Non-compliance of Section 42(2) of the NDPS Act, which mandates the authorised officer to send a copy of information regarding the commission of an offence to the immediate officer superior, vitiates the trial and conviction.

1. - This appeal is directed against the judgment dated 23.3.95, passed by the Special Judge, N.D.P.S. Cases, Hanumangarh, by which the learned Special Judge convicted the accused-appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act') and sentenced him to ten years' rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine further to undergo one year's rigorous imprisonment.

2. The appellant, alongwith Ram Niwas and Kamal Singh, was tried by the learned Special Judge, N.D.P.S. Cases, Hanumangarh, for the offence under Section 8/18 of the N.D.P.S. Act. As per the prosecution case, PW 11 Sher Singh, Sub-Inspector Police, Police Station, Sangaria, who was the Incharge of the Police Station, on 4.1.93, received some information from a Mukhbir at about 1.50 p.m. that Gurbachan Singh Jat-Sikh R/o Chautala, who is living in his Dhani situated in the out-skirts of Sangaria town, is engaged in the illicit-trade of opium and has just come in a bus from Hanumangarh and has brought opium with him and after leaving the bus at Ratanpura has proceeded towards his Dhani. Sher Singh, S.I., recorded this information in the Roznamcha and alongwith the other police personnel, proceeded towards the Dhani of the accused-appellant in a jeep. Ia the way, two Motbir witnesses, namely, Mukhtiar Singh and Sukhdeo Singh were, also, taken with them. Near the small-bridge on the water-course, the accused- appellant was found carrying a bag in his hand and on search, a plastic bag containing 4.800 kgs. of opium-milk was found in his possession. Two samples of 50 grams each of the opium-milk was taken and the same were seized and sealed. The Remaining opium milk was, also, seized and sealed. The samples were sent for F.S.L. examination to the State Forensic Science Laboratory, Jaipur, and on examination it was found opium. The prosecution, in support of its case, examined eleven witnesses. The accused did not examine any witness in their defence. The learned Special Judge, after trial, acquitted all the accused of the offence under Section 29 of the Act. He, also, acquitted accused Ram Niwas and Kamal Singh of the offence under Section 8/18 of the Act but, however, he convicted and sentenced the accused-appellant for the offence under Section 8/18 of the Act. It is against this judgment that the accused-appellant has preferred this appeal.

3. Though the judgment, passed by the learned trial Court, has been challenged by the learned counsel for the appellant on various grounds but it is not necessary to consider all those points on which the judgment has been challenged because the appeal can be disposed of only on one ground, i.e., the non- compliance of Section 42(2) of the Act, which is mandatory in nature and the non-compliance of which vitiates the whole trial as well as the conviction.

4. The main contention of the learned counsel for the appellant is that the compliance of the mandatory provisions of Section 42(2) of the Act has not been made, which vitiates the trial and the conviction. Sub-section (2) of Section 42 of the Act casts a duty upon the authorised officer, where he takes down an information in writing under Sub-section (1) of Section 42, regarding the commission of the offence under the Act by some person, to forthwith send a copy of such information to his immediate officer superior. It has been held by the Supreme Court in : State of Punjab v. Balbir Singh, AIR 1994 SC 1872 that Sub-section (2) of Section 42 of the Act is mandatory in nature and total non-compliance of this provision vitiates the trial. The observation made by the Apex Court in Balbir Singh's case, reads as under:-

"Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this p