ARORA, J. - (1.) THIS appeal is directed against the judgment dated 31. 5. 93, passed by the Sessions Judge, Jaisalmer, by which the learned Sessions Judge convicted accused-appellant Mool Chand for the offence under Section 18 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 21/2 months' rigorous imprisonment.
(2.) APPELLANT Mool Chand was tried by the learned Sessions Judge, Jaisalmer, for the offences under Sections 17 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act ). The case of the prosecution is that on 21. 2. 90, Deputy Superintendent of Police Mr. Murlidhar received a secret information through PW 6 Arjun Singh that accused Mool Chand is engaged in the sale of opium in his shop and he is not having any valid licence for the same. Mr. Murlidhar entered this information in the Roznamcha and thereafter, alongwith PW 8 Hanuman Ram, Constables PW 6 Arjun Singh, Pep Singh, Shaitan Singh and Head Constable Punjraj Singh went to the "shiv General Store" the shop of the appellant. The accused-appellant was present there. The Motbir witnesses were called and after giving his own search to the Motbir, Murli Dhar entered the shop of the accused. As soon as the accused saw him, he put a bag in the underground pond (Tanka), which was taken out from the underground pond which contained two small polythene bags containing 3. 650 kgs. of opium. Out of the samples weighing 30 grams each were taken. Both the samples as well as the remaining opium were separately sealed and recovery memos were prepared. The accused was arrested and thereafter the samples were sent for chemical examination, which, on chemical examination, were found containing morphine and was found to be opium. The prosecution, in support of its case, examined PW 1 Nakhat Singh, PW 2 Kesra Ram, PW 3 Hem Singh, PW 4 Narpat Dan, PW 5 Prem Raj, PW 6 Arjun Singh, PW 7 Purshottam Das, PW 8 Hanuman Ram and PW 9 Murlidhar. The accused did not examine any witness in his defence. The learned Sessions Judge, after trial, acquitted the accused-appellant of the offence under Section 17 of the Act but convicted and sentenced him for the offence under Section 18 of the Act, as stated above. It is contended by the learned counsel for the appellant that the compliance of Section 42 (2) of the Act has not been made in the present case as the information recorded by Murli Dhar Deputy Superintendent of Police in the Roznamcha was not sent to the higher authority as required under Sub-section (2) of Section 42 of the Act. In support of its contention, learned counsel for the appellant has placed reliance over the State of Punjab vs. Balbir Singh (1 ). It has, also, been contended by the learned counsel for the appellant that the compliance of the mandatory provisions of Sections 55 and 57 of the Act have not been made and the appellant, therefore, deserve to be acquitted. It has further been contended by the learned counsel for the appellant that the site plan of the place, from where the recovery of the opium was made, was not prepared at the time when the recovery is alleged to have been made and the seals on the samples were tampered with, which is clear from the fact that at the time of taking the sample 30 grams of opium was taken but when it was examined by the State Forensic Science Laboratory it was found containing only 24 grams of opium, as is clear from Ex. P. 7. The contention of the learned counsel for the appellant further is that the prosecution case further becomes suspicious on the ground that the samples were taken on 21. 2. 90, while the same were sent for chemical examination on 17. 3. 90, i. e. , after about twenty five days. Lastly, it is contended by the learned counsel for the appellant that the F. S. L. report has been given by the Assistant Director of the State Forensic Science Laboratory, whereas he is not the competent authority to give the same. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below. I have considered the submissions made by the learned counsel for the parties. Sub-Section (2) of Section 42 of the Act deals with the power to enter, search, seizure and arrest the accused without warrant of authorisation and provides that any such Officer, who is empowered in this behalf, if he has reasons to believe from personal knowledge or on the information given by a person or taken down in writing that no narcotic drug or psychotropic substance, in respect of which the offence punishable under Chapter XIV has been committed, he has may detain and search, and if he think proper, arrest any person whom he has reasons to believe, have committed any offence punishable under Chapter IV relating to such offence, has been committed. Sub-Section (2) of Section 42 of the Act, which is mandatory in nature, gives a mandate to the Officer that when he takes down an information in writing under Sub-section (1) of Section 42, he shall forthwith send a copy thereof to his immediate superior Officer. In the present case, though PW 9 Murlidhar received a secret information through Arjun Singh Constable and recorded the same in the Roznamcha of the Police Station but he did not forward the same to his superior officer. It has been held by the Supreme Court in the case of The State of Punjab vs. Balbir Singh (supra) that if there is a total non-compliance of the provisions of Section 42 (1) of the Act by not sending the information or the grounds to the immediately superior Officer then that affects the prosecution case. As these mandatory provisions of Sub-section (2) of Section 42 of the Act have not beep complied with and there is a complete non-compliance of this provision, the whole trial, therefore, stands vitiated. As the whole trial stands vitiated on the ground of non-compliance of the mandatory provisions of Section 42 (2) of the Act, it is not necessary to consider and decide the other questions/grounds raised by the learned counsel for the appellant. In the result, the appeal, filed by accused-appellant Mool Chand, is allowed. The judgment dated 31. 5. 93, passed by the learned Sessions Judge, Jaisalmer, is set-aside and the accused- appellant is acquitted of the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant is in jail. He may be released forthwith if he is not required in any other case. . ;