Non-compliance with the mandatory provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which require the recording of information and sending a copy to the immediate official superior, vitiates the trial and affects the prosecution case.

T.H.B.Chalapathi, J.

1. This appeal is directed against the conviction and sentence recorded by learned Addl. Sessions Judge, Amritsar in Sessions Case No. 9 of 1990 dated 14.12.1994.

2. The accused-appellant was prosecuted for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having been in possession of 45 kilograms of opium without any permit. According to the case of the prosecution, on 10.5.1989 when Sub Inspector of Police Shamsher Singh along with police party held picketing on the culvert of a drain of Bikhiwind public road, he received a secret information at about 4.15 p.m. that the accused was in possession of opium. Thereafter, the accused came from the side of Sandhpur. Then he apprehended the accused and arrested him. He asked the accused whether he wanted to be searched by a gazetted police officer or in the presence of a Magistrate but the accused agreed to be searched by the Sub Inspector. The accused was carrying a gunny bag containing 45 kg. of opium wrapped in a glazed paper. Then the Sub Inspector took 10 grams of opium as sample and the remaining opium was sealed. Thereafter, a ruqa was sent to the police station on which the formal FIR was registered. The sample of the opium was sent to the Public Analyst. Thereafter a charge-sheet was filed against the accused. The learned Additional Sessions Judge, Amritsar framed a charge against the accused for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the accused pleaded not guilty to the said charge. In order to prove the guilt of the accused, the prosecution examined four witnesses and marked the documents. On a consideration of the evidence on record, the learned Additional Sessions Judge convicted the accused for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. Aggrieved by the same, the accused preferred the above appeal.

3. The learned counsel for the appellant contended that there is a clear violation of the Narcotic Drugs and Psychotropic Substances Act, particularly of Section 42 of the Act and, therefore, the conviction and sentence are liable to be set aside. It is on the other hand contended by the learned Assistant Advocate General, Punjab that the non-compliance of the provisions of Section 42 of the Act are not fatal to the case and, therefore, the conviction and sentence imposed by the learned Additional Sessions Judge, Amritsar on the accused-appellant are to be upheld.

4. It is the case of the prosecution that when the S.I. of the police was picketing on the culvert of a drain of Bhikhiwind public road, he received the secret information at about 4.15 p.m. against the accused and thereafter the accused came from the side of Sandhpur. He tried to give a slip to the police but was apprehended and when he was asked whether he wanted to be searched by a gazetted officer or in the presence of a Magistrate, the accused agreed to be searched for by the S.I. Thereafter, he was searched by the S.I. and a quantity of 45 kg. of opium was recovered from the possession of the accused. Public Analyst also found that the sample was opium. Therefore, according to the prosecution, the accused committed the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

5. The learned counsel for the accused argued that the evidence on record clearly shows that non-compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the provisions contained in section 42 of the Act are mandatory and non-compliance of the same had vitiated the trial and, therefore, the accused is entitled to be acquitted. Under Section 42 (1) of the Act, any officer has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotro