Judgment Ms. Kirti Singh, J. The instant appeal is preferred against the judgment of conviction dated 16.01.2006 passed by the learned Presiding Officer, Special Court, Kurukshetra, whereby the appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (in short ‘the NDPS Act’) and was sentenced to undergo rigorous imprisonment for period of 03 years and to pay a fine of Rs.15000/- and in default of payment of fine to further undergone simple imprisonment for a period of 04 month. 2. The facts as put forth by the prosecution are that on 12.03.2002 SI Ram Singh along with other police officials were present on Barara Chowk, Shahabad when secret information was received to the effect that a white Maruti car bearing No.PB-07B-0666 was coming from Pipli side in which some narcotic substance was being taken to Ambala and if a nakabandi was laid then some narcotic substance could be apprehended. On this information nakabandi was laid. After some time the said car came and despite a signal to stop being given to the driver, the car did not stop and broke the naka. The car was followed and when the police jeep over took the car, then the car driver took a left sharp turn in the process of which the car went into a ditch, however the car driver managed to escape and abandoned the car. On checking the car, underneath the rear seat a gunny bag containing poppy husk was recovered which weighed 30 kgs out of which 200 gms was separated and a separate parcel was prepared and sealed with seal bearing letter ‘RS’ and after preparing specimen seal impressions, the case property was taken into possession vide recovery memo. The maruti car was also taken into possession along with its key-ring with a photograph of the accused. Ruqa was sent to the police station for registration of the case, on the basis of which formal a FIR was registered. Rough site plan was prepared and statements of the witnesses were recorded. On returning to the police station case property was deposited with the MHC. Report under Section 57 of the Act was also prepared. On 13.03.2002, SI went to the taxi stand and enquired about the said car and came to know that the said car was being driven by Shish Pal resident of Jharauli Khurd. On returning to the police station case property was deposited with the MHC. Report under Section 57 of the Act was also prepared. On 13.03.2002, SI went to the taxi stand and enquired about the said car and came to know that the said car was being driven by Shish Pal resident of Jharauli Khurd. Thereafter Jaspal, brother of the accused Shish Pal disclosed that he was the owner of the said car. Accused was arrested after serving him notice under Section 52 of the Act. After completion of investigation, challan report under Section 173 Cr.P.C. was forwarded to the court for trial of the accused. 3. After supplying the copies of challan and other documents accused was charge-sheeted under Section 15 of the NDPS Act on 10.10.2002, to which the accused pleaded not guilty and claimed trial. 4. In support of its case prosecution examined total 9 witnesses ASI Nasib Singh as PW1, Constable Om Chand as PW2, Saraj Ali as PW3, Waheguru Singh as PW4, Gurnam Singh as PW5, HC Rattan Singh as PW6, ASI Maya Chand as PW7, HC Chanan Ram as PW8, SI Ram Singh as PW9 and tendered report Ex.PX of FSL. 5. In the statement recorded under Section 313 Cr.P.C. accused denied all the allegations of the prosecution and pleaded false implication. No defence evidence was led by the accused. 6. Learned counsel appearing on behalf of the appellant has argued that there was complete non compliance of Sections 42 of the NDPS Act whereby the secret information was required to be supplied to the Senior Officer and the police official failed to do so. As per Section 42 of Act if the secret information is received regarding an offence under NDPS Act then it is the duty of the officer to inform his superior immediately about the offence not later than 72 hours. It was also submitted that PW-9 SI Ram Singh had admitted in his cross examination that he had not noted the secret information anywhere. Therefore there was total non compliance of the mandatory provisions of Section 42 of the NDSP Act. He further submits that the tampering of the sample was done and the contraband which was produced before the trial Court was in a torn condition and particulars like name of the accused, FIR were not visible and the contraband was put into some other polythene bag. He further submits that the tampering of the sample was done and the contraband which was produced before the trial Court was in a torn condition and particulars like name of the accused, FIR were not visible and the contraband was put into some other polythene bag. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in Karnail Sinlgh v. State of Haryana, and State of Rajasthan Vs. Jag Raj Singh @ Hansa 2016 (3) R.C.R. (Criminal) 539 and AIR 2016 SC 3041 . 7. The submissions made by learned counsel for the appellant were opposed by the learned State counsel by submitting that the mandatory provision of the NDPS Act had been complied with. Learned counsel further submitted that the Investigating Officer followed the complete procedure as prescribed by the statute and there was no violation as alleged. Apart from that it was also stated that it is a matter of common experience that independent witnesses do not join at the time of making recoveries of the contraband from the smugglers. Thus, it is made clear that the impugned judgment passed by the learned trial Court may be upheld. Analysis 8. I have considered the rival submissions made by the learned counsel for the parties. I find sufficient force in the arguments raised by the learned counsel for the appellant that there was complete non­compliance of Section 42 of the NDPS Act. Section 42 of the NDPS Act is reproduced as below: “42. Analysis 8. I have considered the rival submissions made by the learned counsel for the parties. I find sufficient force in the arguments raised by the learned counsel for the appellant that there was complete non­compliance of Section 42 of the NDPS Act. Section 42 of the NDPS Act is reproduced as below: “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 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 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.” 9. It has been held by the Hon’ble Supreme Court in Karnail Singh v. State of Haryana, 2005 (5) RCR Criminal 515 that the compliance of Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith sending a report to the immediate superior would cause prejudice to the accused. The relevant extract is reproduced as below:- “15) Under Section 42(2) as it stood prior to amendment such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same would adversely affect the prosecution case and to that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section. Abdul Rashid (supra) has been decided on 01.02.2000 but thereafter Section 42 has been amended with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused. 16) The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policy makers about it. 16) The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policy makers about it. Now for the last two decades police investigation has gone through a seachange. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the Register/Records kept for those purposes in the police station or the respective offices of the authorized officials in the Act if the emergency of the situation so requires. As a result, if the statutory provisions under Section 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers. 17. In conclusion, what is to be noticed is 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 Section 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 concerned Register 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" 10. The Hon’ble Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 has held as under:- “(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.” 11. In the instant case, PW9 SI Ram Singh who is the I.O. was the star witness of the prosecution who supported the case of the prosecution in all material particulars. However in his cross examination he clearly admitted that he acted on receipt of the secret information. He did not mention whether any secret information report was reduced in writing and that any intimation regarding the information was sent to his officers in writing. However in his cross examination he clearly admitted that he acted on receipt of the secret information. He did not mention whether any secret information report was reduced in writing and that any intimation regarding the information was sent to his officers in writing. Apart from that even from the perusal of the entire testimony, it is not discernible that he complied with the mandatory provisions of Section 42 of the NDPS Act at the time of search and seizure or within the period prescribed by the statute. It has been held by the Hon’ble Supreme Court in a plethora of judgments that the compliance of requirement of Section 42(1) and Section 42(2) of the NDPS Act in regard to writing down the information received and sending a copy thereof to the superior officers, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situation the recording of information in writing and sending a copy thereof to official superior may get postponed by a reasonable period, i.e. after the search, entry and seizure. While total non­compliance of Section 42 is impressible in law, delayed compliance with satisfactory explanation about the delay is acceptable compliance of Section 42 of the NDPS Act. In the instant case, there is complete non­compliance of the mandatory provisions of Section 42 of he NDPS Act. The first informant in the instant case had sufficient time to take action and to send a copy of the information, to the officer superior and in spite of the same, he did not adhere to the mandatory provisions of law. 12. With regard to the point of determination regarding gunny bag being in torn condition, a clear reading of the testimonies of PW-8 and PW-9 show that the gunny bag was in a torn condition and was lying in another polythene bag. The relevant extract of the testimony of PW-8 is reproduced as under:- “It is correct that the gunny bag is in torn condition and the witness also affirmed that the chura-post (poppy-husk) is not in the same gunny bag, in which, it was recovered, which is now in torn condition and same is now lying in another polythene bag. It is correct that there is no seal present on the gunny bag. It is correct that there is no seal present on the gunny bag. It is also correct that neither the name of the accused, nor the particulars of the present case i.e. FIR number, under Section, name of Police, are present on the gunny bag. Now there may be about 20 kgs. of poppy husk in the plastic bag. It is incorrect to suggest that there is no poppy husk, rather, it is a some kind of sand filled in the polythene bag. It is incorrect to suggest that no recovery was effected from the Maruti Car bearing registration no.PB07-B-0666. It is further incorrect to suggest that the accused has no concern with the alleged Car, nor he was driving the said vehicle at that time.” The relevant extract of the testimony of PW-9 is reproduced as under: “I had appended one seal on the gunny bag containing contraband. It was recovered at the spot. At this stage, learned defence counsel has pointed out that the gunny bag is torn. The witness has affirmed the identity of the gunny bag after going through giving details therein. After going through the case property the witness has affirmed that there are two seal impressions which are clearly visible. The witness has affirmed that both the seals of RS and had been appended by him. The witness also affirmed that the Chura Post (Poppy husk) is not in the same gunny bag in which it was recovered, which is now in torn condition and the same is now lying in another polythene bag.” 13. After carefully examining the entire records and in the light of the judgments rendered by the Hon’ble Supreme Court (Supra), this Court is of the considered view that there has been a complete non compliance of Section 42 of the NDPS Act which is mandatory. The testimonies of the star prosecution witnesses PW8 and PW9 prove that the gunny bag was in a torn condition and was lying in another polythene bag. The quantity of the poppy husk is also disputed and this fact alone is enough to cause a serious dent in the prosecution version. In the net result, this appeal is allowed giving benefit of doubt to the appellant. The quantity of the poppy husk is also disputed and this fact alone is enough to cause a serious dent in the prosecution version. In the net result, this appeal is allowed giving benefit of doubt to the appellant. The order of conviction dated 16.01.2006 passed by the learned Presiding Officer, Special Court, Kurukshetra is set aside and as a consequence the appellant is ordered to be acquitted. 14. Bail bonds and surety bonds of the appellant stand discharged. 15. Pending miscellaneous application(s), if any, shall also stand disposed of. 16. The case property, if any, may be dealt with as per rules after expiry of period of limitation for filing the appeal(s). Record of the case be sent back to the Court below.