P. K. MISRA, J.

( 1 ) THE appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the N. D. P. S. Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default to undergo further rigorous imprisonment for five years.

( 2 ) AS per the prosecution case on 9-8-1991 while P. W. 5 the Sub-Inspector of Excise was patrolling along with other officials in village Iswarpur, he received information that accused Jadumani Sahu was in possession of huge quantity of opium. Immediately, thereafter, the excise staff searched the house of the accused and from the second bed room under the cot opium was seized. After weighing, samples were drawn and on completion of investigation prosecution report was submitted.

( 3 ) THE plea of the accused was one of denial and it was stated that the house from which the contraband articles were seized belonged to Kulamani Sahu, an agnatic relation of the accused and not to the accused.

( 4 ) DURING the trial, six witnesses were examined on behalf of the prosecution, of whom P. Ws. 3 and 5 are respectively the Asstt. Sub-Inspector of Excise and Sub-Inspector of Excise who participated in the search and seizure whereas P. W. 6 is an Inspector of Excise, who is a formal witness P. W. 4 is the Revenue Inspector who assessed and demarcated the land. P. Ws. 1 and 2 are the two independent witnesses who had witnessed the search and seizure. However, both of them did not support the prosecution case and were permitted to be cross-examined by the prosecution. Relying upon the evidence of P. Ws. 4. 5 and the seizure witnesses and the spot map prepared by P. W. 4, the trial Court held that the case from which the opium was seized under the possession of the accused and. accordingly order of conviction was passed.

( 5 ) IN this appeal, it was first contended by the learned counsel for the appellant that there has been violation of Section 42 (1) of the N. D. P. S. Act and in support of such contention the learned counsel for the appellant has relied upon a decision of the Supreme Court reported in State of Punjab v. Balbir Singh and others, as followed by several decisions of Orissa High Court in Surendranath Mohanty and another v. State of Orissa, and Suresh Kumar Sahu v. State of Orissa. It is contended that as per the prosecution case, the Excise Inspector proceeded to search the house after receiving information that opium had been kept by the accused. As per Section 42 (1) such information ought to have been taken down in writing and a copy should have been sent to the immediate superior forthwith as envisaged under Section 42 (2) of the N. D. P. S. Act. Both P. Ws. 3 and 5 have stated that search was effected after information was received to the effect that the accused was dealing with narcotic drugs in the house and as such it was obligatory for the excise officials to take down such information in writing before proceeding to search the house and before effecting the seizure. As observed by the Supreme Court in the decision reported in (1994) 7 OCR (SC) 283 (supra) and as per a catena of decisions following the said Supreme Court decision, the provisions of Section 42 are mandatory. There is absolutely no material on record that the information received had been taken down in writing. In such view of the matter, in view of breach of the mandatory provisions of Sections 42 (1) and 42 (2) of the N. D. P. S. Act. I have no other alternative than to hold that the trial was vitiated and the applicant is entitled to be acquitted on this ground alone.

( 6 ) THE appellant in his statement under Section 313, Cr. P. C. had categorically taken the plea that the house from which the contraband articles were seized did not belong to him. P. W. 1, a covillager and seizure witness has stated that excise staff and officials had gone inside the house of Kulamani Sahu who is an agnatic relation of th