JUDGMENT : 1. Heard Mr. N. Ratan, learned counsel for the appellant, and Mr. G. Tado, learned Additional Public Prosecutor for the State of Arunachal Pradesh. 2. This appeal is filed under Section 374 (2) read with Section 382 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) and read with Section 36B of the NDPS Act, 1985 by the accused/appellant Smti Misa Danggen challenging the judgment and order dated 07.01.2019, passed by the learned Special Judge, (NDPS)-cum-Additional Sessions Judge, Basar, Western Zone, Arunachal Pradesh in Case No. BSR/SESS-28/2016 whereby she has been convicted under Section 17(a) of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 (ten) months and to pay a fine of Rs. 5,000/- (Rupees five thousand) only and in default to further undergo rigorous imprisonment for 1 (one) month. 3. The brief facts of the case is that on 30.09.2014, a written complaint was lodged by the Officer-in-Charge of Aalo Police Station stating inter alia that on receipt of a secret information from reliable source, he had conducted an enquiry at Bn Colony at Aalo regarding selling of opium and recovered 51 numbers of opium coated cloth rolls weighing approximately 158 grams produced by Misa Danggen and accordingly the said opium were seized and accused/ appellant was brought to Aalo Police Station for further enquiry wherein she admitted that she had brought the opium for medicinal purpose from Mariyang. Accordingly, a case was registered vide Aalo P.S. Case No. 97/2014 under Section 18(A) of the NDPS Act and the matter was endorsed for investigation. 4. During investigation, the accused/ appellant was arrested and the Investigating Officer recorded the statements of the available witnesses. Meanwhile, the seized alleged opium was sent for chemical examination to Forensic Science Laboratory (FSL) at Bunderdewa. On receipt of the FSL report it reveals that the seized materials contained opium which comes under the purview of the NDPS Act. After conclusion of the investigation, the I.O. submitted charge sheet under Section 17(b) of the NDPS Act against the accused/appellant before the learned Chief Judicial Magistrate, Aalo. Subsequently, the trial of the case was commenced in the court of the learned Special Judge (NDPS)-cum- Additional Sessions Judge, Basar. The learned trial court framed charge under Section 17(b) of the NDPS Act against the accused/appellant to which she pleaded not guilty and claimed to be tried. 5. Subsequently, the trial of the case was commenced in the court of the learned Special Judge (NDPS)-cum- Additional Sessions Judge, Basar. The learned trial court framed charge under Section 17(b) of the NDPS Act against the accused/appellant to which she pleaded not guilty and claimed to be tried. 5. To prove the guilt of the accused/ appellant, the prosecution examined as many as 6 (six) witnesses. On the other hand the accused/ appellant examined herself as DW 1 in support of her case. 6. After completion of trial, the statement of the accused/ appellant was recorded under Section 313 Cr.P.C. wherein all the incriminating materials found in the evidence was put before her and she admitted that she was arrested and from her possession, opium was seized and she had kept the opium for medicinal purpose and not for commercial purpose. 7. It was urged by the learned counsel for the accused/ appellant Mr. N. Ratan that the case of the prosecution must fail for non-compliance of the statutory provision of Section 42 of the NDPS Act. This provision is mandatory and in the present case there is admittedly non-compliance of the said provision. Thus, the accused/ appellant is entitled for acquittal as the whole case of the prosecution is vitiated. 8. In support of his submission, learned counsel for the accused/ appellant has placed reliance on the following case laws:- (i) (2000) 8 SCC 590 (Roy V.D. vs. State of Kerala). (ii) (2016) 11 SCC 687 (State of Rajasthan Vs. Jagraj Singh alias Hansa). (iii) 2016 (2) GLT 171 (Chow Chiktawa Jeinow Vs. State of Arunachal Pradesh & Ors). 9. Per contra, the learned Addl. Public Prosecutor, Mr. G. Tado has submitted that there is substantial compliance of the provision of Section 42 of the NDPS Act and therefore the concurrent judgment of conviction and order of sentence do not call for any interference. In support of his submission, the learned Addl. Public Prosecutor has cited the following case laws:- (i) 2003 (3) Supreme 397 (Karamjit Singh Vs. State (Delhi Administration). (ii) 2003 (7) Supreme 61 (M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Inteligence) (iii) 2005 (6) Supreme 623 ( G. Srinivas Goud Vs. State of A.P.). 10. In order to examine the merit or otherwise of the above contention, it is necessary to discuss the entire gamut of the prosecution evidence. 11. State (Delhi Administration). (ii) 2003 (7) Supreme 61 (M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Inteligence) (iii) 2005 (6) Supreme 623 ( G. Srinivas Goud Vs. State of A.P.). 10. In order to examine the merit or otherwise of the above contention, it is necessary to discuss the entire gamut of the prosecution evidence. 11. PW 1, Sri Sanjay Dangen, who is the husband of the accused/appellant. He deposed in his evidence that one day police came to his house and arrested his wife. At police Station he asked the accused/appellant why she had been arrested, then she told him that police had seized some opium from her possession. The accused person had produced one horlicks plastic bottle inside which she had collected opium in small jute clothes for medicinal purpose. The said opium was seized in his presence and he put his signature accordingly in the seizure list vide Ext. 1. In the cross-examination, PW 1 replied that the Inspector O. Tamut told him to sign on the seizure list in the police station by telling him that he (Inspector O.Tamut) had seized materials from his wife. On enquiry his wife told him that she had collected the opium for medicinal purpose. 12. PW 2 Mr. Tashi Yangi is one of the seizure witnesses. His deposition revealed that on 30.09.2014 while he was posted at Aalo Police Station, as Sub-Inspector, Officer-in-Charge of Aalo Police Station seized 51 numbers of opium coated clothes weighing 158 grams in his presence and he put his signature in the seizure list vide Ext. 1(B). This witness was not cross-examined. 13. PW 3 Sri Olik Tamut was the Officer-in-Charge of Aalo Police Station at the relevant time of incident and he had also partly investigated the case. He deposed in his evidence that in the month of September, 2014, while he was posted at Aalo Police Station, as Officer-in-Charge he had received information from reliable source that drug trafficking was being committed by some of police personnel inhabited at 2nd Bn Colony, Alo. On enquiry he came to know that the present accused/ appellant was involved and accordingly he seized 51 numbers of opium coated clothes weighing approximately 158 gram from the official quarter of Constable Sri Sanjay Danggen (PW 1) on being produced by his wife, who is the present accused/ appellant. 14. On enquiry he came to know that the present accused/ appellant was involved and accordingly he seized 51 numbers of opium coated clothes weighing approximately 158 gram from the official quarter of Constable Sri Sanjay Danggen (PW 1) on being produced by his wife, who is the present accused/ appellant. 14. This witness also deposed that the seizure was made by a team of police consisting of IRBn and SB which was led by him on 30.09.2014 at 1830 hrs in presence of the witnesses. After seizure, he had lodged the FIR, which was registered as Aalo P.S. Case No. 97/2014 and the case was endorsed to Sub-Inspector T. Angu for investigation. 15. In his cross-examination, PW 3 replied that as Officer-in-Charge of Aalo Police Station, he seized opium without search warrant. He further stated that he as a gazetted officer seized the contrabands in absence of Magistrate. The accused voluntarily produced the seized opium. The Special Branch (SB) was not appointed to investigate or seize narcotics but only to furnish reliable information. The FIR was forwarded to Magistrate and he could not disclose the source of his information. 16. PW 4 is the Inspector Kayin Ering. From his deposition it discloses that in the month of September, 2014, while he was posted at Aalo as Company Commander of 5th IRBn D. Company, a meeting was called by the Superintendent of Police, Aalo wherein he was directed to assist the Civil Police in any urgent matter concerning drug trafficking etc. The then Officer-in-Charge, Aalo Police Station asked to accompany him during seizure of opium from the official quarter of the husband of the accused. Accordingly on 30.09.2014 he accompanied the Officer-in-Charge, Aalo P.S. and he was also present during seizure of 51 numbers of opium coated clothes weighing 158 grams. This witness was also not cross-examined by the defence counsel. 17. PW 5 Ms. S. Ibema Devi was the Scientific Officer, who examined the seized items and submitted report that the brown coloured sticky substance adhering to the cloth in the form of balls and on examination of items, she identified the items to be opium, which comes under the purview of the NDPS Act. 18. PW 6 Sub-Inspector T. Angu was the Investigating Officer of the case. 18. PW 6 Sub-Inspector T. Angu was the Investigating Officer of the case. He deposed in his evidence that a written FIR was lodged by Inspector O. Tamut, the then Officer-In-Charge of Aalo Police Station stating that accused was found in possession of 51 numbers of opium coated rolls of clothes weighing 158 grams . Accordingly, the FIR was registered and he was entrusted to investigate the case. 19. During investigation he recorded the statement of the witnesses. He drew the sketch map of the place of occurrence which was the Government Quarter No. 11 belonging to the husband of the accused/ appellant situated at 2nd APP Bn Barrack line. The informant being the Officer-in-Charge had seized the opium by preparing seizure list dated 30.09.2014 in presence of the witnesses. He examined seizure witnesses, who admitted of witnessing of seizure made by Inspector O. Tamut. The seized contraband was sent to the Forensic Science Laboratory at Banderdewa and FSL report was collected by him which indicated the presence of the opium in the seized exhibits. Then the accused was arrested and later on she was released on bail by the court. 20. According to PW 6, the Investigation reveals that the accused was found in possession of opium and the quantity found available in her possession does not make it believable that the same was used for medicinal purpose only. The 51 rolls of opium may be small quantity in terms of weight but the same has high commercial value in the market. Since the justification of the accused in possessing the opium for medicinal purpose is only to save herself therefore, a strong prima-facie case under Section 17 of the NDPS case was made out and accordingly charge sheet was submitted. 21. In his cross-examination, PW 6 replied that the weight of opium weighing 158 grams is inclusive of the opium and clothes. The opium was pasted in clothes in such a manner as removing of only opium out of clothes is not possible without dissolving the cloth ball into water. The actual quantity of pure opium may be lesser than 158 grams but same can be weighed only by dissolving opium cloth ball inside water and extract the residue from the water by evaporation. He was not present during seizure of opium. As per seizure list, the Magistrate was not present during seizure. 22. The actual quantity of pure opium may be lesser than 158 grams but same can be weighed only by dissolving opium cloth ball inside water and extract the residue from the water by evaporation. He was not present during seizure of opium. As per seizure list, the Magistrate was not present during seizure. 22. After going through the evidence of the aforesaid witnesses, it reveals that Officer-in-Charge of Aalo Police Station, on receipt of the secret informant from reliable source that drug trafficking is being committed by some of police personnel, he made an enquiry and visited the house of the accused. On being asked the accused/appellant produced opium coated clothes and he seized 51 numbers of opium coated clothes weighing 158 grams from the official quarter of Constable Sri Sanjay Danggen (PW 1). 23. It is clear from the evidence of PW 3 that he on receiving the secret information, neither reduced the same in writing nor he communicated it to his senior officer about receiving the secret information as required under Section 42 of the NDPS Act. In his cross-examination, PW 3 admitted that as an Officer-in-Charge of Aalo Police Station, he seized the opium without search warrant and he being gazetted officer seized the contraband items in absence of Magistrate. 24. The learned Addl. Public Prosecutor, Arunachal Pradesh has further argued that Sections 42 and 43 do not require an officer to be a gazetted officer whereas Section 41(2) requires an officer to be so. A gazetted officer has been differently dealt with and more trust has been reposed on him can also be seen from Section 50 of the NDPS Act which gives right to a person about to be searched to ask for being searched in presence of a gazetted officer. The Supreme Court in the case of M. Prabhulal (supra) has observed that the High Court is, thus, right in coming to the conclusion that since the gazetted officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 of the NDPS Act and therefore, it is not necessary to comply with Section 42 of the NDPS Act. 25. Now, the question that arose for consideration as to what stage and by what time, the authorized officer should comply with the requirements of Section 42 of the NDPS Act and report the matter to his superior officer. 25. Now, the question that arose for consideration as to what stage and by what time, the authorized officer should comply with the requirements of Section 42 of the NDPS Act and report the matter to his superior officer. For this purpose perusal of Section 42 of the NDPS Act is required at this stage, which reads as follows:- “42. 25. Now, the question that arose for consideration as to what stage and by what time, the authorized officer should comply with the requirements of Section 42 of the NDPS Act and report the matter to his superior officer. For this purpose perusal of Section 42 of the NDPS Act is required at this stage, which reads as follows:- “42. Power of entry, search, seizure and arrest without warrant or authorisation.—(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered 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 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 or 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 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.” 26. A bare reading of the aforesaid provision, it reveals that the provisions of Section 42 of the NDPS Act are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish his information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. The compliance of Section 42 (2) of the NDPS Act is mandatory and there cannot be an escape from its strict compliance. 27. I have already indicated that learned Addl. Public Prosecutor has categorically stated that when search was conducted by a gazetted officer himself, compliance of Section 42 of the NDPS Act is not necessary as per decision of the Hon’ble Supreme Court vide M. Prabhulal (Supra). The Hon’ble Supreme Court also had taken the same view in the case of Union of India Vs. Satrohan, reported in (2008) 8 SCC 313 that if the search was conducted by a gazetted officer himself, compliance with Section 42 is not necessary. 28. Now, the question comes whether PW 3 is a gazetted officer or not when he had conducted search and seizure in the house of the accused/appellant. 29. In support of the fact, the learned Addl. PP has produced one Notification of the Government of Arunachal Pradesh dated 3rd March, 2005. As per the said Notification, it reveals that in exercise of powers conferred by the Proviso to Article 309 of the Constitution of India, the Governor of Arunachal Pradesh was pleased to confer Group “B” Gazetted status to the post of Inspector of Police in the Department of Home under the Government of Arunachal Pradesh with immediate effect. 30. From the said Notification dated 3rd March, 2005, it transpires that the post of Inspector of Police has gazetted status since March, 2005. 30. From the said Notification dated 3rd March, 2005, it transpires that the post of Inspector of Police has gazetted status since March, 2005. In the present case in hand, the incident occurred in the month of September, 2014 when PW 3 on receipt of secret information from a reliable source had visited the house of the accused/ appellant and conducted search thereon and found 51 numbers of opium coated clothes weighing 158 grams from the official quarter of Constable Sri Sanjay Danggen (PW 1), on being produced by his wife, the present accused/ appellant. Apparently, PW 3 being a gazetted officer has the right to search and seizure and it is not necessary to comply with the provision of Section 42 of the NDPS Act. 31. It is an admitted fact that 51 numbers of opium coated clothes weighing 158 grams were found from the possession of the accused/ appellant. She had admitted the fact in her statement while recording under Section 313 of the CrPC that the opium was seized from her possession. She had kept opium for medicinal purpose and she had been using opium for various ailments of her family and she had not used opium for commercial purpose. 32. The accused/ appellant was examined herself as DW 1 and in her evidence, she also admitted that some opium was recovered from her possession, which was coated in small cloth ball. She used to keep it only for medicinal purpose and not for commercial purpose. Since time immemorial the tribal people are using opium in small quantity by diluting it in water as medicine for various ailments. She never sold opium for earning money. In the field the opium is also used for snake bite. 33. Though the accused/ appellant stated that she used opium for medicinal purpose to cure various ailments of her family but there is no authenticity at her statement as the accused/ appellant does not disclose anywhere in her statement or averment that as to what type of disease she used to treat by applying opium. Only in her cross-examination she replied that she used opium as medicine for loose motion. Subsequently, she has also stated that she used to cultivate opium and the seized contraband items were cultivated and produced by herself. Only in her cross-examination she replied that she used opium as medicine for loose motion. Subsequently, she has also stated that she used to cultivate opium and the seized contraband items were cultivated and produced by herself. If the accused/appellant kept opium for medicinal purpose only which requires a small quantity for which cultivation of opium is not required. She could collect a small quantity of opium at any time as per her requirement. 34. According to the evidence of the witnesses, 51 numbers of opium coated clothes weighing 158 grams were found from the possession of the accused/ appellant. If she had no intention to keep opium secretly, she could have stored it in a simple packet for personal consumption. Why she had kept opium in the shape of ball and stick to the coated clothes from which a reasonable prudent man could understand that the person does not want to disclose the fact to others. 35. Under such backdrop, it can be said that though the husband of the accused/ appellant stated that he had no knowledge about possession of opium by his wife, but it is not possible for his wife alone to make such business in this way at police quarter. Drug menace is one of the serious issues facing the society and the young minds are becoming easy targets to the peddlers and traffickers of narcotic drugs. 36. In view of the above, I am of the opinion that the appeal is devoid of any merit and is dismissed accordingly. The accused/ appellant is directed to surrender before the trial Court to serve out the sentence and to pay the fine accordingly as per the judgment of the Trial Court. 37. Send back the LCR.