JUDGMENT Hon’ble B.K. Narayana, J.—Heard learned counsel for the appellant and learned AGA for the State. The appellant Amrendra Singh Kurmi has filed this criminal appeal against the judgment and order dated 13.6.1997 passed by Special Judge, Sonbhadra in Special Trial No. 43 of 1993, State v. Amrendra Singh Kurmi, convicting him under Section 20 of the N.D.P.S. Act and sentencing him to three years R.I. And a fine of Rs. 5000/- and in default of payment of fine further imprisonment of six months R.I. 2. Briefly stated the prosecution case as narrated in the memorandum of arrest and siezure Ex. Ka-1 is that on 10.3.1993, S.O. M.P.Singh alongwith S.I. Ashok Kumar Rai and Sarvjeet Singh, Constables Awadh Narain Singh and Munni lal had departed from police out post Renukoot vide G.D. Entry No. 19 at 16.50 hours alongwith informer who had given information regarding the trafficking in illicit ganja to him. The police party comprising of the aforesaid personnel picked two public witnesses Gyan Prakash Singh and Gorakhnath Dubey while on way to the destination disclosed by the informant, namely, Quarter No. H-3/215 Hindalco Colony, Renukoot located on the second floor. When the aforesaid police party reached at the house in question, they noticed one man coming out from the quarter in question carrying light military coloured VIP suitcase in his hands. The informant gestured towards the police party and communicated that he was their man. The aforesaid man was nabbed forthwith by the members of the police raiding party alongwith the suitcase in the balcony of the quarter in question at 5.20 p.m. On interrogation he revealed his identity as Amrendra Singh Kurmi. He was searched in the presence of public witnesses Gyan Prakash Singh and Gorakhnath Dubey. The VIP suitcase which he was carrying with him in his right hand was found stuffed with illicit ganja total weight whereof was upon weighing with the scale procurred from the grain shop of one Anil Kumar Rai was found to be 11 kgs. On demand made he could not produce any license to possess or for carrying ganja. The VIP suitcase which he was carrying with him in his right hand was found stuffed with illicit ganja total weight whereof was upon weighing with the scale procurred from the grain shop of one Anil Kumar Rai was found to be 11 kgs. On demand made he could not produce any license to possess or for carrying ganja. He further stated that the ganja seized from him was delivered to him by one K.N.Pandey two days back for sale and the same was intended to be kept in the quarter in question but due to the absence of Shyam Narain, the owner of the quarter in question, the same could not be done. Since the conduct of the accused Amrendra Singh Kurmi came well within the mischief of Section 8/20 of the N.D.P.S. Act, he was taken into custody. He was afforded opportunity to have the C.O. summoned to the place of crime. He however pleaded that seizure of suit case containing ganja from his custody was real and that there was no necessity to call C.O. to the place of incident. The seized ganja was sealed in the suitcase itself and sample of the seal was retained. Memorandum of arrest and seizure was then prepared on the spot and copy thereof was supplied to the accused. The accused alongwith seized ganja was brought to P.S. Pipari at 19.20 hours on 10.3.1993 itself vide chik FIR Ex. Ka-2. On the basis of memorandum of arrest and seizure a case was registered against the appellant at P.S. Pipari under Section 8/20 of N.D.P.S. Act in the G.D. At serial No. 40 vide G.D. Extract Ka-3. Upon completion of investigation charge-sheet was submitted by the Investigation Officer on 29.4.1993. The case was then sent up for trial to the Special Judge and numbered as special trial No. 43 of 1993. Charge under Section 20 of N.D.P.S. Act was framed against the appellant who pleaded not guilty and claimed to be tried. The prosecution produced memorandum of arrest and seizure Ex.Ka-1, Chik FIR Ex.Ka-2, G.D extract of registration of case Ex. Ka-3,. G.D. entry of departure of Sri M.P.Singh and constable Anurudh Singh from cop shop Pipari, Ex Ka-4, site plan Ex.Ka-5 and the chemical analysis report Ex. Ka-6, the suit case containing ganja was also produced as material Ex. -1. The prosecution produced memorandum of arrest and seizure Ex.Ka-1, Chik FIR Ex.Ka-2, G.D extract of registration of case Ex. Ka-3,. G.D. entry of departure of Sri M.P.Singh and constable Anurudh Singh from cop shop Pipari, Ex Ka-4, site plan Ex.Ka-5 and the chemical analysis report Ex. Ka-6, the suit case containing ganja was also produced as material Ex. -1. The accused appellant in his examination under Section 313 Cr.P.C. refuted the prosecution case in its entirety and maintained that he lived in H-31, Hindalco Colony while one police constable posed at police out post Renukoot was residing in quarter H-200. He further disclosed that aforesaid constable decoyed him from his quarter in a white colour Ambassador Car to his quarter located on the second floor and requested him to lift the suitcase kept their and accompany him to the police out post. However when he refused to comply with his command, another cop lifted the said suitcase and kept in the vehicle in which he was also made to sit forcibly and taken to the police out post where his signature was forcibly obtained. 3. The prosecution produced S.I. Sarvjeet Singh as P.W.-1, Head Constable Manboh Singh Yadav as P.W.-2 and I.O. Purshottam Das as P.W.-3. Smt. Malti was examined as C.W.-1 and defense had produced Gyan Prakash as D.W.-1. Learned Special Judge after considering the entire facts and circumstances of the case and the evidence on record, both oral as well as documentary convicted the appellant and awarded him the aforesaid sentence. 4. Learned counsel for the appellant submitted that in the present case, the search and recovery was made in an enclosed place by the members of the police party who had admittedly previous information that the appellant was carrying on sale of illicit ganja in their quarter in question, their failure to comply in Section 42 of the N.D.P.S. has totally vitiated the appellant’s conviction and sentence awarded to him. 5. Per contra learned AGA made his submissions in support of the impugned judgment. 6. I very carefully considered the submissions made by the learned counsel for the parties, perused the impugned judgment and scanned the record of the lower Court. 7. 5. Per contra learned AGA made his submissions in support of the impugned judgment. 6. I very carefully considered the submissions made by the learned counsel for the parties, perused the impugned judgment and scanned the record of the lower Court. 7. In order to properly appreciate the aforesaid ground of challenge it would be useful to extract the Section 42(1) and (2) of the N.D.P.S. and to scan the evidence adduced by the prosecution in this regard. Section 42 of the N.D.P.S. Act reads as hereunder : “42. 7. In order to properly appreciate the aforesaid ground of challenge it would be useful to extract the Section 42(1) and (2) of the N.D.P.S. and to scan the evidence adduced by the prosecution in this regard. Section 42 of the N.D.P.S. Act reads as hereunder : “42. Power of entry, search, seizure and arrest without warrant or authorisation.—(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence 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 inthis behalf by general or special order of the State Government, if he has reason to believefrom persons knowledge or information given by any person and taken down in writingthat any narcotic drug, or psychotropic substance, or controlled substance in respect ofwhich an offence punishable under this Act has been committed or any document or otherarticle which may furnish evidence of the commission of such offence or any illegallyacquired property or any document or other article which may furnish evidence of holdingany illegally acquired property which is liable for seizure or freezing or forfeiture underChapter V A of this Act is kept or concealed in any building, conveyance or enclosedplace, 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 thereofand any other article and any animal or conveyance which he has reason tobelieve to be liable to confiscation under this Act and any document or otherarticle which he has reason to believe may furnish evidence of thecommission of any offence punishable under this Act or furnish evidence ofholding any illegally acquired property which is liable for seizure or freezingor forfeiture under Chapter V A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he hasreason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant orauthorisation cannot be obtained without affording opportunity for the concealment ofevidence 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 thegrounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) orrecords grounds for his belief under the proviso thereto, he shall within seventy-two hourssend a copy thereof to his immediate official superior.” There is no dispute about the fact that Pws-1 and 2 who were the members of the raiding party, which had effected the entry search and recovery had prior information that the appellant was dealing with illicit narcotic drugs. 8. I have gone through the recitals contained in the recovery memorandum of arrest and seizure Ex. Ka-1 and the evidence of S.I. Sarvjeet Singh and Head Constable Manbodh Singh who were examined as PW-1 and PW-2 on behalf of the prosecution during the trial for proving the prosecution case but none of them have stated in their evidence that the secret information which was received by PW-1 was either taken by him in writing or he had recorded the grounds for his belief under the proviso thereto and had send a copy thereof within 72 hours to his immediate Official Superior. 9. I have also very carefully perused the evidence of by PW-1 and PW-2 recorded before the trial Court and I am constrained to observe that none of the witnesses have spoken anything in their evidence which may show that in the present case the provisions of Section 42(2) had been complied with. The question whether the Section 42 (2) of the N.D.P.S. Act is mandatory or not is no longer res-integra and has been finally settled by the Apex Court in the case of Karnail Singh v. State of Haryana, 2010 (1) JIC (SC). Paragraph 17 of the aforesaid judgment which is relevant for our purpose reads as hereunder : “In conclusion, what is to be noticed in 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 w.information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, tht is after the search, entry andseizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (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 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 ciolation 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, and does not inform the official superior at all, then also it will be a clear violation of 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.” 10. The evidence adduced by the prosecution in the present case clearly shows that there was no compliance of requirements of sub-section 2 of the act, inasmuch as Section 42(2) of the act clearly mandates an officer to take down any information in writing received by him under sub-section 1 of Section 42 or to record grounds for his belief under the proviso thereto, and send a copy thereof within seventy-two hours to his immediate official superior. There is no dispute about the settled law that where a statute prescribes a certain manner for performing any act in a given situation then the said act has to be performed in the same manner and any deviation therefrom shall vitiate such action. In the case of Karnail Singh (supra), the Hon’ble Apex Court has clearly observed that compliance with the requirements of Section 42(1) and 42(2) with regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure. 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 Apex Court further held that while total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. In the present case the evidence on record shows that there was neither any prompt nor delayed compliance of requirements of Section 42(2) of the Act. 11. In view of the forgoing discussions, I have no hesitation in holding that there was total non compliance of the requirement of Section 42(2) of the N.D.P.S. Act in the present case and hence the conviction of the appellant recorded by the learned trial judge cannot be sustained and is liable to be set aside on the aforesaid ground. Accordingly, this appeal is allowed. The impugned judgment and order are set aside. The appellant is on bail. His bail bonds are cancelled and sureties discharged. —————