A. PASAYAT, J.

( 1 ) IN this appeal judgment of conviction and sentence passed by the learned Second Additional Sessions Judge, Ganjam, Berhampur in Sessions Case No. 26 of 1993 is under challenge.

( 2 ) P. Simanchal Patra (hereinafter referred to as the accused) faced trial on the accusations of having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) for being in possession of 1 Kg 400 grams of Opium poppy capsules without any authority, in contravention of section 8 of the Act. The accused pleaded innocence.

( 3 ) PLACING reliance on the evidence of four witnesses examined to further the prosecution case, and the documents brought on record, the accused was found guilty, convicted and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. 00 with a default stipulation of two years rigorous imprisonment.

( 4 ) IN support of the appeal, Mr. H. S. Misra, learned counsel urged that there was non-compliance of the mandatory requirements of sections 42 and 50 of the Act. So far as section 42 is concerned, it is stated that the requisite recording of reasons was not done. So far as section 50 is concerned, it is urged that the accused was not given the chance of being searched in presence of the prescribed officer.

( 5 ) LEARNED counsel for the State on the other hand submitted that section 42 has been complied with, and in any event there is no prejudice caused to the accused. So far as alleged noncompliance, of section 50 is concerned, with reference to the statement of P. W. 4 it is stated that offer Was made to the accused to be searched in presence of any of the prescribed officers, but the accused declined to accept the offer and volunteered to be searched in Presence of PW. 4.

( 6 ) SECTION 42 of the Act deals with power of entry; search, seizure and arrest without warrant or authorization. As observed by the apex Court in State of Punjab v. Balbir Singh and others, under Section 42 (1) the empowered officer, if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reasons to believed from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc, he may carry out the arrest of search without warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. 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 noncompliance of this provision the same affects the prosecution case. To that extent, the provision is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. On prior intimation, the empowered officer or authorised officer while acting under section 41 (2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to noncompliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. The question whether such person opted for such a c