JUDGMENT : Judgment dated 19.02.2004 of Special Judge (NDPS Act Cases), Vadakara (for short 'the court below') in S.C No.172/2003 is assailed in this Appeal. The appellant is accused No.2 in the case, who was found guilty for the offence punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.60,000/-. He was also sentenced to undergo rigorous imprisonment for three months in default of payment of fine. 2. Before adverting to the grounds of challenge, the prosecution case is summarised hereinbelow : On 03.02.2003 at 5 a.m. the Circle Inspector of Police, Malappuram received an information that two men were engaged in transporting narcotic substance in a white coloured Maruthi Car bearing registration No.MH-02-Y-6387 from Cherur to Malappuram through Vengara-Malappuram Road. The information was recorded by him in the General Diary at the Police Station and a report as contemplated under Section 42 NDPS Act was prepared and forwarded to the Deputy Superintendent of Police, Malappuram. The Circle Inspector alongwith other policemen proceeded to the spot. They arrived at the site at 5.15 a.m. and found a Maruthi Car bearing the number referred to by the informant. The police party rushed towards the car. The driver of the car opened the door all on a sudden, got down from the car and rushed towards a river flowing through the right side of the road. The officials chased him but did not catch him. A man, who was found sitting in the front seat was brought out of the car and questioned. Answering the query, he told the police officials that the person who had fled from the scene is none other than Mr.Pakkiyam Hameed, the owner of the car. The Circle Inspector of Police then informed the person intercepted, about his right to have his body search conducted in the presence of a Gazetted Officer or Magistrate. He replied that he did not want the presence of a Gazetted Officer or Magistrate to witness the search of his body. Thus, his body search was conducted by the Circle Inspector of Police. Search being conducted before sunrise, the availability of the public there was remote. 3. In the search held, a plastic cover was recovered from the pocket of the 'burmooda' worn by him. Thus, his body search was conducted by the Circle Inspector of Police. Search being conducted before sunrise, the availability of the public there was remote. 3. In the search held, a plastic cover was recovered from the pocket of the 'burmooda' worn by him. The contents of the plastic cover on examination was suspected as brown sugar. Therefore, the accused was convinced and arrested from the spot on 5.40 a.m. Thereafter the car was searched and a plastic bag was found below the driver's seat. The contents of the plastic bag was examined and got convinced as brown sugar covered with gilt papers. One small steel coloured weighing balance, weights measuring 1 gm, 2 gms, 5 gms, 10 gms and 20 gms were also recovered from the plastic bag. The service of a goldsmith was procured and the brown sugar was weighed at the spot. Brown sugar recovered from the possession of the accused and the car weighed around 50.05 gms each. Samples were drawn from the contraband seized. Samples, remnant brown sugar and other articles recovered from the plastic bag were sealed. Seizure mahazar was prepared from the spot and the properties were seized. The accused alongwith the properties seized from the spot were transported to the police station and Crime No.61/03 was registered against the accused alleging commission of offence punishable under Section 21(b) NDPS Act. The investigation was conducted based on the FIR registered. On concluding the same chargesheet was laid against the accused arrested from the spot as well as the person who fled from the scene respectively as second and first accused. The Maruthi car was also seized and taken to the police station. Co-accused was arrested, but jumped bail and thereby made him unavailable for trial. Accordingly, the case against him was split up and refiled as S.C No.171/2003. 4. Against the 2nd accused, charge was framed by the court below for the offence punishable under Section 21(b) NDPS Act. Charge when read over and explained to him, he pleaded not guilty and faced trial. 5. On the side of the prosecution, PWs 1 to 7 were examined and Exts.P1 to P11 were marked. Material objects were also marked as MO1 to MO11. On closure of the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence by the prosecution. 5. On the side of the prosecution, PWs 1 to 7 were examined and Exts.P1 to P11 were marked. Material objects were also marked as MO1 to MO11. On closure of the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all those and maintained the stand of total innocence. Grounds having not been made out to record an order of acquittal, the accused was asked to enter on his defence, but he did not adduce any evidence. 6. On appreciation of the evidence and evaluation of the arguments put forth by the Prosecution as well as the learned counsel for the defence, the court reached a finding on guilt of the accused for the offence charged against him. He was convicted and sentenced to undergo punishment. Aggrieved thereby, the accused preferred the captioned appeal urging to reverse the judgment passed against him. 7. Sri.T.G. Rajendran, the learned counsel advanced arguments on behalf of the appellant and Smt.Sheeba, the learned Public Prosecutor advanced arguments on behalf of the prosecution. 8. The first and foremost argument of Sri.T.G. Rajendran, the learned counsel for the appellant was that the prosecution failed to comply with Section 42 NDPS Act. According to him, the Circle Inspector of Police, Malappuram Police Station, who had detected the offence was an authorised officer under Section 41 NDPS Act. According to him, as per the prosecution case, a reliable information was obtained by the officer at 5 a.m. on 03.02.2003. Immediately on getting the information, he reduced the same into writing and after forwarding a copy thereof to his superior officer, he proceeded to the spot as informed. On the way, a Maruthi car bearing registration No. MH-02-Y-6387 was found proceeding against them. It was intercepted and a search was held. 9. The Circle Inspector of Police, Malappuram Police Station who had detected the offence and held the search and seizure was examined before the court during trial as PW1. It is evidenced that the search and seizure were held before sunrise. According to the learned counsel, there is total want of evidence on record to show that a search warrant was procured from the Magistrate, prior to proceeding to the spot. It is evidenced that the search and seizure were held before sunrise. According to the learned counsel, there is total want of evidence on record to show that a search warrant was procured from the Magistrate, prior to proceeding to the spot. The Circle Inspector of Police, Malappuram Police Station, at whose instance the case was detected and search and seizure were conducted, though examined before the Court as PW1, has not spoken during examination that after obtaining the information and prior to proceeding to the spot, a search warrant was obtained by him. According to the learned counsel, Section 42 NDPS Act contemplates that an officer proceeding to the spot, if has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity to the offender from concealment of evidence or facility for escape, may record grounds of his belief and enter and search the building, conveyance or enclosed place, at any time between sunset and sunrise. It is contended by the learned counsel that PW1 when examined before the Court has not spoken about those aspects. In that backdrop, the conclusion of the learned counsel was that neither a search warrant was obtained nor the reason for not obtaining the same was recorded by the officer who had conducted the search and seizure, which undoubtedly was at a time between the sunset and sunrise, as contemplated under Section 42 NDPS Act. This Court also finds from the evidence on record that a material of the nature is not available in evidence and therefore, violation of Section 42 NDPS Act can be drawn. 10. The second argument advanced by the learned counsel was that there was inordinate delay for production of the properties seized from the spot, before the Court. According to the learned counsel, the seizure was on 03.02.2003. But on a perusal of the materials available in evidence, it was noticed that the properties were received by the Court only on 06.02.2003. The learned counsel has drawn the attention of this Court to the deposition of PW1, wherein he has spoken categorically that the properties were produced firstly before a Magistrate, who was incompetent to receive those and on being returned therefrom, were produced before the court below. But, when the properties were actually produced before the proper court, was not stated by PW1. But, when the properties were actually produced before the proper court, was not stated by PW1. According to the learned counsel, the explanation for the delay in production was explained by PW1 as production firstly before a court without jurisdiction. The learned counsel urged that, if the contraband was produced before a wrong court and returned therefrom, necessarily an endorsement must be made by that court in the list of properties. The learned counsel contended vehemently that in the absence of an endorsement of the nature, the explanation of PW1 cannot be taken for granted and the delay occurred can only be taken as unnecessarily occurred. 11. It is submitted by the learned counsel that there is no evidence available regarding the custodian of the properties after seizure and prior to production before the Magistrate and after getting those returned therefrom and prior to production before the special court having jurisdiction. The learned counsel pointedly argued that with regard to the custody of the properties for the period of delay in production, no concrete evidence is forthcoming and in the said circumstances likelihood of the contraband being tampered with cannot be ruled out. 12. An argument was also raised on non-compliance of Section 52 NDPS Act. According to the learned counsel, Section 52 provides that any officer or an authorised person under Section 41, 42, 43 or Section 44 shall as soon as the arrest of the accused, inform him of the grounds for such arrest. It is contended by the learned counsel that none of the witnesses examined had deposed that prior to the arrest, the accused was informed about the grounds of his arrest. According to the learned counsel, the above requirement is a mandatory one and non-compliance has a serious adverse impact on the trial held against the accused. The learned counsel has also pointed out that the directions issued by the Apex Court in the matter of arrest were also not complied with in the case on hand and therefore, the arrest cannot be considered as legal. According to him, there is total want of evidence to indicate that any of the near relatives of the accused had been informed about the arrest. Raising contentions as above, the learned counsel urged for a reversal of the judgment under challenge. 13. According to him, there is total want of evidence to indicate that any of the near relatives of the accused had been informed about the arrest. Raising contentions as above, the learned counsel urged for a reversal of the judgment under challenge. 13. Per contra, the learned Public Prosecutor contended that the court below is perfectly justified in arriving at a finding of guilt of the accused and passing orders of conviction and sentence against him. According to the learned Public Prosecutor, official witnesses examined as PWs 1, 2, 3 and 6 have deposed categorically and corroboratively about detection, search, seizure and sampling of the contraband and compliance of pre-requisite procedural formalities to make those legal. It is contended by the learned Public Prosecutor that a valid ground did not exist calling for interference with the judgment under challenge. It is also contended by the learned Public Prosecutor that there is absolutely no reason to doubt compliance of Section 50 NDPS Act by PW1. On the basis of arguments advanced as above, the learned Public Prosecutor canvassed for confirmation of the judgment under challenge. 14. Bearing the rival contentions advanced by the learned Public Prosecutor and the learned counsel representing the accused as aforesaid in mind, the evidence on record is appreciated by this Court. Non compliance of Section 42 was projected as the main and serious flaw that vitiated the trial. In that context, it is relevant to have a look at Section 42 NDPS Act. In the first part of Section 42, the officers competent to enter, conduct search and seize contraband and to arrest the person involved, on the strength of a warrant or authorisation are dealt with. It provides that when any of the officers specified therein have reason to believe either from personal knowledge or information given by any person, he shall immediately put the information received into writing. It provides that when any of the officers specified therein have reason to believe either from personal knowledge or information given by any person, he shall immediately put the information received into writing. It further provides that if any of the contraband specified in the Section and liable for seizure or freezing or forfeiture under Chapter VA of the Act, was found kept concealed in any building, conveyance or enclosed place, at a time, between sunrise and sunset, (i) The officer concerned may enter into and search any such building, conveyance or place, (ii) in case of resistance, break open any door and remove any obstacle to such entry; (iii) 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 for confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of 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 the Act and; (iv) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under the Act. 15. The second proviso to Section 42 NDPS Act says that if the authorised officer has reason to believe that a search warrant or an authorisation cannot be obtained without affording opportunity for concealment of evidence or facility for 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. Sub-section (2) of Section 42 provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, a copy thereof shall be sent to his immediate official superior, within seventy two hours. 16. The evidence in the case on hand when scrutinised in the backdrop of the above contention, it is noticed that, information about transportation of contraband in a particular white Maruthi car was received by the officer concerned at 5 a.m. on 03.02.2003. 16. The evidence in the case on hand when scrutinised in the backdrop of the above contention, it is noticed that, information about transportation of contraband in a particular white Maruthi car was received by the officer concerned at 5 a.m. on 03.02.2003. PW1 categorically stated during examination that information obtained by him was reduced into writing in the General Diary and a copy of its extract was sent to the Dy.S.P. To substantiate the version of PW1, the prosecution has also produced and marked Ext.P2, copy of the extract of the General Diary dated 03.02.2003 in evidence. Therefore, the prosecution has tendered a reliable material in evidence to establish that the first part of Section 42 NDPS Act was satisfactorily complied with by the prosecution. 17. Time at which the information was received by PW1 is very crucial in the context. It was at 5 a.m. on 03.02.2003 and therefore, before sunrise. Therefore, PW1 cannot dispense with obtaining a search warrant from the jurisdictional Magistrate. In the case on hand, there is total want of evidence to establish that. Even a Search Memorandum is also not forthcoming in evidence. 18. Ext.P4 is the seizure mahazar prepared by PW1 from the spot. It is pertinent to note from the description in the said document that the pre requirement for a search before sunrise to be legal was complied with by PW1, prior to proceeding to the spot. But, the officer empowered when examined before the Court as PW1, did not say anything regarding compliance of Section 42 NDPS Act. The second proviso to Section 42 provides that, if the search and seizure were conducted without obtaining a search warrant or authorisation, the officer concerned is bound to state the reasons for not doing so. The proviso is self explanatory of the circumstances that justify an officer from not obtaining a search warrant or authorisation. He can avoid doing so, when he has an apprehension that evidence is likely to be concealed or that in the circumstances existing then, there is a likelihood for the offender to be escaped within the time taken by it to procure a search warrant. Only on those twin situations mentioned in the proviso to Section 42 NDPS Act, procurement of search warrant or authorisation can be dispensed with. Only on those twin situations mentioned in the proviso to Section 42 NDPS Act, procurement of search warrant or authorisation can be dispensed with. While opting to conduct a search without obtaining a search warrant, it is mandatory that the officer concerned shall record the grounds of his belief for doing so. While tendering evidence PW1 has not stated anything to justify holding of search of the vehicle between sunset and sunrise without obtaining a search warrant or authorisation as mandated by that legal provision. Therefore, it can safely be concluded that PW1 has proceeded to the spot after getting the information regarding transportation of the contraband in the vehicle before sunrise but without obtaining a search warrant or authorisation as directed by Section 42 NDPS Act. 19. Then the question comes, whether non-compliance of Section 42 would vitiate the trial or not. Going by the evidence of the prosecution it is seen that apart from PW1, three other officials who were accompanying him were also examined by the prosecution as PWs 2 and 3. The ASI, who prepared the seizure mahazar was also examined before the court. All these witnesses had deposed in corroborative manner about the detection, search, seizure, sampling and preparation of seizure mahazar from the spot. The versions of those witnesses also corroborate with the contents of the seizure mahazar. In the thorough scrutiny held, material discrepancies in the versions of witnesses were also not noticed. 20. Whether the impact of non-compliance of Section 42 could be minimized, in view of the corroborative evidence of the witnesses examined by the prosecution is the next question that warrants consideration. The learned counsel for the appellant has relied on State of Punjab v. Balbir Singh [ (1994) 3 SCC 299 ] and State of Rajasthan v. Jagraj Singh alias Hansa [ (2016) 11 SCC 687 ] to rest his contention that non-compliance of Section 42 NDPS Act has the impact of vitiating the trial held against the accused. In Balbir Singh's case (supra), an identical situation with the one on hand was dealt with by the Apex Court. It was a case wherein a contraband article coming within the purview of NDPS Act was seized in between sunrise and sunset. In Balbir Singh's case (supra), an identical situation with the one on hand was dealt with by the Apex Court. It was a case wherein a contraband article coming within the purview of NDPS Act was seized in between sunrise and sunset. The Court had elaborately dealt with the formalities required to be complied with by an officer empowered by NDPS Act while proceeding to conduct search and seizure at a time in between sunrise and sunset. The Apex Court dealt with all the provisions of NDPS Act and concluded in paragraph 25 thereof in the following lines : (1) xxxxx (2-A) xxxxx (2-B) xxxxx (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. (3) Under Section 42(2) 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. (4-A) xxxxxxxxx (4-B) xxxxxxxxx 21. Therefore, going by the extract above, it is found that noncompliance of Section 42 NDPS Act has a very crucial impact on trial and the prosecution case. 22. 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. (4-A) xxxxxxxxx (4-B) xxxxxxxxx 21. Therefore, going by the extract above, it is found that noncompliance of Section 42 NDPS Act has a very crucial impact on trial and the prosecution case. 22. Coming to the next contention advanced by the learned counsel regarding non-compliance of mandatory requirements of arrest, it is pertinent to note from the available evidence on record that though the appellant was arrested from the spot on 3.2.2003 and as deposed by PW1, in strict compliance of the legal formalities of arrest, materials of any nature substantiating those are not forthcoming. The documentary evidence on record did not incorporate arrest memo and arrest notice, which are documents, crucial to make an arrest legal. PW1 also failed to state anything about preparation of those documents. PW1 has only stated that all requisite formalities have been complied with. In the absence of supportive documentary evidence, it is difficult to accept the version of PW1. If the arrest was effected after compliance of the requisite formalities, then definitely the arrest memo and arrest notice will be available along with the other documentary evidence. In the absence of those, the conclusion possibly be drawn was that requisite legal formalities as per the directives of the Apex Court have not been complied with. In that scenario as rightly urged by the learned counsel, arrest of accused is illegal. 23. On a scrutiny of the evidence, the argument of the learned counsel on delayed production of the contraband before the court is found meritorious. PW1 is seen stated during examination that the properties seized from the spot on 3.2.2003 have been produced firstly before Judicial First Class Magistrate Court. According to him after the production of the properties before the Magistrate, those have been returned for production before the court below. As evidenced from Ext.P7, the properties were received by the court below on 6.2.2003. By stating that the properties were firstly produced before the Magistrate Court, PW1 made an attempt to explain the delay. If the version of PW1 that the properties had been produced firstly before an incompetent court is true, Ext.P7 property list must contain an endorsement from that court to the said effect. By stating that the properties were firstly produced before the Magistrate Court, PW1 made an attempt to explain the delay. If the version of PW1 that the properties had been produced firstly before an incompetent court is true, Ext.P7 property list must contain an endorsement from that court to the said effect. Going by Ext.P7, an endorsement of the Judicial First Class Magistrate is not found in it. Therefore, the explanation tendered by PW1, that on account of the production of the properties before the wrong Court, the delay was occurred is liable to be thrown out. Ext.P7 property list contain a seal of the court below and the date borne out therefrom is 6.2.2003. PW1 has also affixed his signature in Ext.P7 with the date written underneath as 3.2.2003. Therefore, Ext.P7 can be taken as prepared by PW1 on 3.2.2003. It is found that the court below received those only on 6.2.2003. Therefore, there is every reason to hold that the production of properties before the court below was delayed by three days. In the aforesaid circumstances, it is incumbent upon PW1 to explain the reason for the late production of the properties before the court. Section 55 of the Act is apposite in the context to be extracted hereunder: “Police to take charge of articles seized and delivered-An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 24. It is provided in the provision supra that an Officer-in--charge of a Police Station shall take charge of and keep in safe custody pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him. It is provided in the provision supra that an Officer-in--charge of a Police Station shall take charge of and keep in safe custody pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him. It is further provided that the said officer shall allow any Officer with whom the articles have been entrusted and who have been ordered to accompany the articles to the Police Station to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with the seal of the officer-in-charge of the Police Station. In the case on hand PW1 has stated during examination that the properties have been brought to the Police Station by himself. He has further stated that the articles have been forwarded to the court through some other person. He has also stated that at the relevant time when the properties have been ordered to be returned, he was available at his office. Therefore, it is clear that the articles have been produced before the court not by himself, but through someone else. Section 55 NDPS Act obligates an officer who has received the properties at the police station to take charge thereof and to keep those in safe custody, pending orders of the Magistrate. It is further provided in Section 55 NDPS Act that the officer has to affix his seal on such articles. Going by the documentary evidence on record, it is pertinent to note that a seal of the nature is not found as affixed on any of the properties seized from the spot or any of the document prepared by PW1 from the police station and forwarded to the court. 25. In this connection it is pertinent to examine the forwarding note, which is marked in evidence as Ext.P10. The forwarding note is seen prepared on 6.2.2003, the date on which the properties have been forwarded to the court. But it is relevant to notice from the covering letter prepared by the court below and appended to the forwarding note that the same was prepared on 27.2.2003. From the endorsement made by the court below in Ext.P10, it is relevant to notice that it is dated 19.2.2003. But it is relevant to notice from the covering letter prepared by the court below and appended to the forwarding note that the same was prepared on 27.2.2003. From the endorsement made by the court below in Ext.P10, it is relevant to notice that it is dated 19.2.2003. Therefore, it can be concluded that though Ext.P10 was prepared on 6.2.2003, the same was forwarded to and received by the court below only on 19.2.2003. It is seen from the covering letter appended to Ext.P10 that it was prepared on 27.2.2003. Ext.P11 is the report of the Chemical Examiner, dated 10.7.2003. It is revealed from the endorsement of the chemical examiner in Ext.P11 that the sample of the contraband was received at the Chemical Examiner's Laboratory for examination on 3.3.2003. It is evidenced from the documents described supra that the properties seized from the spot reached the court below after three days and those have been sent for chemical examination with a delay of 29 days. Whatever be the delay and whoever be responsible for the delay, PW1, being an empowered officer under the NDPS Act, at whose instance the search, seizure and other requisite formalities were held, is duty bound to state the reasons. PW1 has stated production before an incompetent court as a reason, but, in the total absence of materials to substantiate it, the same is only to be discarded. PW1 has also no explanation for the delay occurred in preparing the forwarding note and forwarding of the same to the Court. Therefore, there is thorough failure of the prosecution to furnish cogent reason for the delay occurred in forwarding the samples of contraband from the court to the Chemical Examiner's Laboratory. Therefore, there is absolute want of explanation for the delay wherever that was occurred. As already stated, the property seized do not bear the seal of PW1 or any other officer. PW1 has also no case that the seized properties had been dealt with and kept under safe custody by anyone other than himself. On a scrutiny of the properties as well as the documentary evidence on record, this Court did not find a seal as affixed by PW1 on the properties or on the documents prepared and forwarded to the court. 26. In the aforesaid circumstances, the above contentions of the learned counsel for the appellant assume merit. On a scrutiny of the properties as well as the documentary evidence on record, this Court did not find a seal as affixed by PW1 on the properties or on the documents prepared and forwarded to the court. 26. In the aforesaid circumstances, the above contentions of the learned counsel for the appellant assume merit. According to him due to the delay occurred in forwarding the properties to the court, production of the samples before the chemical examiner from the court and for want of a seal affixed by a competent officer on the properties seized in tune with the mandate of Section 55 NDPS Act, tampering is difficult to be ruled out. Undoubtedly, the circumstances would prejudice the accused. 27. This Court has already found that there was delay in forwarding the properties to the court as well as in production of the samples before the Chemical Examiner's Laboratory. On a glance at the evidence on record, it is seen that the case of the prosecution suffers for want of evidence regarding safe custody of the properties during the period for which production of those was delayed. An explanation, though furnished by PW1 regarding the custody of the properties during the period of delay, it is found not reasonable. It is pertinent to note that during cross examination PW1 has pleaded ignorance regarding the custody of the properties but in reexamination, PW1 had stated that the properties were kept in his own safe custody during the period of delay. But for want of seal of PW1 on the properties, his version that the properties were in his safe custody is liable to be viewed with suspicion. Therefore, absolutely no evidence is forthcoming in the case to establish that the properties have been kept in the safe custody of an authorised officer during the period for which its production was delayed. Further contention advanced by the learned counsel was that Section 52 NDPS Act was not complied with. In this connection it is relevant to have the provision extracted hereunder: 52. Disposal of person arrested and articles seized.-(1) Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest. In this connection it is relevant to have the provision extracted hereunder: 52. Disposal of person arrested and articles seized.-(1) Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to- (a) the officer-in-charge of the nearest Police Station, or (b) the officer empowered under Section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article. 28. It has been stated in the provision that an empowered officer arresting a person under Sections 41, 42, 43, or 44 NDPS Act, shall immediately inform the person, of the grounds for such arrest. PW1, by whom the accused was arrested from the spot, has no claim that grounds of his arrest have been informed as mandated by Section 52 NDPS Act. 29. Yet another argument advanced by the learned counsel was that independent witnesses were not cited and examined by the prosecution in the case on hand. In this regard, it is relevant to notice from the oral evidence tendered by PW1 that the search and seizure being held before sunrise, there is difficulty in procuring independent witnesses to witness those. There cannot be any dispute that search and seizure were held before sunrise. Therefore, absence of independent witnesses to witness those cannot be taken to have a serious impact on the prosecution case. 30. The case on hand is one wherein 50.5 gms of brown sugar was allegedly seized from the possession of the accused. It is also the case of the prosecution that 50.5 gms of brown-sugar was also seized from inside the Maruti Car. 30. The case on hand is one wherein 50.5 gms of brown sugar was allegedly seized from the possession of the accused. It is also the case of the prosecution that 50.5 gms of brown-sugar was also seized from inside the Maruti Car. The argument of the learned Public Prosecutor was that since 50.5 gms of brown-sugar was seized from the possession of the accused, compliance of Section 50 NDPS Act is mandatory and the prosecution is not bound to comply with the requirements of Sections 41 and 42 NDPS Act. It is true that seizure of the contraband was effected from the possession of the accused. But it is pertinent to note that PW1 and other police party had proceeded to the spot after getting a reliable information. The time at which the information was received and they proceeded to the spot was before sunrise. Therefore, Sections 41 and 42 NDPS Act mandates that an officer who gets a reliable information regarding the concealment of a contraband in a concealed place, building or conveyance has to obtain a warrant or authorisation from the Jurisdictional Magistrate. Only when circumstances indicative of concealment of evidence or escape of the offender, the officer concerned can dispense with the procurement of warrant or authorisation as mandated by Section 42 NDPS Act. If such circumstances are found to exist, then the officer concerned has to record his reason for proceeding to the place without obtaining the warrant or authorisation. The search and seizure of contraband from the possession of the accused were held after reaching the spot. The only available material prior to proceeding to the spot was the information regarding the transportation of the contraband article in a vehicle. The time being before sunrise, necessarily the officer concerned has to procure search warrant or authorisation from the Jurisdictional Magistrate. In the case on hand, neither any search warrant or authorisation have been procured nor any reason for not procuring those have been evidenced as stated by PW1. Ext.P4 also does not contain any description or reason for non-procurement of the search warrant or authorisation. Therefore, this is a case wherein though compliance of Section 50 NDPS Act is there, for failure of the prosecution to comply with the mandates of Section 42 NDPS Act, the trial is totally vitiated as held by the Apex Court in Balbir Singh's case supra. 31. Therefore, this is a case wherein though compliance of Section 50 NDPS Act is there, for failure of the prosecution to comply with the mandates of Section 42 NDPS Act, the trial is totally vitiated as held by the Apex Court in Balbir Singh's case supra. 31. The intention of the legislature behind enactment of NDPS Act was to prevent illicit trafficking of narcotic drugs and psychotropic substances. Stringent punishments have been provided for various offences described thereunder. The intention of the legislature was specific to see that an innocent man shall not be made to suffer the stringent punishment provided under NDPS Act. It is for the reason that several formalities are provided under NDPS Act for compliance. 32. In the case on hand it is found that PW1, the detecting officer and the officer who has conducted the search, seizure and other formalities and registered the crime have done everything in a leisurely manner. Going by the evidence of PW1 it is seen that he was not specific and particular about the compliance of the mandatory requirements of NDPS Act in the case on hand or in otherwords he has stated categorically that things have been done by him in the manner as it was done. It was not something the legislature demands from an officer empowered under NDPS Act to register a case coming within its purview. 33. It is seen from the impugned judgment that the court below has not averted to the above said aspects while rendering the judgment under challenge. For the foregoing reasons the judgment under challenge suffers from illegality, impropriety, incorrectness and infirmity, which this Court is called upon to correct. In the result, this Crl.Appeal is allowed and the judgment under challenge is set aside. The bail bond of the accused is cancelled and he is set at liberty forthwith.