IMPORTANT POINT
While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42.

JUDGMENT

V.S. Sirpurkar, J.—

1. This is an appeal by the appellant-accused against his conviction for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”) and the consequent sentence of R.I. for 10 years and to pay fine of Rs. 1.5 lakhs, in default to undergo further R.I. for one year.

2. The prosecution story in very short conspectus is that on 4.7.1997 at about 2 p.m., Inspector Mahabir Singh along with other police officials was present at Gubhana bus-stop where he received a secret information that the appellant- accused was doing the business of selling charas and was keeping charas in the courtyard of his house. On this information, Inspector Mahabir Singh immediately informed his superior Kala Ramchandran, Additional Superintendent of Police on wireless and the police party went to the house of the accused after joining Surajbhan, Namberdar and Chanderbhan, Chowkidar as witnesses. In the meantime, ASP Kala Ramchandern also reached the spot and directed the Inspector Mahabir Singh to conduct the search of the premises. The house of the accused which was in a gher (compound) was found locked. Ultimately, it was the wife of the accused who brought the key of that “gher”. The “gher” had three rooms. The “gher” was opened and searched. In the fodder room (kotha of tura ) inside the “gher”, one plastic bag was found which was opened and checked and charas weighing 6.5 kilo gram was recovered. The usual investigation went on. The samples were collected and sent along with the seal; a rukka (information) was immediately sent on the basis of which the first information report was registered in the concerned police station. In support of its case, prosecution examined PW6 Inspector Mahabir Singh, PW5 ASP Kala Ramachandra apart from examining, PW1 Surajbhan, PW2 Satbir Singh, PW3 Constable Sunil Kumar and PW4 ASI Hari Singh. They were all part of the raiding party along with Inspector Mahabir Singh. On the basis of their evidence, the trial court convicted the accused against which there was an appeal before the High Court. The High Court dismissed the appeal. Hence, the present appeal.

3. Mr. Ratan Kumar Choudhary, learned counsel appearing for the appellant very painstakingly took us through the evidence of all the witnesses and urged that this was a case where there was a total non-compliance of the provision of Section 42 of the NDPS Act inasmuch as there was no recording of the information prior to taking any action. Under the said Section, the investigating officer had to record the information and send the same to the immediate superior officer. However, that was not done either before the raid or even thereafter. It was pointed that the said non-compliance was the breach of a mandatory provision of the Act and as such the said non-compliance was fatal to the prosecution case. The other point argued by the learned counsel is that there were discrepancies inasmuch as the PW 6 Inspector Mahabir Singh had stated in his statement that the recovered charas weighed 4 = kilo gram while PW1 Suraj Bhan, an independent witness had said on oath that the recovered charas weighed only 1.5 kilo gram while, actually it was 6.5 kilo gram which was alleged to have been recovered from the appellant.

4. We have seen the evidence ourselves. However, we are totally convinced that there was undoubtedly the contraband of chars found in the house which was described as “gher” (compound). Learned counsel was at pains to point out that there was no evidence collected regarding the ownership of the room from where the contraband charas was seized. We do not think that this can be urged at this stage as both the courts below have accepted that the house actually belonged to the accused and the concerned room was within the “gher” (compound) and was in his possession. This is apart from the fact that there is no serious cross-examination of any of the witnesses on the question of ownership of the