JUDGMENT : Sanjay K. Agrawal, J. 1. This acquittal appeal under Section 378 (1) of CrPC is directed against the impugned judgment dated 27/08/2008 passed by learned Special Judge (NDPS Act), Jagdalpur by which the respondent herein has been acquitted from the charge punishable under Section 20(b)[ii-(c)] of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter, 'the Act of 1985') holding that the prosecution has failed to bring home the offence in question. 2. The case of the prosecution, in brief, is that on 17/02/2008, at about 05:50 PM, on the way of Village Dhobiguda at N.H.43, the respondent was riding his motorcycle Hero Honda Splender bearing No. CG 10 ZJ/9176 having 20 kgs of ganja which was recovered from his possession punishable under Section 20(b)[ii-(c)] of the Act of 1985. 3. Further case of the prosecution, in brief, is that on 17/02/2008 at about 03:30 PM, Sub-Inspector Vivekanand (P.W.4) posted at Police Station Kotwali, Jagdalpur received information through telephone that two persons are riding on a motor cycle and they are carrying ganja to sell in Raipur. The said information was registered in Roznamcha Sanha No. 44 (Ex. P/20) and thereafter, at about 03:55 PM, he called Constable Moti Verma and two witnesses namely Raghunath (P.W.1) and Amar Dewangan (P.W.2) in the Police Station which was registered in Sanha No. 46 (Ex. P/21). The witnesses were told about the information received from the informant and Informer Panchnama (Ex. P/1) was prepared. Pursuant thereof, search warrant (Ex. P/2) and Crime Intimation panchnama (Ex. P/3) were prepared and the copies of Exhibits P/1, P/2 and P/3 were sent by Constable Moti Verma to the office of C.S.P., Jagdalpur which was mentioned in Ex. P/21. Sub-Constable Vivekanand (P.W.4) at about 04:05 PM, proceeded towards the place of occurrence along with witnesses Raghunath and Amar Dewangan which was registered at Roznamcha Sanha No. 47 (Ex. P/22) and intercepted the respondent herein who was riding his bike Hero Honda Splender bearing No. CG 10 ZJ/9176 along with one boy who was sitting behind him and between them, they were carrying a plastic bag. At about 04:30 PM, Sub-Inspector Vivekand (P.W.4) issued notice to the respondent under Section 50 of the Act of 1985 for searching the plastic bag vide Ex. P/4. The respondent agreed to the notice in writing. At about 04:30 PM, Sub-Inspector Vivekand (P.W.4) issued notice to the respondent under Section 50 of the Act of 1985 for searching the plastic bag vide Ex. P/4. The respondent agreed to the notice in writing. Thereafter, at about 05:00 PM, Sub-Inspector Vivekanand (P.W.4) found some objectionable material which looked like ganja from the plastic bag that the respondent was carrying on his motorcycle. Search Panchnama (Ex. P/6) and Recovery Panchnama (Ex. P/7) were prepared on the spot and notice under Section 91 of CrPC was given to the respondent (Ex. P/23) and the substance seized was identified as ganja by Rambhagat Tiwari (Ex. P/8) and it was weighed and found to be 20 kgs (Ex. P/11). Two packets of 25 gms each of ganja were prepared and after sealing them they were sent for chemical analysis and other formalities were completed. The FSL report was received vide Ex. P/28 in which the seized substance was found to be ganja. Thereafter, the respondent was chargesheeted for offence punishable under Section 20(b) of the Act of 1985. The appellant/accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined 4 witnesses and brought into record 29 documents. Statement of the respondent/accused was recorded wherein he denied guilt but he examined none in his defence. 5. Learned Special Court (NDPS Act), upon appreciation and evaluation of oral and documentary evidence on record, acquitted the respondent from the aforesaid charge holding that prosecution has failed to bring home the offence against which this acquittal appeal has been preferred by the appellant/State. 6. Mr. Ashish Tiwari, learned Government Advocate for appellant/State, would submit that learned Special Court is absolutely unjustified in acquitting the respondent herein from the aforesaid charges by recording a finding which is perverse and contrary to the record holding that there is non-compliance of the provisions contained under Sections 42(1), 55 and 57 of the Act of 1985 whereas Sections 55 and 57 of the Act of 1985 are directory in nature as held by the Supreme Court in the matter of Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 which has been followed subsequently in the matter of Babubhai Odhavji Patel and Others v. State of Gujarat, (2005) 8 SCC 725 . He would further submit that non-compliance of Section 42 of the Act of 1985 has been considered by Their Lordships of the Supreme Court in the matter of Karnail Singh v. State of Haryana, (2009) 8 SCC 539 . In the instant case, mere nonexamination of the officer who received the document Ex. P/29 at C.S.P., Jagdalpur would not mean that there is such non-compliance of Section 57 of the Act of 1985. Ex. P/3 i.e. Crime intimation under Section 42(2) of the Act of 1985 is an official document and it is presumed to be correct until contrary is proved and merely because constable Motiram Verma who delivered the said document to the office of C.S.P., Jagdalpur has not been examined, it cannot be held that there is non-compliance of Section 42(2) of the Act of 1985, as such, the impugned judgment is liable to be set aside. 7. Mr. Santosh Bharat, learned counsel for the respondent, would submit that though Sections 42, 55 and 57 of the Act of 1985 are directory in nature but in the instant case, the lapse is so fatal that the prosecution case has rightly been held to be suspicious by learned Special Court. Furthermore, Section 42 of the Act of 1985 has not been complied with at all and no witness has been examined to prove that the information was received in writing under Section 42(1) of the Act of 1985 and it was delivered to the office of C.S.P., Jagalpur by virtue of Section 42(2) of the Act of 1985, as such, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection. 9. The first question for consideration is whether learned Special Court (NDPS Act) is justified in recording the finding that provisions of Section 42 of the Act of 1985 has not been complied with in the instant case ? 10. In order to consider the plea raised at Bar, it would be appropriate to notice Section 42 of the Act of 1985, which states as under : “42. Power of entry, search, seizure and arrest without warrant or authorisation. 10. In order to consider the plea raised at Bar, it would be appropriate to notice Section 42 of the Act of 1985, which states as under : “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 paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all 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 of freezing or forfeiture under Chapter VA 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 thereunder, 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 subsection (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.” 11. Section 42(2) of the Act of 1985 came up for consideration before the Constitution Bench of Supreme Court in the matter of Karnail Singh (supra) in which their Lordships considered the statutory requirement of writing down and conveying information to superior officer prior to entry, search and seizure, while resolving the conflict between two earlier decisions rendered by the Supreme Court in the matters of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 and Sajan Abraham v. State of Kerala, (2001) 6 SCC 692 and 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 and while total non-compliance with requirements of Sections 42(1) and (2) is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. Their Lordships further held that non-compliance of Section 42 of the Act of 1985 may not vitiate the trial if it does not cause any prejudice to the accused and observed in paragraph 35 as under: “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 Subsection (1) of section 42) from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of subsections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear 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. 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.” 12. Reverting to the facts of the present case in light of the principle of law laid down by the Supreme Court in the matter of Karnail Singh (supra), it is quite vivid that in the instant case the information as required under Section 42 of the Act of 1985 was reduced in writing vide Ex. P/3 and it was sent through the Constable Motiram Verma on 17/02/2008 to be delivered to the office of C.S.P., Jagdalpur. The said document (Ex. P/3) though bears the seal of C.S.P., Jagdalpur but there are no initials of the person who received the said document. Moreover, neither Constable Motiram Verma has been examined to prove that it was delivered to the office of C.S.P., Jagdalpur as required under Section 42(2) of the Act of 1985 nor anyone from the office of C.S.P, Jagdalpur has been examined to prove that they have received the said information vide Ex. P/3 under Section 42(2) of the Act of 1985. Either constable Motiram Verma could have been examined to prove that he has delivered the said information (Ex. P/3) or someone from the office of C.S.P., Jagdalpur could have been examined to prove that the said information was delivered to them as required under the provisions contained in Section 42 of the Act of 1985, but none of them have been examined and that is the reason why learned Special Judge has recorded the finding that there is total non-compliance of Subsections (1) and (2) of Section 42 of the Act of 1985, which are mandatory in nature. 13. Their Lordships of the Supreme Court have clearly held in paragraph 35(d) of Karnail Singh (supra) that while total non-compliance of requirements of subsections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. 13. Their Lordships of the Supreme Court have clearly held in paragraph 35(d) of Karnail Singh (supra) that while total non-compliance of requirements of subsections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. 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 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. The principle of law laid down in Karnail Singh (supra) has further been followed by the Supreme Court recently in the matter of Boota Singh v. State of Haryana, (2021) SCC Online SC 324. 14. From the aforesaid legal discussion, it is quite evident that prosecution has failed miserably to prove the compliance of Section 42 of the Act of 1985 rather it is a case of total non-compliance of subsections (1) and (2) of Section 42 of the Act of 1985 covered by paragraph 35(d) of the judgment rendered by the Supreme Court in the matter of Karnail Singh (supra). As such, we are of the considered opinion that learned Special Court is absolutely justified in recording a finding that provisions of Section 42 of the Act of 1985 has not been complied with in the instant case and we hereby affirm the said finding. 15. The next question for consideration is whether learned Special Court is justified in recording the finding that there is non-compliance of Sections 55 and 57 of the Act of 1985 as well ? 16. Their Lordships of the Supreme Court in the matter of Gurbax Singh (supra) have clearly held that provisions of Sections 52 and 57 of the Act of 1985 are directory and their violation thereof would not ipso facto violate the trial or conviction. However, the investigating officer cannot totally ignore these provisions. 16. Their Lordships of the Supreme Court in the matter of Gurbax Singh (supra) have clearly held that provisions of Sections 52 and 57 of the Act of 1985 are directory and their violation thereof would not ipso facto violate the trial or conviction. However, the investigating officer cannot totally ignore these provisions. Such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. It has been in paragraph 9 as under :- “The learned counsel for the appellant next contended that from the evidence it is apparent that the IO has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the IO had no knowledge about the operation of the NDPS Act on the date of the incident as he recorded the FIR under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk.” 17. Reverting to the facts of the present case in light of the principle of law laid down by their Lordships of Supreme Court in the matter of Gurbax Singh (supra), it is quite vivid that in the instant case learned Special Judge has clearly recorded the finding that Section 57 of the Act of 1985 has not been complied with and though the information was sent in writing on 19/02/2008 vide Ex. P/29 to Superintendent of Police, Jagdalpur but no one has been examined to prove the said fact, neither from the Office of City Inspector, Police Station Kotwali, Jagdalpur to prove that the said information was duly sent nor from the office of Superintendent of Police, Jagdalpur to prove that the said information was received by them. As such, there is total non-compliance of Section 57 of the Act of 1985. 18. Similarly, non-compliance of Section 55 of the Act of 1985 is also found in the present case as the seized articles have not been sealed in accordance with Section 55 of the Act of 1985. We find the said finding recorded by learned Special Judge to be absolutely in accordance with law. Learned Special Judge has also recorded the aforesaid finding citing the reason that prosecution witnesses P.W.1 Raghunath and P.W.2 Amar Dewangan have not supported the case of the prosecution, which also appears to be correct and in accordance with law. We find the said finding recorded by learned Special Judge to be absolutely in accordance with law. Learned Special Judge has also recorded the aforesaid finding citing the reason that prosecution witnesses P.W.1 Raghunath and P.W.2 Amar Dewangan have not supported the case of the prosecution, which also appears to be correct and in accordance with law. In that view of the matter and the prejudice having been suffered by the respondent herein, we are unable to hold that learned Special Judge has committed any illegality in acquitting the respondent herein from the charge punishable under Section 20(b) [ii(c)] of the Act of 1985. We do not find any merit in this acquittal appeal. 19. Accordingly, the instant appeal stands dismissed.