Failure to comply with the mandatory provisions of Section 42(1) and (2) of the Narcotic Drugs and Psychotropic Substances Act, which require an authorized officer to record information received from a source in writing and send a copy to their immediate officer superior, vitiates the prosecution case and affects the accused's conviction.

1. - These two appeals arise out of the judgment dated 23.9.93, passed by the Sessions Judge, Jhalawar, by which the learned Sessions Judge convicted accused-appellant for the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo ten years' rigorous imprisonment and a fine of rs. 1,00,000/- and in default of payment of fine further to undergo three years' rigorous imprisonment.

2. The case of the prosecution is that Mr. Ram Kumar, Deputy Superintendent of Police, working as Circle Officer, on 7.3.91, received a secret information from some mukhbir that accused Mohammed Ahfaj alias I.C. S/o Mr. Nijamuddin R/o Jhalawar, is engaged in the smuggling of smack and is doing illegal business of this drug in his house. On receiving this information, he, alongwith PW 3 Vijay Singh Driver and the Police Constable PW 2 Banshi Lal, PW 4 Rameshwar, PW 5 Chaturbhuj PW 6 Kailash and PW 7 Tanwar Singh reached the house of the accused-appellant and found him sitting in the pole of the main gate of his house. At that time the accused was sitting on a chubutari. On his personal search, smack weighing 17 grams and 200 mg. was found in his possession which was seized. Two samples from this smack were taken and the samples and the remaining smack was sealed. The samples were sent for F.S.L. examination to the State Forensic Science Laboratory, Jaipur, which, on F.S.L. examination, was found positive for smack. The prosecution, in support of its case, examined eleven witnesses, and placed reliance over certain documents. The learned trial court, after trial, convicted and sentenced the accused-appellant, as stated above.

3. The only contention, raised by the learned counsel for the appellant is that the compliance of Section 42 of the N.D.P.S. Act has not been made in the present case, which vitiates the trial and the conviction and sentenced passed, against the accused-appellant by the trial Court. In support of its contention, learned counsel for the appellant have placed reliance over : the State of Punjab v. Balbir Singh (1994) 3 SC 299 . The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the compliance of the provisions of Section 42 of the N.D.P.S. Act has been properly made in the present case and there is no violation of any of the provisions of Section 42 of the Act and as such the judgment passed by the trial Court does not require any interference.

4. I have considered the submissions made by the learned counsel for the parties.

5. PW 1 Mr. Ram Kumar, the Deputy Superintendent of Police, who was working as the Circle Officer, Jhalawar, has stated that on 7.3.91, at about 12.00 in the noon, he received a secret information from some mukhbir that the accused-appellant is selling smack in his house situated in Cement Road, Namakwalon Ki Haweli, Jhalawar, and is having some smack with him. On receiving this information, he immediately proceeded towards the house of the accused-appellant alongwith the other members of the police party, made a search of the accused and recovered some smack. Section 42 of the Act casts a duty on the authorised officer, if he has reasons to believe from his personal knowledge or on the basis of the information given by some person and taken down in writing that any narcotic drug or psychotropic substance in respect of which the offence punishable under Chapter IV of the Act, has been committed, to take down that information in writing. Sub- section (2) of Section 42 of the Act provides that where an authorised officer takes down any information in writing under Sub-section (1) of Section 42 of the Act then he shall record the ground of his belief in writing and shall send a copy thereof to his immediate officer superior. PW 1 Mr. Ram Kumar, in the present case, after receiving the secret information neither took down the information in writing, as is required under Sub-Section (1) of