duty at such point of time. Accordingly, he intercepted such vehicle at the place aforesaid which happens to be Karungo part-I and started searching such vehicle in accordance with the law, laid down. 20. On searching said vehicle, he found gunny bags containing articles suspected to be ganja. He also found accused Devendra Singha and Sonab Ah m the veh.de. He took the vehicle along with the accused persons to the police Outpost where he weighed the articles. On weighment of such article, being made, it was found that the weight of such article, suspected to be ganja, was 117 kg. 21. He also seized the vehicle having being found carrying contraband article. Soon thereafter, he collected the samples of seized articles in presence of the witnesses and sent such samples to the Forensic Science Laboratory, Guwahati ('FSL, Guwahati') for rendering opinion on such seized article. 22. 21. He also seized the vehicle having being found carrying contraband article. Soon thereafter, he collected the samples of seized articles in presence of the witnesses and sent such samples to the Forensic Science Laboratory, Guwahati ('FSL, Guwahati') for rendering opinion on such seized article. 22. In the meantime, he submitted an FIR to the Officer-in-charge of the Police Station concerned which he proved as Ext. 3 .In due course, report of the expert came wherein the expert opined that the sample of article, so sent, gave positive test for "cannabis" (ganja). Thereafter, he submitted charge sheet before the court having jurisdiction to try the case. 23. PW2, Sashi Mahon Sinha was driver of the vehicle and Head Constable, then posted at Jaypur Outpost. According to him, (PW2), on 1.7.2004 at about 9.30 a.m., they intercepted a Tata Sumo vehicle at Karungo Part I. The vehicle was found loaded with some gunny bags. The In-charge of Jaypur Outpost Police Outpost questioned the driver and passenger in the vehicle so as to ascertain the contents of such bags. Those persons replied that those gunny bags contained dry chilly. 24. However, such reply did not satisfy the In-charge of Jaypur Outpost for which he made a search of the vehicle and found those begs to have been filled with articles, suspected to be ganja. The driver, Md. Sonab Ali Laskar and the other person, namely, Devendra Singha were arrested and the vehicle along with the articles, suspected to be ganja, was taken to the police Outpost. On weighment being made, it was found that the weight of such article suspected to be ganja was 117 kg. 25. PW3, Sayananda Singh also deposes that on the fateful day, a vehicle was intercepted at Karungo part-I. The vehicle was found carrying gunny bags. On an enquiry being made, the driver and other person told them that the bags contained nothing but dry chilies only. However, on inspection, it was found that those bags contained substances, suspected to be ganja. The ganja with vehicle and the accused persons were brought to the police station. The driver of the vehicle told that those bags belonged to accused-Debendra Sangha. 26. PW4 Shitu Roy deposes that he had a grocery shop near the place where the vehicle was intercepted. The ganja with vehicle and the accused persons were brought to the police station. The driver of the vehicle told that those bags belonged to accused-Debendra Sangha. 26. PW4 Shitu Roy deposes that he had a grocery shop near the place where the vehicle was intercepted. On that day, in the evening, he was h called to Jaypur Police Outpost and the I/O obtained his signature on a paper. PW5 Hussain Ali Laskar deposes that on 7.1.2004, the vehicle bearing No. AS-ll-B-1194 was intercepted at Karungo Part -II and some gunny bags were found in the aforesaid vehicle. 27. On inspection, those bags were found to be filled with some substances, suspected to be ganja. Subsequently, the ganja was seized and same was weighed. PW6 Chandra Singha was declared hostile since he stated that he knew nothing about the incident in question. 28. A bare perusal of evidence of PWs clearly reveals that PW1 got secret information about the accused persons carrying articles suspected to be ganja and he got such information while he was in police Outpost itself. The evidence on record further reveals that on getting such information, he started petrol duty on the road through which the offenders were expected to come. 29. Such evidence clearly shows that the police officer who got secret information about accused persons carrying articles, suspected to be ganja, proceeded to the road through which accused persons were expected to come, however, without following the mandatory procedures, prescribed under the law, more particularly, the procedures in section 42 of the NDPS Act. 30. For ready reference the same is reproduced below : "42. Power of entry, search, seizure and arrest without warrant or authorisation. 30. For ready reference the same is reproduced below : "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 Centra] 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 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 matrials used in the manufacture thereof and any artice 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." 31. A perusal of section 42 of the Act makes it clear that whenever the empowered officer gets information about unlawful movement of contraband articles, he needs to reduce such information into writing and then to send a copy thereof to his immediate superior officer before proceeding to take action in terms of clauses A to D of section 42 of the NDPS Act. However, in emergent situation, the empowered officer can first take action under clauses A to D of section 42 of the NDPS Act and thereafter as far as practicable, reduces such information in writing and forward a copy thereof to his immediate superior officer. 32. In that connection, we can peruse the decision of the hon'ble Supreme Court in the case of Karnal Singh v. State of Haryana, (2009) 8 SCC 539 : “1. In Abdul Rashid Ibrahim Mansuriv. State of Gujarat, a three-Judge Bench of this court held that compliance with section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act') is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In Sajan Abraham v. State of Kerala, which was also decided by a three-Judge Bench, it was held that section 42 was not mandatory and substantial compliance was sufficient. 11. It was also contended by the learned counsel for the State of Gujarat in Abdul Rashid case that as the accused did not dispute the factum of recovery of the "charas" from the vehicle, it does not matter that the information was not recorded at the first instance by the police officer. The court did not approve such contention because it held that non-recording of information has in fact deprived the accused as well as the court of the material to ascertain what was the precise information which PW2 got before proceeding to stop the vehicle. It further held that value of such an information, which was the earliest in point of time, for ascertaining the extent of the involvement of the accused in the offence, was of a high degree. It further held that value of such an information, which was the earliest in point of time, for ascertaining the extent of the involvement of the accused in the offence, was of a high degree. The court further held that it is not enough that PW2 was able to recollect from memory, when he was examined in court after the lapse of a long time, as to what information he got before he proceeded to the scene. Even otherwise, it held that the information which PW2 recollected itself tends to exculpate the appellant rather than inculpate him. Finally, the court held that non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the accused. On analysing this as well as the other materials, this court ultimately allowed the appeal filed by the appellant-accused and set aside the conviction and sentence passed on him by the High Court and restored the order of acquittal passed in his favour by the trial court. 12. The ratio in Abdul Rashid is that the non-recording of vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant-accused. The police officer examined as a crucial witness, PW2, in that case admitted that he proceeded to the spot only on getting information that somebody was trying to transport a narcotic substance, but failed to take down the information in writing. Nor did he apprise his superior officer of any such information either then or later, much less send a copy of the information to the superior officer. Thus, it was a case of absolute non-compliance with the requirements of sections 42(1) and (2). 13. The facts in Safari Abraham v. State of Kerala were completely different. The appellant-accused, Sajan Abraham was put on trial for an offence punishable under section 21 of the Act. As per the prosecution case, on 10.10.1993 at about 7.45 p.m. the appellant was in possession of a manufactured drug by the name of "Tidigesic" and three syringes for injecting the same near Blue Tronics Junction at Palluruthy. The Head Constable, PW3 and two other constables of the Special Squad got information at about 7.00 p.m. on the said date that a person was selling injectable narcotic drugs near Blue Tronics Junction at Palluruthy. The Head Constable, PW3 and two other constables of the Special Squad got information at about 7.00 p.m. on the said date that a person was selling injectable narcotic drugs near Blue Tronics Junction at Palluruthy. They informed this to PW5, Sub-Inspector of Police, Palluruthy Cusba Police Station, who was coming in a jeep along with his police party. Thereafter PW5 along with his police party including PW3 and other members of the Special Squad went to the scene of occurrence and found the accused standing on the road with a packet in his hand. He was identified by PW3 and apprehended by PW5. On search, the packet possessed by the appellant revealed that it contained 5 strips of 5 ampoules each of Tidigesic and three injection syringes and a purse containing currency note of Rs. 10. At the spot, one ampoule was taken as a sample for chemical analysis and the said contraband articles were seized as per Ext. P-l and seizure mahazar was prepared at the spot. The appellant was also arrested. The charge sheet was submitted, the appellant pleaded not guilty. 14. The trial court in Safari Abraham case found discrepancies in the evidence a of the prosecution witnesses and, thus disbelieved the prosecution story, hence acquitted the appellant. The High Court, on reappraisal of the evidence, came to the conclusion that the trial court was not justified in acquitting the appellant. It held that the prosecution has established with positive evidence beyond reasonable doubt that the appellant has committed an offence punishable under section 21 of the Act, hence, convicted and sentenced the appellant before this court. 15. Learned counsel for the appellant in Sajan Abraham case submitted before this court with vehemence that the prosecution has violated the mandatory provisions under section 42, section 50 and section 57 of the Act and hence, conviction and sentence is liable to be set aside, c 16. The conclusion of this court with regard to section 42 was as under : (Sajan Abraham case, SCC pp. 695-96, paras 6-7) "6. With regard to section 42, the submission is that PW 5 has not recorded the information given by PW 3 with respect to the appellant's involvement before proceeding to arrest him in this case. This constitutes violation of section 42 of the Act. 695-96, paras 6-7) "6. With regard to section 42, the submission is that PW 5 has not recorded the information given by PW 3 with respect to the appellant's involvement before proceeding to arrest him in this case. This constitutes violation of section 42 of the Act. It is true under section 42(1), the officer concerned, when he has reason to believe from his personal knowledge or information received from any person, is obliged to take it down in writing if such information constitutes an offence punishable under Chapter IV of the Act and send it forthwith to his immediate superior. Such an officer is empowered to search any building, conveyance and in case of any resistance, break up any door or remove any obstacle for such entry, seizure of such drug or substance and to arrest such person whom he has reason to believe to have committed any offence punishable under the said Chapter. Thereafter such officer has to send a copy of this information forthwith to his immediate superior. Submission is that PW5 after receiving the said information had not communicated it to his immediate superior which constitutes violation of section 42. In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the Legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. 7. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. 7. In the present case, PW3 Head Constable got information with reference to the appellant only at about 7p.m. that the person is selling injectable narcotic drugs near Blue Tronics Junction, Palluruthy. When he proceeded for Palluruthy Police Station to give this information to his immediate superior, SI of Police, PW5, he found PW5 along with his police party, who were on patrol duty coming, hence, the said information was communicated there by PW3 to PW5. Thereafter, PW5 along with his police party and PW3 immediately proceeded towards the place where the appellant was standing. Had they not done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. How PW5 could have recorded the information given by PW3 and communicated to his superior while he was on motion, on patrol duty, in the jeep before proceeding to apprehend him is not understandable. Had they not acted immediately, the appellant would have escaped. On these facts, [this court found that no] inference could be drawn that there has been any violation of section 42 of the Act." 17. It is clear from Sajan Abraham that to enforce the law under the NDPS Act stringently against the persons involved in illicit drug trafficking and drug abuse, the Legislature has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted to be mandatory. It is further clear that this is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The court however while construing such provisions strictly should not interpret them literally so as to render their compliance impossible. It concluded that if in a case, the strict following of a mandate results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. It is also clear that when substantial compliance has been made it would not vitiate the prosecution case. 35. It concluded that if in a case, the strict following of a mandate results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. It is also clear that when substantial compliance has been made it would not vitiate the prosecution case. 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. 33. Coming back to our case, I have found that PW1, the empowered Officer on getting secret information about unlawful movement of contraband articles proceeded to the road through which such articles were expected to be carried in order to take action under the NDPS Act. However, in doing so, he blissfully forgot to follow the prescription of law in section 42 of the NDPS Act. 34. In other words, there was total violation of section 42 of the aforesaid Act, this more so, when there is nothing on record to show that the empowered Officer (PW1) had to proceed to the place aforesaid due to some emergent situations without following the prescription, rendered in section 42 of the Act. 35.1 have already found that reducing the information into writing and to send a copy thereof to the superior authority is a mandatory provision of law and the violation of such provision vitiate the subsequent trial, if any, against the offender(s) making judgment rendered in such a trial convicting the accused therein unsustainable. 35.1 have already found that reducing the information into writing and to send a copy thereof to the superior authority is a mandatory provision of law and the violation of such provision vitiate the subsequent trial, if any, against the offender(s) making judgment rendered in such a trial convicting the accused therein unsustainable. 36. Since, in our instant case, there is total violation of section 42 of the Act, in my opinion, the court below ought not to have convicted the accused of offence under section 20(b)(ii)(c) of the NDPS Act and ought not to have punished them as aforesaid. 37. Learned counsel for the appellants, also contend that the judgment under challenge, is required to be interfered with also for the reason that the Empowered Officer totally violates the provision incorporated in section 50 of the NDPS Act in taking action against the appellants . In that connection, it has been pointed out that the Empowered Officer never informed the appellants that they had a right to be searched before a Magistrate or Gazetted Officer. 38. It has been contended that the provision of section 50 of the NDPS Act is mandatory and violation thereof vitiates the trial. I have already found that the judgment under challenge needs to be set aside for total violation of section 42 of the NDPS Act and as such, I am not inclined to probe the allegation in respect of violation of section 50 of the NDPS Act. 39. In the result, the judgment under challenge is found unsustainable in law and the same is liable to be quashed and set aside. Accordingly the judgment under challenge is quashed and set aside. 40. The accused/appellants are acquitted of offence under section 20(b)(ii)(c) of the NDPS Act and they are ordered to be released forthwith, if their detention is not required in connection with any other case(s). 41. Consequently, the appeals are allowed and disposed of. 42. Return the LCR forthwith.