Judgment 1. The appellant/sole accused in C.C.No.226 of 2003 on the file of the Special District and Sessions Court (NDPS Act and EC Act Cases), Madurai, stood charged, tried, convicted and sentenced, vide judgment dated 19.05.2008, thus: Conviction Sentence U/s 8(c) r/w 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short 'NDPS Act'). To undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for two weeks. The trial Court has also ordered set off under Section 428 Cr.P.C. 2. The facts leading to the filing of this Criminal Appeal, are as follows: 2.1. P.W.4 was the Head Constable attached to Tuticorin Narcotic Intelligence Bureau Police Station. On 19.06.2002, while he was on duty, his informant appeared in person and told that the appellant/accused, between 07.00 a.m., and 08.00 a.m., on 19.06.2002, would smuggle ganja. P.W.4 has reduced it into writing under Ex.P.8 and also informed his superior officials. P.W.3 and HC-1332 also took necessary instruments and went with the informant and was waiting near Tuticorin old bus stand and on identification by the informant, they saw a person holding white colour plastic bag and he was surrounded by the police party and they had shown their identity card and made enquiry with him. Initially, the said person gave different names and ultimately, he revealed his name as Thangaraj and the police party informed him of his right to be searched in the presence of a Judicial Magistrate or a Gazetted Officer and he stated that it is not necessary and the officials themselves can make a search and in this regard, the signature of the said person (appellant/accused) was also obtained. Since no independent witnesses came forward to sign as witness, P.W.3 and another had signed as witnesses. The plastic white colour bag was searched and it contained 1.250 Kg. of Ganja and out of the said contraband, 25 grams of Ganja was measured and taken and it was sealed. The signatures of the appellant/accused, namely, Thangaraj, and other witnesses were obtained and a mahazar was prepared under Ex.P.5. 2.2. The appellant/accused was brought to the Police Station at 10.00 a.m., and thereafter, a case in Cr.No.3 of 2002 for the offences punishable under Sections 8(c) read with Section 20(b)(ii)(B) of NDPS Act. The printed F.I.R was marked as Ex.P.7. Thereafter, P.W.5 took up the investigation. 2.3. 2.2. The appellant/accused was brought to the Police Station at 10.00 a.m., and thereafter, a case in Cr.No.3 of 2002 for the offences punishable under Sections 8(c) read with Section 20(b)(ii)(B) of NDPS Act. The printed F.I.R was marked as Ex.P.7. Thereafter, P.W.5 took up the investigation. 2.3. P.W.5 after getting the Chemical Analysis report marked as Ex.P.13 and after conducting the investigation, has filed the final report charging the offences punishable under Sections 8(c) read with Section 20(b)(ii)(B) of NDPS Act. 2.4. The Special Court on filing of the charge sheet, took it on file in C.C. No. 226 of 2003 and on appearance of the appellant/accused, framed the charges under Section 8(c) read with Section 20(b)(ii)(B) of NDPS Act and questioned him and he pleaded not guilty to the charges framed against him and prayed for trial of the case. 2.5. The prosecution in order to sustain their case, examined P.W.1 to P.W.5 and marked Exs.P.1 to P.8 and also marked M.O.1 to M.O.3. 2.6. The appellant/accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against him in the evidence tendered by the prosecution and he denied it as false. 2.7. On behalf of the accused, D.W.1 was examined and Exs.D.1 to D.3 were marked to show that the appellant/accused, even prior to the alleged date of occurrence, has been taken into illegal custody. 2.8. The trial Court on consideration of the oral and documentary evidence, has convicted and imposed the sentences as stated above. 2.9. Aggrieved by the conviction and sentence passed by the trial Court, the appellant/accused has filed the present Criminal Appeal. 3. Mr. A. Thiruvadikumar, learned Counsel for the appellant/accused would submit that the procedure contemplated under sub-section (2) of Section 42 of the NDPS Act has been given a complete go-by and hence, on that sole ground, the appellant/accused is entitled to be acquitted of. He would further urge that though according to P.W.4, after the contraband was seized, he took 25 grams of Ganja as sample, in the chemical analysis report marked as Ex.P.3, it is stated that 33 grams of Ganja was sent as sample and the said infirmity has not been explained by the prosecution and hence, prays for interference. 4. Per contra, Mrs. 4. Per contra, Mrs. S. Prabha, learned Government Advocate (Criminal Side) for the respondent would submit that the trial Court on appreciation of the oral and documentary evidence in a proper perspective, has rightly convicted and sentenced the appellant/accused and prays for the dismissal of this appeal. 5. This Court has carefully considered the rival submissions and perused the oral and documentary evidence and also the original records. 6. According to P.W.4 - Head Constable attached to NIB CID Police Station, Tuticorin, on receipt of the information from the informant, he along with the police party mounted surveillance and on seeing the appellant/accused, the informant identified him and immediately, he was surrounded by the police party and after informing their identification and his right to be searched in the presence of a Judicial Magistrate or a Gazetted Official and after observing due formalities, he was searched and his bag was searched and it contained 1.250 Kg. of Ganja, out of which, 25 grams of Ganja was drawn as sample and subjected to chemical analysis. 7. According to P.W.4, the information was reduced into writing marked as Ex.P.6 and it was also informed to his superior officials under Ex.P.8. 8. Ex.P.6 is the information given by the informant to P.W.4 and Ex.P.8 is nothing but the information that the appellant/accused was arrested. 9. In the considered opinion of this Court, sub-section (2) of Section 42 of the NDPS Act has been violated. 10. In Karnail Singh v. State of Haryana reported in 2009(10) SCALE 255 , the scope and applicability of sub-section (2) of Section 42 of the NDPS Act came up for consideration and as per sub-section (2) of Section 42 of the NDPS Act, the empowered officer, who have taken down information in writing or records the grounds of his belief under the proviso to sub-section (1), should send a copy of the same to his immediate official superior within 72 hours and in special circumstances involving emergent situations, the recording of the information in writing and sending a copy of thereof to the official superior may get postponed by a reasonable period. It has been further held that 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. It has been further held that whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. 11. As rightly pointed out by the learned Counsel for the appellant/accused, according to P.W.4, he received the information through the informant and he along with the police party mounted surveillance, but unfortunately failed to inform the same to his immediate superior officials in terms of sub-section (2) of Section 42 of the NDPS Act and hence, on that sole ground alone, the appellant/accused is entitled to be acquitted. 12. Since this Court is acquitting the appellant/accused on the ground of non-compliance of sub-section (2) of Section 42 of the NDPS Act, it need not go into the question of the chemical analysis report submitted on the basis of 33 grams of Ganja sent by way of sample. 13. In the result, this Criminal Appeal is allowed and the conviction and sentence passed in C.C.No.226 of 2003, vide judgment dated 19.05.2008, by the learned Special District and Sessions Judge, (NDPS Act and EC Act Cases), Madurai, are set aside and the appellant is acquitted of the charges framed against him. The bail bonds executed by the appellant shall stand terminated. The fine amount, if any, paid by the appellant, is directed to be refunded to him.