JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the acquittal of the respondent for the commission of offence punishable under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’), the State has filed the instant appeal. 2. We really wonder why the State has filed the instant appeal, given the fact that it is the admitted case of theprosecution that instant was a case of prior information, yet the provisions of Section 42 of the Act have not been complied with. 3. This would be further clear from the factual matrix of the case that on 01.02.2014, Rahul Sharma, Investigating Officer along-with HC Govind, Constable Suresh, Lady Constable Kamlesh and Constable Ashok Kumar was present in Nerwa market at about 5.30 p.m. He received a secret information regarding indulgence of the respondent in the sale of ‘Rexcof’ syrup and was stated to be residing in the third floor of the house of one Chajju Ram. 4. It is further case of the prosecution that the I.O. associated two independent witnesses, namely, Ashwani Kumar (PW-1) and Ramesh Zinta (PW-6) and searched the house of the respondent in their presence and recovered seven bags, which were found containing 567 bottles of ‘Rexcof’ syrup, each bottle having 100 ml. The ‘Rexcof’ along-with bag was put in three sacks and those three sacks were thereafter sealed with seal ‘E’ by affixing two seals on each of the sack. After obtaining seal impression of seal ‘E’ on a separate piece of cloth, the I.O. filled in NCB form in triplicate and obtained the specimen of seal ‘E’ on it and the seal after use was handed over to witness Ashwani Kumar. 5. During search of the room of the respondent, currency notes of Rs.39,500/- were also recovered and taken into possession vide seizure memo Ext.PW-10/B. The I.O. prepared the spot map Ext. PW-10/C and sent the rukka Ex.PW-10/H from the spot along-with case property for registration of the FIR. The FIR came to be registered and the respondent was arrested. 6. The I.O. prepared the report under Section 57 of the NDPS Act. The case property was handed over to Inspector Virender Chauhan, SHO, Police Station, State CID Bharari, Shimla for re-sealing, who re-sealed the case property with seal ‘N’ filled in the column Nos. The FIR came to be registered and the respondent was arrested. 6. The I.O. prepared the report under Section 57 of the NDPS Act. The case property was handed over to Inspector Virender Chauhan, SHO, Police Station, State CID Bharari, Shimla for re-sealing, who re-sealed the case property with seal ‘N’ filled in the column Nos. 9 to 11 of the NCB form in triplicate, prepared the re-seal certificate and deposited the case property with the MHC, who in turn, sent the same to FSL Junga. As per report of FSL, Ext. P-Z, codeine phosphate was present in the exhibit stated as ‘Rexcof’ in poly gunny bag parcels marked as 1, 2 and 3. 7. After completion of the investigation, final report was presented in the Court, upon which, cognizance was taken and the respondent was charge sheeted for the offence punishable under Sections 21 and 22 of the Act to which, she pleaded not guilty and claimed to be tried. 8. In order to substantiate its case, the prosecution examined as many as 10 witnesses. 9. On closure of prosecution evidence, the respondent was examined under Section 313 Cr.P.C., in which, she denied the case of the prosecution and pleaded her innocence. However, she did not choose to lead any evidence in her defence. 10. Learned Special Judge, as observed above, acquitted the respondent on various grounds, however, mainly on the ground that there is non-compliance of the mandatory provisions as contained in Section 42 NDPS of the Act. 11. We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the judgment of the learned trial Court as well as the evidence on record. 12. It would be noticed that it is the case of prosecution that the premises of the respondent were searched on the basis of prior information and there is nothing on record to suggest that the provisions of Section 42 of the Act have been complied with. 13. Section 42 of the NDPS Act which reads as under: “42. 12. It would be noticed that it is the case of prosecution that the premises of the respondent were searched on the basis of prior information and there is nothing on record to suggest that the provisions of Section 42 of the Act have been complied with. 13. Section 42 of the NDPS Act which reads 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 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 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 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 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.] 14. A close perusal of Section 42 of the NDPS Act would reveal that if any such officer 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, is kept or concealed in any building, conveyance or enclosed place, he may enter into and search any such building, conveyance or place between sunrise and sunset and shall within seventy-two hours send a copy of the information/ grounds of his belief to his immediate superior officer. Further if such officer has reason to believe that search warrant or authorization 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 and he shall within seventy-two hours send a copy thereof to his immediate superior official. 15. The Hon'ble Supreme Court in a catena of decisions has held that violation of Section 42 of the NDPS Act vitiates the entire trial. 16. In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 , a Constitution Bench of the Hon'ble Supreme Court considered Sections 42 and 50 of the NDPS Act. Paragraphs 1, 2 and 35 of the above judgment read as under: "1. In Abdul Rahsid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 , a three-Judge Bench of this Court held that compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692 , which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692 , which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. 2 In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. 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. 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 with requirements of subsections (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." 17. In Boota Singh & others vs. State of Haryana, (2021) 19 SCC 606 , the Hon’ble Supreme Court has held as under: “15. It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act. 16. The decision of this Court in Karnail Singh (Karnail Singh v. State of Haryana, (2009) 8 SCC 539 ) as followed in Jagraj Singh (State of Rajasthan v. Jagraj Singh, (2016) 11 SCC 687 ), is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigors of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.” 18. Total non-compliance of Section 42 is impermissible. The rigors of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.” 18. In Najmunisha vs. State of Gujarat, AIR 2024 Supreme Court 2778, the Hon’ble Supreme Court held that the officer receiving the information regarding the narcotic is bound to record the same and send it to the superior officer and failure to do so will vitiate the trial. The relevant paras of the aforesaid judgment read as under: 31. From the perusal of provision of Section 42(1) of the NDPS Act 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. This relaxation contemplated by virtue of Section 42(2) of the NDPS Act 1985 was brought about through the Amendment Act of 2001 to the NDPS Act of 1985 wherein prior to this position, the Section 42(2) mandated the copy of the said writing to be sent to the immediate official superior “forthwith”. 32. The decision in Karnail Singh (supra) has been extensively referred by the learned Counsel for the Appellants and at the cost of repetition, it is observed that absolute non-compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay. This position adopted by the instant 5- Judges’ Bench of this Court is derived from the ratio in the decision in Balbir Singh (supra) which is a decision by a 3-Judges’ Bench of this Court. 33. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay. This position adopted by the instant 5- Judges’ Bench of this Court is derived from the ratio in the decision in Balbir Singh (supra) which is a decision by a 3-Judges’ Bench of this Court. 33. Another 3-Judges’ Bench while dealing with compliance of Section 42 of the NDPS Act 1985 in Chhunna alias Mehtab v. State of Madhya Pradesh (2002) 9 SCC 363 dealt with criminal trial wherein there was an explicit non-compliance of the statutory requirements under the NDPS Act 1985. It was held that the trial of the Petitioner-Appellant therein stood vitiated. For a better reference, the judgment is quoted below as: “1. The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate. 2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorisation was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been a noncompliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated.” 19. Thus, in the aforesaid decisions of the Hon’ble Supreme Court, it has clearly been held that where the empowered officer does not record the information at all and also does not inform the official superior, then, it is a clear violation of Section 42 of the NDPS Act. The punishments provided under NDPS Act are deterrent in nature. The Legislature in its wisdom imposed several safeguards so as to see that the penal provisions of the Act may not be abused. In the instant case, the Investigating Officer did not record the information and also did not inform the official superior(s) at all, as such, it is a clear violation of Section 42 of the NDPS Act. 20. The Legislature in its wisdom imposed several safeguards so as to see that the penal provisions of the Act may not be abused. In the instant case, the Investigating Officer did not record the information and also did not inform the official superior(s) at all, as such, it is a clear violation of Section 42 of the NDPS Act. 20. In addition to the above, we see no reason to interfere with the findings recorded by the learned Special Judge, given the fact that the independent witnesses i.e. PW-1 Ashwani Kumar and PW-6 Ramesh Zinta as alleged to have been associated have not at all supported the case of the prosecution and were declared hostile. 21. PW-1 Ashwani Kumar while being cross-examined at length by the learned Public Prosecutor admitted the case of the prosecution only to the extent that from room five, small carry bags and one big carry bag were found in his presence and the police found ‘Rexcof’ syrup in the said carry bags, which on counting were found to be 567. He also admitted that police put three carry bags in one sack and the remaining three carry bags were put in another sack and the bigger carry bag was put in the third sack, which were sealed with seal ‘E’. However, while being cross-examined by the learned defence counsel, PW-1 clearly stated that neither any bottles nor any money was recovered in his presence. This led to the Court question being put to this witness that “which of your statement is true which has been made in the cross-examination by the learned Public Prosecutor or the statement given by you in the cross-examination by the learned defence counsel”, to which he answered that both his statements were correct. PW-1 further stated that whichever documents he had signed, the same were signed at the instance of police and those documents were blank at that time. He further explained that Police had taken his signatures on the blank papers as they were too late. 22. PW-6 Ramesh Zinta, another independent witness associated by the I.O. during the search of the house of the respondent has also not supported the case of the prosecution and was declared hostile. PW-6 even after being permitted to be cross-examined by the learned Public Prosecutor, did not support the case of the prosecution. 22. PW-6 Ramesh Zinta, another independent witness associated by the I.O. during the search of the house of the respondent has also not supported the case of the prosecution and was declared hostile. PW-6 even after being permitted to be cross-examined by the learned Public Prosecutor, did not support the case of the prosecution. No doubt, just because a witness had turned hostile, his entire evidence cannot be termed as unworthy of credence. The evidence of such witness cannot be treated as washed off the record altogether. It is for the trial Judge to consider such a case whether as a result of cross-examination and contradiction, the witnesses stand thoroughly discredited or can still be believed in regard to part of his testimony. The evidence of hostile witness, thus, is admissible under the law and there is no legal bar to base conviction or acquittal upon the testimony of such witness. 23. Adverting to the facts of the instant case, as observed above, PW-1 Ashwani Kumar and PW-6 Ramesh Zinta have not supported the case of the prosecution despite lengthy cross-examination conducted by the learned Public Prosecutor. Both these witnesses have categorically stated that no contraband was recovered in their presence. 24. No doubt, the official witnesses i.e. PW-10 Rahul Sharma, I.O. PW-4 HC Neelam and PW-5 Constable Suresh Kumar have tried to support the case of the prosecution, but, then, there is material contradictions in their testimonies, which have been duly noticed by the learned Special Judge and pointed out in para 26 of the judgment, which reads as under:- “26. After perusal of the material on record, the court noticed that the contradictions are emanating from the testimonies of the official witnesses and apparent contradictions having emerged on the record from the testimonies of PW-10 Rahul Sharma, PW-4 H.C.Neelam Prakash and PW-5 C.Suresh Kumar cannot be termed as minor which has in fact go to the root of the case and has created a doubt regarding the recovery of 567 bottles of REXCOF Syrup from the residential house of the accused. The contradictions appearing in the statements of official witnesses are narrated below:- (1) According to PW10 Rahul Sharma, he dictated the documents Ext.PW-1/A, Ext. PW-10/H, Ext.PW-10/B, Ext.PW. 10/A, Ext. PW-10/K, Ext. PW-10/J, spot map Ext.PW-10/C to H.C. Govind and H.C. Neelam Prakash, but he has not recorded the statement of these witnesses on the spot. The contradictions appearing in the statements of official witnesses are narrated below:- (1) According to PW10 Rahul Sharma, he dictated the documents Ext.PW-1/A, Ext. PW-10/H, Ext.PW-10/B, Ext.PW. 10/A, Ext. PW-10/K, Ext. PW-10/J, spot map Ext.PW-10/C to H.C. Govind and H.C. Neelam Prakash, but he has not recorded the statement of these witnesses on the spot. He further admitted that there is no document in which the reference has been given about the fact that the contents of these documents were dictated to H.C.Govind and H.C. Neelam Prakash. It is pertinent to mention here that statement of H.C Govind Ram is not on the record and H.C.Neelam Prakash PW-4 in his statement no where stated that Rahul Sharma (PW10) dictated the aforesaid documents to him and he prepared the aforesaid documents. Rather, he deposed that he did not remember about the details of those proceedings which were conducted on the spot. So, there is no evidence on the record to prove who prepared the aforesaid documents on the spot. (2) According to PW-10, Rahul Sharma, he left Police Staton CID on 30.10.2014 in the noon. Firstly they had gone towards Shilal and stayed there for night on the next day, they stayed at Chopal in the house of Constable Nazir, but he has not associated C.Nazar Singh nor recorded his statement. Whereas, PW-4 H.C. Neelam Parkash stated that on 30.01.2014 the police party had directly gone to Shilai. They started back from Shilai to Nerwa in the morning of 31.01.2014. On that day they had also gone to Chopal. The person in whose house they stayed on 31.01.2014 falls between Chopal and Nerwa. On 1st February, 2014 they had made the preparation for conducting the raid upto 5 P.M. His statement was recorded by the Investigating Officer Dy. S.P.Rahul Sharma on the spot. Whereas, PW-10 Rahul Sharma has categorically stated that he had not recorded the statement of H.C.Neelam Prakash. As per the statement of PW5 C. Suresh Kumar, the police party had stayed at Shilai Rest House on 30.01.2014. On 31.01.2014, they came back to Chopal via Nerwa when they stayed in the village. (3) Ext. S.P.Rahul Sharma on the spot. Whereas, PW-10 Rahul Sharma has categorically stated that he had not recorded the statement of H.C.Neelam Prakash. As per the statement of PW5 C. Suresh Kumar, the police party had stayed at Shilai Rest House on 30.01.2014. On 31.01.2014, they came back to Chopal via Nerwa when they stayed in the village. (3) Ext. P-2, Ext.P-3 and Ext.P4 are three sacks in which 567 bottles of REXCOF Syrup were recovered from the possession of accused, which were again put into these sacks Rahul Sharma stated that he could not say who had written the words 'Sunita' on the sacks Ext. P2 to Ext. P4. He further stated that he has not prepared the cloth which has been affixed on the sacks Ext. P2 to Ext.P4. PW-5 C. Suresh Kumar who was one of the member of police party and present on the spot also admitted that he has not signed Ext.P1 to Ext. P4. He even admitted the seizure memo by which these articles were taken into possession did not bear signatures. The pieces of cloths which is pasted on Ext.P2 to Ext. P4 was written by Investigating Officer which fact has been denied by the Investigating Officer in his statement. Even PW-5 C.Suresh Kumar is not aware who has written word 'Sunita' on Ext.P-1 to Ext.P-4.” 25. In the peculiar facts and circumstances of the case, when the independent witnesses have not supported the case of the prosecution, contradictions appearing in the testimonies of the official witnesses, as aforesaid, which cannot be ignored, this assumes importance when the prosecution has failed to comply with the mandatory procedure of search and seizure, as provided for in Section 42 of the NDPS Act. 26. This Court is not inclined to interfere with the findings arrived at by the learned trial Court, given the fact that the State was not in a position to show any evidence worth the name to take contrary view in the matter than the one taken by the learned trial Court. 27. The State has miserably failed to establish that the approach of the trial Court is vitiated by some manifest or illegal error and the decision of the learned trial Court is against the material and evidence available on record. 28. 27. The State has miserably failed to establish that the approach of the trial Court is vitiated by some manifest or illegal error and the decision of the learned trial Court is against the material and evidence available on record. 28. In this view of the matter, we are in agreement with the reasons recorded by the learned trial Court in acquitting the respondent and in our considered opinion, the impugned judgment is just, legal and proper, therefore, the same warrants no interference by this Court. 29. Consequently, there is no merit in the instant appeal and the same is accordingly dismissed. 30. Record be sent down.