Non-compliance with statutory provisions, failure to establish exclusive possession, and inadmissibility of statements recorded after the accused is named as an accused.

1. - This appeal is directed against the judgment dated 26.9.1998 passed by the Additional Sessions Judge, Behror convicting the accused-appellant under section 8/20(i)(ii) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentencing him to 10 years rigorous imprisonment with a fine of rupees one lac, in default thereof, to further undergo one years' imprisonment.

2. Briefly stated the facts of the case are that PW 4 Laxman Kataria, Sub-Inspector, Central Narcotics Bureau, Jaipur received a secret information on 19.3.1998, which he recorded in Ex.P /13. Acting upon this specific information, the joint preventive party of Control Room, Kota and Jaipur Cell under the leadership of PW 13 Vijay Singh Meena, Superintendent, Narcotic Department, Kota proceeded to Neemrana and reached there at 10.30 a.m. on 20.3.1998. PW 4 Laxman Kataria called two witnesses, namely PW 1 Ram Swaroop and PW 2 Hajari Lal to witness the proceedings. Thereafter, he called accused-Satya Narain, who opened the door of the house. Laxman Kataria informed him that on the basis of secret information he intends to take search of his house. He informed of his right to be searched in presence of a Magistrate or a Gazetted Officer vide Ex.P / 7, but he consented for search by Shri Kataria himself. Thereafter, they entered the house and found Charas and Ganja in a plastic bag and a fertilizer bag, weighing 1.300 grams and 15.300 grams, respectively. Shri Kataria took two samples of Charas each weighing 25-25 grams and two samples of Ganja each weighing 500-500 grams and sealed them. Remaining Charas and Ganja were also sealed by him. He prepared seizure memo, Ex.P/6, Site Plan Ex.P/5 and memo of specimen seal, Ex.P/4. After completion of above legal formalities, he recorded the statement Ex.P/4 of Satya Narayan. There-after, he arrested Satya Narayan vide arrest memo Ex.P / 3. He then submitted First Information Report, Ex.P/ 9 to the Superintendent (Prevention), Central Narcotics Bureau Kota, Camp, Jaipur. After completion of investigation, a complaint under section 8 r /w Section 20(i)(ii) of the Narcotic Drugs and Psycotropic Substances Act (hereinafter to be referred as "the NDPS Act") was submitted in the Court of Additional Sessions Judge (Special Judge, NDPS Act Cases), Behror.

3. The learned trial Court, on the basis of the material on record and after hearing the arguments of the counsel for the parties, framed charge against the accused-appellant under section 8/20(i)(ii) NDPS Act. The charges was read over to the accused, to which he pleaded not guilty and claimed trial. During trial, the prosecution, in support of its case, examined as many as 7 witnesses and exhibited some documents. The accused in his defence examined himself as DW 1, Rohitash DW 2 and Radhey Shyam DW 3.

4. After completion of trial, the learned trial Court found the accused-appellant guilty of the offence charged with and convicted and sentenced him as aforesaid. Hence the present appeal.

5. The first argument in assailing the conviction, advanced by the learned counsel appearing on behalf of the accused-appellant is that there was complete non-compliance of the provisions of Section 42 of the NDPS Act. He submitted that PW 4 Laxman Kataria, who received the secret information has failed to discharge its obligation inasmuch as he failed to send a copy of the information to his immediate official superior as required under section 42(2) of the NDPS Act and therefore, conviction of the appellant on this ground is unsustainable.

6. I have considered the above argument. Under the provisions of Section 42 of the NDPS Act, it is imperative that that the information must be taken down in writing and copy thereof must be sent to immediate official superior and failure to comply with these conditions would render action of searching officer suspect.

7. Section 42 of the NDPS Act has been held to be mandatory by the Apex Court in series of cases. In State of Punjab v. Balbir Si