IMPORTANT POINT
Non-compliance of mandatory provisions of Section 42 NDPS Act vitiate proceedings and accused is not required to show that he suffered any prejudice because of non-recording of information and non-sending same to immediate official superior and non-filing of same in Court.

JUDGMENT

R.S. Garg. J.- The appellant being aggrieved by the judgment dated 24-8-2000 passed in Special Case No. 103 of 1998 by the learned Special Judge (NDPS Act), Sarguja (M.P.), convicting the appellant for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo RI. for two years and pay fine of Rs. 1,000/-, in default of payment of fine, to undergo six months further RI. has filed this appeal.

2. The prosecution case in brief is that Jagdish Singh Bhadoriya (PW 6) posted at Police Station Mahendragarh on receiving the information on 15-5-1998 that somebody was coming with contraband 'Ganja', went to the spot with Head Constable 941 Ganpat Pandey and Constable No. 899 Suresh Kumar to Fabbara Chowk. At about 5.45 on coming accused was seen and after the informer raised his fingers towards the accused the accused was apprehended, a notice under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 was given to him and after seeking the consent of the accused to be searched by PW 6 Jagdish Singh Bhadoriya, a search was conducted in which about 400 grams of Ganja was recovered from the possession of the accused. The said Ganja was weighed on the spot two samples were drawn from the contraband and were properly sealed. The accused was brought to the police station where the First Information Report was recorded the contraband and samples were given to Police Station Maharrir for being kept in safe custody. The samples were sent for their chemical analysis. On completion of investigation. a challan in accordance with law, was submitted by the police agency against the accused in the competent Court.

3. After recording the evidence and hearing the parties, the learned Trial Court convicted the accused and sentenced him accordingly.

4. Mr. Raj Kamal Singh, learned Counsel for the appellant submits that the prosecution evidence is shaky, the Court below was not justified in relying upon the statements of said Bhadoriya (PW 6) and in absence of the evidence that the narcotics and samples were sealed and that the concerned police officer had recorded the information and sent the same immediately to the officer immediate superior to him and as there are violations of the mandatory provisions of the NDPS Act, the appellant deserves to be acquitted. On the other hand, learned Counsel for the State submits that the Court below was not unjustified in relying upon the statement of PW 6 Bhadoriya who has been supported by the other witnesses.

5. Section 42 of the NDPS Act reads as under:

"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 intelligence or another department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the

Central Government, or any such officer (being an officer superior 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 in respect of which an offence punishable, under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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 co