Violation of the mandatory provisions of S. 42 of the NDPS Act by not recording and forwarding the secret information received from the Intelligence to the superior officer vitiates the proceedings and the conviction cannot be sustained.

( 1 ) JUDGMENT :- This appeal is directed against the Judgment dated 21-6-1995 passed by the learned Special Judge N. D. P. S. Cases, Jodhpur whereby the accused-appellant Bhomaram was held guilty of the offence under S. 8 read with S. 18 of the N. D. P. S. Act and was sentenced to rigorous imprisonment for ten years together with a fine of Rs. 1 lac and in default of payment of fine, to further undergo rigorous imprisonment for two years.

( 2 ) THE prosecution case briefly stated is that on 2-10-1994, the Customs Officer Balotra Range, Balotra had barricated the road near Siono-ki-Dhani in pursuance of a secret information received from the Intelligence Department. At about 11. 15 AM, they boarded a bus and when that Bus stopped at Balotra Bus Stand, it is alleged that the accused-appellant tried to run away carrying a green coloured bag in his hand. However, he could not succeed in escaping because the Customs Personnel apprehended him. On his search, 500 gms. of opium and 200 gms. of opium milk (Juice) were recovered from the said bag.

( 3 ) IT is relevant to mention here that before taking search of the accused, the Customs Officers informed him that the search may either be made before a Gazetted Officer or a Magistrate. However, the accused expressed his desire to be searched before a Gazetted Officer. Therefore, the accused was taken before a Gazetted Officer and then the above search was made. After search, a seizure memo Ex. P. 1 was also prepared. The accused was also interrogated under S. 67 of the Act. The Custom Inspector also took two samples of 30 gms. each of opium as also of opium juice (milk ). Those samples were sealed. The seals that were placed on the samples and the remaining packet were of the specimen as found in Ex. P. 1. The above packets were later on deposited with P. W. 3 Brijbhushan Das Agrawal who was working at the relevant time as Superintendent of Customs, Barmer. P. W. 3 Brijbhushan made an entry of the above articles in Malkhana Register at S. No. 1/1994. An inventory Ex. P. 4 was also prepared which contains the signatures of Brijbhushan Das Agrawal. The entry in the Malkhana Register is Ex. P. 5.

( 4 ) THEREAFTER, P. W. 7 Yogendra who was working as Customs Inspector at the relevant time delivered the above samples to P. W. 5 Murlidhar for sending the same by registered post to the Chemical Examiner, Govt. Opium and Alkaloid Works, Neemuch. The above samples were received by the Chemical Examiner on 10-10-1994. The Chemical Examiner vide his report Ex. P. 17 dated 15-11-1994 found the above samples to be of opium within the meaning of S. 2 (xv) of the NDPS Act. On receipt of the above report from the Chemical Examiner, a complaint was filed against the accused-appellant in the Court of the learned Special Judge, N. D. P. S. Cases, Jodhpur.

( 5 ) THE learned Special Judge, N. D. P. S. Cases, Jodhpur framed charges under Ss. 17 and 18 of the NDPS Act against the accused-appellant. It is relevant to mention here that the above, charge, relates to only the recovery of 500 grams of opium being found in possession of the accused. In other words, the accused-appellant was not charged for the alleged recovery of 200 gms. of opium milk (Juice ). The accused pleaded not guilty to the charge and claimed to be tried. Thereupon, the prosecution examined as many as eight witnesses in support of its case. The statement of the accused-appellant was recorded under S. 313 Cr. P. C. The accused appellant raised the plea of alibi. He submitted that he was interrogated by the Customs Personnel on 2-10-1994 regarding a bag which was found in the Bus. He pleaded ignorance for the same. However, he was apprehended and this case has been falsely foisted on him. He has further submitted that previously also, he was prosecuted for the offence under the provisions of the NDPS Act but ultimately he was acquitted by the Court. In his defence, the accused-appellant Bhomaram produced D. W. 1 Shivlal and D. W.