JUDGMENT : The above appeal is filed by the accused in SC.No.105/2004 on the file of Special Judge(NDPS) cases Vadakara. 2. The accused was charge sheeted by the Kannur City Police alleging offence punishable under Sections 20(b)(ii)(A) and 18(c) of the Narcotic Drugs and Psychotropic Substances Act. (herein after referred as NDPS Act for short) 3. The prosecution case is that on 19.9.2003 at about 12.40 p.m, the Sub Inspector of Police, Kannur City searched House No.22/45 in Ward No.22 of Kannur Municipality belonging Ayishu, who is the mother of the accused. It is the further case of the prosecution that the accused was found in possession of 395 grams of opium, and 18 grams of ganja meant for sale, as concealed in the drawer of a table kept in a bedroom of the said house. The accused was arrested by the Sub Inspector of Police, and contraband articles were seized as per a search list. The case was registered by the Sub Inspector against the accused, and the case was later investigated by Circle Inspector of Police, Kannur City. After investigation, the police submitted the final report. 4. After the appearance of the accused, the court framed a charge against the accused under Sections 17(b) and 20(b)(ii)(A) of the NDPS Act. Later charge was altered to Section 20(b)(ii)A and under Section 17(b) or alternatively under Section 18(c) of the NDPS Act. To substantiate the case, the prosecution examined PW1 to PW8. Exts.P1 to P13 are exhibits marked on the side of the prosecution. MO1 to MO9 are marked as material objects. D1 is marked as Exhibit on the side of the defence. 5. Going through the evidence and documents, the Trial Court found that the accused committed the offence punishable under Sections 20(b)(ii)(A) and 18(c) of the NDPS Act. The accused is sentenced to undergo rigorous imprisonment for six months under Section 20(b)(ii)(a) of the NDPS Acts and rigorous imprisonment for five years and to pay a fine of Rs.20,000/-(Twenty Thousand) under Section 18(c) of the NDPS Act. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for one year. Aggrieved by the convictions and sentence this Criminal Appeal is filed. 6. Heard Advocate Vipin Narayan, the counsel for the appellant and B.Jayasurya, the Public Prosecutor. The counsel for the appellant raised only one point. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for one year. Aggrieved by the convictions and sentence this Criminal Appeal is filed. 6. Heard Advocate Vipin Narayan, the counsel for the appellant and B.Jayasurya, the Public Prosecutor. The counsel for the appellant raised only one point. According to him, there is a violation of Section 42(2) of the NDPS Act, and hence he is entitled to the benefit of the doubt. According to the counsel, even though the prosecution produced Ext.P1, which is alleged to be a report under Section 42(2) of the NDPS Act, there is no evidence to show that the same is received by PW8, who is the superior officer of PW1 in this case. According to the counsel, the prosecution has to prove that a report prepared under Section 42(1) of the NDPS Act is received by his immediate official superior. The counsel contended that there is an intention behind section 42(2)of the NDPS Act. The counsel submitted that, unless it is proved that the report is received by the immediate official superior, it cannot be presumed by the court. The counsel also submitted that Ext.P1 is not produced along with the final report. The copy of the same is not supplied by the court to him under Section 207 Cr.PC. The counsel also submitted that the compliance of Section 42(2) of the NDPS Act is not even put to the accused as an incriminating circumstance under Section 313 of Cr.PC. In such cases, the court cannot rely on such evidence and convict the accused. It is the sum and substance of the argument of the counsel for the appellant. 7. The Public Prosecutor submitted that there is substantial compliance of Section 42(2) of the NDPS Act. The Public Prosecutor submitted that PW1 deposed before the court that he send the report to his immediate official superior. He also deposed that there is an initial of the immediate official superior of PW1 in Ext.P1. Therefore, the court can safely presume that Section 42(2) of the NDPS Act has complied. 8. After hearing both sides, the short point for consideration in this appeal is whether there is the compliance of Section 42(2) of the NDPS Act. 9. He also deposed that there is an initial of the immediate official superior of PW1 in Ext.P1. Therefore, the court can safely presume that Section 42(2) of the NDPS Act has complied. 8. After hearing both sides, the short point for consideration in this appeal is whether there is the compliance of Section 42(2) of the NDPS Act. 9. For deciding about the compliance of Section 42(2) of the NDPS Act, it is better to extract Section 42 of the NDPS Act: “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 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 in this behalf by general or special order of the State Government, if he has reason to believe from personal 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 V-A 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 materials used in the manufacture thereof and any other article 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 in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation 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.” Section 42(2) says that, where an officer takes down any information in writing under Sub Section (1) or records grounds for his belief under the proviso to it, he shall within 72 hours send a copy thereof to his official superior. Section 42(1) says that the officers mentioned in that Section have reason to believe from personal knowledge or information given by any person and takedown in writing that any narcotic drug or psychotropic controlled substances in respect of an offence punishable under this Act has been committed or any documents or other articles which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other articles which may furnish evidence of holding any illegally acquired property, which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in a building, conveyance, or enclosed place, may between sunrise and sunset enter into and search in such building conveyance or place. Section 42(1) (b)says that if there is any resistance in such a situation, the officer can break open a door and remove any obstacle to such entry. Section 42(1)(c) says that officer can seize such articles and all materials used in the manufacture thereof and any other articles or any animal which he has reason to believe and liable to confiscation under this Act and any document or any 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 forfeiture under Chapter V-A of the Act. Section 42(1)(d) says about the detention, search, and arrest of the person whom he has reason to believe to have committed any offence. There is two proviso also to section 42(1). 10. The Constitution bench of the Supreme Court, after considering the entire aspects of the NDPS Act, found that compliance of Section 42(2) is mandatory. In Karnail Singh V.State of Hariyana [ 2009 (8) SCC 539 ], the Hon'ble Supreme Court after considering section 42 of the NDPS Act, concluded like this; 35. 10. The Constitution bench of the Supreme Court, after considering the entire aspects of the NDPS Act, found that compliance of Section 42(2) is mandatory. In Karnail Singh V.State of Hariyana [ 2009 (8) SCC 539 ], the Hon'ble Supreme Court after considering section 42 of the NDPS Act, concluded like this; 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 noncompliance 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 noncompliance 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.” 11. In the light of the above judgment, it is clear that compliance with the requirement of Section 42(1) and 42(2) regarding writing down the information received and sending a copy thereof to the superior officer should generally precede the entry, search and seizure by the officer. It is also held by the Apex Court that, noncompliance of the requirements of sub Section (1) and and (2) of Section 42 is impermissible. Delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. Therefore, it is clear that Section 42(1) and (2) of the NDPS Act is mandatory, and the total non compliance of the same will vitiate the trial. 12. The next point to be decided is whether the compliance of mandatory provisions in NDPS Act is to be proved by the prosecution. The burden of proof regarding the compliance of mandatory provisions in NDPS Act is considered by the Apex Court in Noor Aga v. State of Panjab and another [ 2008 (16) SCC 417 ]. 12. The next point to be decided is whether the compliance of mandatory provisions in NDPS Act is to be proved by the prosecution. The burden of proof regarding the compliance of mandatory provisions in NDPS Act is considered by the Apex Court in Noor Aga v. State of Panjab and another [ 2008 (16) SCC 417 ]. The relevant paragraph of the above judgment is extracted hereunder; “56. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the court to impose fine of more than maximum punishment of Rs.2,00,000 as also the presumption of guilt emerging from possession of narcotic drugs and psychotropic substances, the extent of burden to prove the foundational facts on the prosecution i.e. “proof beyond all reasonable doubt” would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance with the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of “wider civilisation”. The court must always remind itself that it is a well-settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Panjab v. Baldev Singh24 it was stated : (SCC p.199, para28) “28... it must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.” [emphasis supplied] In State of West Bengal and other v. Babu Chakraborthy [ 2004 (12) SCC 201 ], the Apex Court considered the same point. Relevant portion is extracted hereunder; "23. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. Relevant portion is extracted hereunder; "23. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a court of law and the accused while defending his prosecution. This court also held that failure to comply with Section 42(1) proviso to Section (1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. 24. In the case of Abdul Rashid Ibrahim Mansuri v.State of Gujarat, Koluttumotttil Razak v. State of Kerala, Beckodan Abdul Rahiman V. State of Kerala and in the case of Chhunna v. State of M.P this Court has held that the noncompliance with the provisions of the proviso to Sections 42 of the Act which is mandatory, the action was held illegal and the conviction of the accused was set aside. This court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with.” [emphasis supplied] 13. It is clearly stated in the above decisions that the onus to prove compliance lies on the prosecution. In the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with. So it is clear that the entire duty is on the prosecution to prove that the mandatory provision under Section 42 has complied in a given case. 14. The next question to be decided is whether the court can presume the official acts as far as the compliance of the mandatory provisions in NDPS Act. It is the settled position that to attract the statutory presumptions in connection to criminal offcences, it is the fundamental duty of the prosecution to establish the essential ingredients of the offence. In Directorate of Revenue and another V. Mohammed Nisar Holia [ 2008 (2) SCC 370 ] the Apex Court considered this point. Paragraph 17 to 19 is extracted hereunder; “17. In Directorate of Revenue and another V. Mohammed Nisar Holia [ 2008 (2) SCC 370 ] the Apex Court considered this point. Paragraph 17 to 19 is extracted hereunder; “17. This Court times without number has laid great emphasis on recording of reasons before search is conducted on the premise that the same would be the earliest version which would be available to a court of law and the accused while defending his prosecution. The provisions contained in Chapter IV (sic V) of the Act are a group of sections providing for certain checks on exercise of the powers of the authority concerned which otherwise would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance with the said provisions. If no evidence is led by the prosecution, the court will be entitled to draw the presumption that the procedure had not been complied with. For the said purpose, we are of the opinion that there may not be any distinction between a person's place of ordinary residence and a room of a hotel. 18. It may be placed on record that applying a sophisticated sense-enhancing technology called thermal imaging, which when kept outside the residential house of a person to ascertain as to whether the inmate has kept any narcotic substance or not has been held to be infringement of right of privacy of the said person in the United States Supreme Court decision of Kyllo v United States. The court opined that: “(1) use of sense-enhancing technology to gather any information regarding interiors of home that could not otherwise have been obtained without physical intrusion into constitutionally protected area constitutes a Fourth Amendment 'search', and (2) use of thermal imaging to measure heat emanating from home was search.” 19. in the instant case, the statutory requirements had not been complied with as the person who had received the first information did not reduce the same in writing. An officer who received such information was bound to reduce the same in writing and not for the person who hears thereabout. Furthermore, in this case, apart from proving the fax and the copy of a challan nothing else has been proved. The fax was illegible. It allegedly was received in the PCO run by PW17. He could not prove the contents of the fax. Furthermore, in this case, apart from proving the fax and the copy of a challan nothing else has been proved. The fax was illegible. It allegedly was received in the PCO run by PW17. He could not prove the contents of the fax. He also could not show when the same was received and from whom. It has not been shown that the accused was the person who obtained the said fax from PW17. Furthermore, contents of the said documents had not been proved. In absence of the aforementioned details, the fax being illegible and its contents being not known, the question of the same being admissible in evidence in terms of Section 67 (sic 66) of the Act would not arise. The xeroxed copy of the said fax had not been proved in the strict sense of the term. No secondary evidence could have been led to prove another secondary evidence. Contents of document are required to be proved. The contents of a document could be held to have been proved in terms of Section 66 only when the contents are decipherable and not otherwise." 15. The Apex Court observed that, if no evidence is lead by the prosecution regarding the compliance of mandatory provisions, the court will be entitled to draw a presumption that the procedure has not been complied with. Therefore, it is clear that the compliance of Section 42 of NDPS Act cannot be presumed without there being any evidence adduced by the prosecution. There is a purpose in Section 42(2) of the NDPS Act. This Court in Thulaseedharan V. State of Kerala [ 2002 (2) KLT 69 ] considered this part. Relevant portion is extracted hereunder; “10. The purpose behind S.42(2) has already been explained. The receipt of such a report would, to so some extent, ensure that the empowered officer do not misuse their power and make search and seizure only in genuine cases because based on the report that the official superior gets he would always be in a position to make immediate enquiries to convince himself that there was in fact a genuine information and a genuine seizure.” 16. In the light of the above decisions of the Apex Court and this Court, it is clear that compliance of Section 42 of the NDPS Act is mandatory. In the light of the above decisions of the Apex Court and this Court, it is clear that compliance of Section 42 of the NDPS Act is mandatory. It is also clear that prosecution must adduce evidence to prove the compliance of Section 42 of the NDPS Act. It is also to be noted that there is no presumption that Section 42 of the NDPS Act is complied, in a case where there is no evidence adduced by the prosecution regarding the compliance. 17. Moreover Section 42 of the NDPS Act is to provide fairness in the process of recovery and investigation, which is one of the basic features of the criminal proceedings. In Sukhdev Singh v. State of Hariyana [ 2013(2) SCC 212 ] the Apex Court observed that the amendment to Section 42(2) of NDPS Act is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated in Section 42(2). The relevant portion of Sukhdev Singh Case is extracted below: “15. Section 42 can be divided into two different parts: first is the power of entry, search, seizure and arrest without warrant or authorization as contemplated under sub-section(1) of the said Section; second is reporting of the information reduced to writing to a higher officer in consonance with sub-section(2) of that Section. Sub-Section(2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by Parliament vide Act 9 of 2001 with effect from 2-10-2001. After amendment of this sub-section, the word “forthwith” stood amended by the words "within seventy two hours." In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within seventy-two hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub-section(2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safe guards provided to an accused more meaningful. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safe guards provided to an accused more meaningful. In the present case, the information was received by the empowered officer on 4-2-1994 when the unamended provision was in force. The law as it existed at the time of commission of the offence would be the law which will govern the rights and obligations of the parties under the NDPS Act. (Emphasis supplied) 18. Now coming to the facts in the present case. The evidence available in this case is that of PW1, the Sub Inspector of Police who is the detecting officer. Pw2 is the Head Constable who accompanied PW1. PW3 to Pw5 are the alleged independent witnesses examined by the prosecution. But they turned hostile to the prosecution. PW6 is the Revenue Officer, Kannur Municipality, who proved Ext.P9 ownership certificate. PW7 is the Village Assistant, and he was examined to prove Ext.P10 site plan. Pw8 is the Investigating Officer in this case. He is the immediate superior officer of PW1. 19. In this case, the prosecution produced Ext.P1 report which is alleged to be a report under Section 42(2) of the NDPS Act. It is not clear from the evidence on how this report is marked by the Trial Court. I perused the final report submitted in this case, but Ext.P1 is not produced along with the final report. Ext.P1 is not there in the list of documents attached to the final report. Section 207 of Criminal Procedure Code says about 'supply to the accused of copy of the police records and other documents.' Section 207(i) to (V) Cr.P.C deals about the documents to be supplied to the accused. Section 207(iii) Cr.P.C says that the Magistrate shall without delay furnish to the accused free of cost a copy of statements recorded under sub Section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. Section 207 (v) says that, the Magistrate should furnish to the accused all documents and relevant extracts thereof forwarded to the Magistrate with the police report under Section (5) of Section 173 Cr.PC. Section 173 Cr.PC is extracted here under; “173. Report of police officer on completion of investigation.-(1) Every investigation under this Chapter shall be completed without unnecessary delay. Section 207 (v) says that, the Magistrate should furnish to the accused all documents and relevant extracts thereof forwarded to the Magistrate with the police report under Section (5) of Section 173 Cr.PC. Section 173 Cr.PC is extracted here under; “173. Report of police officer on completion of investigation.-(1) Every investigation under this Chapter shall be completed without unnecessary delay. (1-A) The investigation in relation to an offence under sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376DB or 376-E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the officer-in-charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forwarded to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or Section 376-E of the Indian Penal Code (45 of 1860). (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” 20. In the light of the above provision, it is clear that all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already send to the Magistrate during the investigation should be forwarded to the Magistrate along with the file records. When Section 173(5) Cr.P.C read along with Section 207 Cr.P.C, it is clear that the accused is entitled a copy of all the documents that are relied on by the prosecution. In Jahid Shaikh and others v. State of Gujarat and another [2011 (7) Supreme Court Cases 762] the Apex court considered the relevancy of supply of documents under Section 207 and 208 Cr.P.C. The relevant portion is extracted hereunder; “23.However, as pointed out by Mr. Prashant Bhushan, learned counsel appearing for the petitioners, the manner in which the charges had been framed, without giving the petitioners a meaningful opportunity of meeting the allegations made against them in the charge-sheet, will ultimately have a direct bearing on the trial itself. The duty of the Sessions Court to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 CrPC is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The duty of the Sessions Court to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 CrPC is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The fact that many of the accused persons were not provided with copies of the charge-sheet and the other relevant documents, as indicated in sections 207 and 208 CrPC, seriously affects the right of an accused to a free and fair trail.” This court also relied the above judgment of the Apex Court in Sathyan v. State of Kerla [ 2015 (1) KHC 269 ]. The relevant portion in the above judgment is extracted hereunder; "10. The non-production of Ext.P1 Seizure Mahazar before the court and, in turn, its non-supply to the appellant at the time of committal of the case by the learned Magistrate as well as its non-supply to the appellant by the court below before framing the charge, assume significance in this case. The defence has a right to know the allegations raised by the prosecution. The facts narrated in Ext.P1 leading to the arrest of the appellant and seizure of the contraband are the very basis of the prosecution in this case. The appellant has every right to have a copy of that document in order to defend himself against the allegations raised by the prosecution. But, such a significant document was not produced by the prosecution before the court. It was tendered by the prosecution while PW1 was being examined after elapsing more than seven years after the alleged arrest of the appellant and seizure of the contraband, for the purpose of marking the same through PW1. Definitely, the course adopted by the prosecution would have prejudiced the appellant. The prosecution has made use of such a belated stage without serving a copy of the same to the appellant and such a document has been relied on by the court below for finding the appellant guilty of a serious offence under S.55(a) of the Abkari Act. The Honourable Supreme Court in Jahid Shaikh v. State of Gujarat, 2011 KHC 4585 : 2011(7) SCC 762 : 2011 CriLJ 3944 has held as follows: “23.However, as pointed out by Mr. The Honourable Supreme Court in Jahid Shaikh v. State of Gujarat, 2011 KHC 4585 : 2011(7) SCC 762 : 2011 CriLJ 3944 has held as follows: “23.However, as pointed out by Mr. Prashant Bhushan, learned counsel appearing for the petitioners, the manner in which the charges had been framed, without giving the petitioners a meaningful opportunity of meeting the allegations made against them in the charge-sheet, will ultimately have a direct bearing on the trial itself. The duty of the Sessions Court to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 CrPC is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The fact that many of the accused persons were not provided with copies of the charge-sheet and the other relevant documents, as indicated in sections 207 and 208 CrPC, seriously affects the right of an accused to a free and fair trail.” The law thus laid down by the Honorable Supreme Court is applicable to this case as well because, a material document which forms part of the basis of the prosecution case against the appellant was kept away from the court as well as from the appellant till it was marked through PW1 after elapsing seven long years. This, in fact, has prejudiced the appellant. This fact also throws shadow of doubt on the prosecution version of the occurrence.” 21. Admittedly the copy of Ext.P1 is not supplied to the accused. Ext.P1 is not produced along with the final report. Then how Ext.P1 was marked is not known to this court. Under such circumstances, I am prima facie not in a position to accept Ext.P1 report. 22. Assume for argument sake Ext.P1 is accepted, what is the effect is the next question. 23. PW1, in his evidence, deposed that he prepared Ext.P1 report and forwarded the same to his immediate official superior. Admittedly, the immediate official superior of PW1 is PW8. According to PW1 he sends Ext.P1 to PW8. Therefore, the person through whom Ext.P1 is to be marked is PW8. But PW8 is silent about the receipt of Ext.P1. Ext.P1 is marked through PW1. Of course, PW1 deposed that there is an initial of PW8 in Ext.P1. Admittedly, the immediate official superior of PW1 is PW8. According to PW1 he sends Ext.P1 to PW8. Therefore, the person through whom Ext.P1 is to be marked is PW8. But PW8 is silent about the receipt of Ext.P1. Ext.P1 is marked through PW1. Of course, PW1 deposed that there is an initial of PW8 in Ext.P1. This court cannot presume that the initial seen Ext.P1 is that of PW8. The apex court in Mohd Nisar Holias's case (supra), it is held that the contents of a document could be held to have proved in terms of section 66 of the NDPS Act only when the contents are decipherable and not otherwise. The best person to prove the initial in Ext.P1 is PW8, who made it. PW8 has not adduced any evidence to the effect that he received Ext.P1 report, or he put his initials in it. In such circumstances, how can this court accept Ext.P1 as a report under Section 42(2) of the NDPS Act is the question in this case. 24. In the light of the decisions of the Apex Court extracted above, it is clear that the prosecution has to prove compliance with mandatory provisions in NDPS Act. There is no presumption as far as official acts are concerned. The word used in Section 42(2) is "send". There is indeed a difference between "send" and "giving". But every word in a Section has to be considered based on the intention of the Legislature. The intention of Section 42(2) is clearly mentioned in Thulaseedharan's case(supra) by this court. It is true that the literary meaning of the word "send" means only dispatch of an item. But "giving" a thing is ordinary understood in English is not complete unless it reaches the hand of the person to whom it has to be given. The word used in Section 42(2) is "send", but we have to interpret the word "send" in the light of the importance of the same in that section. Section 42(2)of NDPS Act is mandatory. When the words in a mandatory provision are to be interpreted, it has to be interpreted strictly. In Banarsi Debi V. Income Tax Officer, District IV, Calcutta and others [ AIR 1964 SC 1742 the Apex Court observed like this: “Section 4 of the Amending Act was enacted for saving the validity of notices issued under Section 34(1) of the Act. In Banarsi Debi V. Income Tax Officer, District IV, Calcutta and others [ AIR 1964 SC 1742 the Apex Court observed like this: “Section 4 of the Amending Act was enacted for saving the validity of notices issued under Section 34(1) of the Act. When that Section used a word interpreted by courts in the context of such notices it would be reasonable to assume that the expressions was designedly used in the same sense. That apart, the expressions “issued" and "served" are used as inter-changeable terms both in dictionaries and in other statues. The dictionary meaning of the word "issue" is "the act of sending out, put into circulation, deliver with authority or delivery". Section 27 of the General Clauses Act (Act X of 1897) reads thus: “Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions, “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be affected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” It would be seen from this provision that Parliament used the words "serve", "give" and "send" as inter-changeable words. So too, in Ss.553, 554 and 555 of the Calcutta Municipal Act, 1951, the two expressions "issued to" or "served upon" are used as equivalent expressions. In the legislative practice of our country the said two expressions are sometimes used to convey the same idea. In other words, the expression "issued" is used in a limited as well as in a wider sense. We must, therefore, give the expression "issued" in S.4 of the Amending Act that meaning which carries out the intention of the Legislature in preference to that which defeats it. By doing so we will not be departing from the accepted meaning of the expression, but only giving it one of its meanings accepted, which fits into the context or setting in which it appears." 25. By doing so we will not be departing from the accepted meaning of the expression, but only giving it one of its meanings accepted, which fits into the context or setting in which it appears." 25. Therefore, the word 'send' used in Section 42(2) is to be interpreted to the effect that the prosecution has to prove that the report mentioned in it is actually received by the immediate official superior. This can be proved by oral evidence also. Once such oral evidence is adduced by the prosecution, the burden shift to the accused to rebut the same. 26. In this case even though PW1, the detecting officer, has got a case that he forwarded Ext.P1 report to his immediate superior, who is PW8. PW8 has no such case. PW1 also deposed that there is an initial of PW8 in Ext.P1. But, PW8 has not identified his initial in Ext.P1. When the person who made the initial is available and if he is not identifying his initial in Ext.P1, the evidence of PW1, to the effect that the initial seen in Ext.P1 is that of PW8, cannot be accepted. In such a situation, there is no evidence to show that Ext.P1 was received by PW8. 27. As I stated earlier, the existence of Ext.P1 itself is doubtful. The prosecution has not proved that Ext.P1 is actually received by PW8. PW8 is the investigating officer in this case. It is his duty to show that all the mandatory provisions of NDPS Act are complied in the case. When PW8, the investigating officer himself, is keeping silent about the compliance of Section 42(2), it is doubtful whether the report under Section 42(2) is received by PW8. As stated by the Apex Court, which is extracted earlier, there is no presumption about the compliance of Section 42(2). The prosecution has to prove by adducing evidence that there is a report under Section 42(2), and that is received by the superior officer. This can be proved through oral evidence also. But when the immediate superior officer is available in court and was examined in the court, it is the duty of the prosecution to ask questions about the receipt of Ext.P8. Simply because the accused has not put any question to PW8 regarding receipt of Ext.P1, the prosecution cannot escape. This can be proved through oral evidence also. But when the immediate superior officer is available in court and was examined in the court, it is the duty of the prosecution to ask questions about the receipt of Ext.P8. Simply because the accused has not put any question to PW8 regarding receipt of Ext.P1, the prosecution cannot escape. It is the fundamental duty of the prosecution to prove the case beyond reasonable doubt. As far as the mandatory provisions of NDPS Act are concerned, the oral and documentary evidence of the officer concerned is material. In this case, that is lacking. On this point also, I think the accused is entitled benefit of the doubt. 28. In addition to this, another important aspect is that the compliance of Section 42(2) of the NDPS Act is not put to the accused under Section 313 Cr.P.C. I perused the Section 313 Cr.P.C. statement of the accused. If the incriminating materials are not brought to the notice of the accused while examining them under Section 313 Cr.P.C., the court cannot use that part of the evidence to convict an accused. The Apex Court in Inspector of Customs, Akhnoor, Jammu and Kashmir v. Yashpal and another (2009) 4 SCC 769 considered this point. Paragraph 13,16 and 17 of the above said judgment is extracted herein below : “13. It is to be noted that the High Court did not accept the stand relating to noncompliance with Section 41(2) of the Act. It only interfered on the ground that the relevant incriminating materials were not put to the accused when they were being examined. 16. It is to be noted that in the instant case there was no reference to any of the incriminating materials. If the foundation of the prosecution case was the alleged confession before the Customs Authorities, that material was not brought to the notice of the accused persons. 17. Above being the position, there is no infirmity in the impugned judgment to warrant interference. The appeal is dismissed.” 29. When the compliance of Section 42(2) is an important evidence relied by the prosecution and if it is not put to the accused under Section 313 Cr.P.C., the same cannot be relied by the court to convict an accused. 30. At this stage, the Public Prosecutor prayed for a remand of the case. The appeal is dismissed.” 29. When the compliance of Section 42(2) is an important evidence relied by the prosecution and if it is not put to the accused under Section 313 Cr.P.C., the same cannot be relied by the court to convict an accused. 30. At this stage, the Public Prosecutor prayed for a remand of the case. The alleged seizure, in this case, happened about 17 years back. The appellant is convicted for the possession of a small quantity of ganja and an intermediary quantity of opium. I already found that the alleged report produced by the prosecution as a report under section 42(2) of the NDPS Act itself is suspicious. Moreover, the power of remand can only be excercised after evaluating the facts and circumstances of each case. I don't think that this is a fit case to order a remand. In the light of the discussion made above, I think the accused is entitled the benefit of doubt. Hence this Cr.Appeal is allowed. The conviction and sentence imposed on the accused as per the judgment dated 6.5.2005 of the Special Judge (NDPS Act Cases), Vadakara is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled.