M.R. Hariharan Nair, J.

A new question has been raised before me in this case and that is whether for the purpose of proper compliance with Section 42(2) of the N.D.P.S. Act the report that should reach the immediate official superior should actually be a copy of the record and not the original.

2. The appellant stands convicted for the offence under Section 20(b)(i) of the N.D.P.S. Act. It was alleged that at about 4.30 p.m. on 16.3.2000, PW1- Circle Inspector of Police, received the information that a person riding a motorcycle was coming with ganja carried in a bag; that accordingly Pw1 along with his police party intercepted the vehicle while it was still in motion and in the subsequent search it was revealed that the bag possessed by the accused was containing 1.05 Kgs. Of ganja. After preparing the necessary sample and after recording the details in a contemporaneous seizure mahazar, the arrested accused and the seized contraband were removed to the police station and steps proceeded with.

3. The trial court found based on the evidence of Pws. 1 to 7 and Exts. P1 to P21 and on a consideration of Mos. 1 to 4 that the aforesaid evidence was acceptable. The accused was accordingly convicted for the offence and sentenced to undergo R.I. for 18 months and to pay a fine of Rs. 10,000/- (in default to S.I. for six months).

4. When this case came up before another learned Judge of this Court, the contention that there was no adequate proof of the receipt of the report sent under Section 42(2) of the N.D.P.S. Act by the official superior of PW1 was highlighted. The learned Judge invoked the power under Section 391(1) of the Cr. P.C. and directed that the official superior viz. the Dy.S.P., Perinthalmanna be examined as additional witness on the above aspect and that the evidence so recorded duly certified should be sent back to this court. The said Dy.S.P. was since examined as PW8 on 3.1.2002 and his evidence has been duly certified.

5. The learned counsel for the appellant submitted that even the examination of PW8 the situation has not improved substantially in so far as the report that PW8 received from PW1 was not a copy of the information, but the original report itself and that such a report is insufficient to meet the requirements of Section 42(2) of the N.D.P.S. Act in so far as it would always be possible for an investigating officer to fabricate such a report. In this regard it was highlighted that there was inordinate delay in Ext. P1 report reaching the Court. While it is dated 16.3.2000, it has reached the Court only on 1.1.2001.

6. On the arguments advanced in the case the points that arise for decision are :

1) Whether for meeting the requirements of Section 42(2) of the Act the report that is sent by the Investigating Officer should invariably be a copy and not the original ?

2) Whether there is sufficient compliance with the requirements of Section 42(2) of the N.D.P.S. Act in the present case ?

3) Whether the conviction entered against the appellant is justified ? and

4) Whether the sentence imposed in the case requires any modification ?

7. Point No. 1 : Section 42(1) of the N.D.P.S. Act provides that where an empowered 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, 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, he may between sunrise and sunset enter into and search any such building, conveyance on place and seize such drug or substance and also detain and search any person whom he has reason to believe to have committed the offence punishable under Chapter IV. Under the proviso if the officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity