Failure to comply with the mandatory provisions of Sections 42 and 50 of the NDPS Act vitiates the trial and warrants the acquittal of the accused.

1. - All the above named appellants have been convicted under section 8 r/w 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred in short 'NDPS' Act) and sentenced to 10 years rigorous imprisonment and a fine of Rs. one lac or in default to further undergo 2 years rigorous imprisonment.

2. The prosecution case is that Shri Rai Singh, S.H.O., Hamirbas conducted a checking of Roadways Bus on the basis of source information on 18.5.1996 on the Road Neema to Chandgothi at 11.15 p.m. Four persons were sitting on the rear seat with a bag, who were asked to come down from the bus and a search was made after complying the provisions under section 50 NDPS Act and poppy powder weighing around 50 Kg. was recovered from these appellants, who also disclosed their names. After completing the necessary documents, chemical examination of the samples and usual investigation the charge-sheet was submitted against the appellants in the Court of Special Judge, NDPS Cases, Rajgarh. The appellants denied the charge under section 8/15 NDPS Act and stated in the statement under section 313, Cr.P.C. that they have been falsely implicated. All of them had come to purchase she-goats and sheep and they were caught by the police at the bus stand.

3. The learned Special Judge came to the conclusion that the charges have been proved by the prosecution against the appellants and therefore convicted and sentenced them as indicated above.

4. I have heard the learned counsel for the appellants and the learned Public Prosecutor and perused the record also.

5. The first point which arises for consideration is whether the compliance of the mandatory provisions under section 42, NDPS Act have been made by the prosecution. It is established from the statement of S.H.O. Rai Singh Beniwal (PW 8) that the alleged recovery was effected on the basis of a secret information received by him at 10.30 p.m. on 18.5.1996. This information has not been taken down in writing and a copy of the same has not been forwarded to the official superior as envisaged under section 42 of the NDPS Act. Shri Rai Singh has admitted in the cross-examination that he did not prepare any memo about the secret information under section 42 of the NDPS Act. There is no other oral or documentary evidence to show that the secret information was reduced into writing or the copy of the same was sent to the official superior.

6. The learned Public Prosecutor has contended that the copy of the information has been sent which is Ex. P/17.

7. I have perused Ex. P/17, which is a report of arrest and seizure required to be sent in compliance of Section 57, NDPS Act. Ex. P/17 is not the source information alleged to have been received by S.H.O. Shri Rai Singh Beniwal. I am therefore, firmly of the view that the mandatory provisions of Section 42, NDPS Act have not been follow.ed in this case.

8. The next submission is that the compliance of mandatory provisions of Section 50, NDPS Act is also not proved on the basis of the memos Ex. P/2 to Ex. P/5 purported to have been made in compliance of Section 50, NDPS Act. It is contended that Ex. P/1 notice to Ram Singh and Leeladhar to remain present as motbirs has also been prepared at some later time and also the memos Ex. P/2 to Ex. P/5. It is not proved that any option was given to the appellants to conduct their search in the presence of a Gazetted Officer or a Magistrate if so required by them. I find that motbir witnesses Leeladhar (PW 1) and Ram Singh (PW 4) as well as bus driver Tejpal Singh (PW 6) have not supported the prosecution case. The seizure memo Ex. P/6 shows that recovery was effected on 18.5.1996 at 11.30 p.m. and it was completed after mid-night about 12.00 O'Clock and therefore dated 19.5.1996 has been shown on the last page of the memo. This fact has also been stated by Daud Ali (PW 3), Ram Prasad (PW 2), Nemi Chand (PW 5) and Rai Singh, S.H.O. (PW 8). It has been stated that the memos Ex. P/2 to Ex. P/5 were pre