Full Judgment
R.S. Sodhi, J.
1. By this Criminal Appeal, Raj Kumar Kapoor @ Kaka has challenged the order dated 28.10.1999 of the Special Judge, Delhi convicting him under Sections 21/25/61/85 of the NDPS Act, 1985 (for short 'the Act') and the order dated 30.10.1999 sentencing him to undergo rigorous imprisonment for 10 years under Section 21 of the Act together with fine of rupees one lac and in default thereof to undergo further imprisonment for two years. The prosecution case as unfolded by the charge-sheet is that on the basis of secret information reduced into writing, Inspector Mahesh Chand Sharma arranged for a raiding party and apprehended a scooter No. DL-8S-.1520 on 7.7,1996 at about 10.15 P.M. at the Southern Western Side, Guru Sai Dutt Parmanand Colony and after serving the notice under Section 50 of the Act, recovered 100 grams of heroin from his possession, which was taken into possession and a sample of 5 grams was drawn from it and separately sealed. A sample was got Chemically analysed and found to be heroin. The case against Desh Raj is that he had abated and helped Raj Kumar to deal in Smack. The prosecution in order to bring home the guilt of the accused, examined as many as 11 witnesses. The learned Special Judge, on a perusal of the evidence, returned the finding that the appellant is guilty of offence committed under Section 21 of the NDPS Act for having possession of 100 grams of heorin. His co-accused Desh Raj was acquitted of all the charges. The learned Special Judge by his order dated 30.10.1999 was pleased, to sentence the appellant for 10 years under Section 21 together with fine Rs. one lac and in default thereof to further undergo imprisonment for two years. At the threshold, learned counsel for the appellant has argued that there is violation of Section 42(2) of the NDPS Act inasmuch as the secret information taken down was not forwarded to the superior officers as required by Section 42(2) of the Act. He argues that Section 42(2) is mandatory and its non-compliance v fuld vitiate the trial. He draws my attention to Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 SCC 496 where it is held that Section 42 is mandatory and if this mandatory provision is violated, inherent prejudice to the accused has to be read into the violation. That being so, the conviction would suffer. The law does not look kindly upon violation of mandatory provisions specially in an enactment, which spells drastic consequences. Its compliance must be ensured in letter and spirit. Any violation of the mandatory requirements must ensure to the benefit of the accused. In the present case, the Investigation Officer, in his deposition states as follows:
'I have not informed the Sr. Officer about the receiving the secret information nor I have been included any Gazetted Officer in the raiding party as there was no time at that moment. The secret information was sent to the Sr. Officer later on after completion of the investigation.'
2. A reading of the above leaves no manner of doubt that Section 42(2) has been violated. The Supreme Court has ruled that Section 42 is mandatory in nature, its non-compliance cannot be handled with butter fingers but must be forward upon. Prejudice caused to the accused must necessarily be read to his benefit. The Supreme court in Abdul Rashid Ibrahim Mansuri's case (supra), while dealing with Section 42(2) of the Act has referred, with approval, another judgment of the Supreme Court in State of Punjab v. Balbir Singh, : 1994 CriLJ3702 and has quoted the following paragraph :
'25. (2-C) 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 reason to believe 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 or search without a 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.
3. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) 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. Ifthere is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it wasundue or whether the same has been explained or not, will be a question offact in each case.
4. Again in Koluttumottil Razak v. State of Kerala, 2000 SCC 829 the Supreme Court has held as under :
'6. It is a mandate of Section 42 of the Act that when an office referred to in Sub-section (1) thereof 'has reason to believe from personal knowledge or information given by any person and taken down in writing' that any narcotic drug or psychotropic substance is kept or concealed he may detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence under the Act. The other requirement of law is that the officer who takes down the information in writing of records grounds for his belief shall forthwith send a copy thereof to his immediate official superior. A three-Judge Bench of this Court held in Abdul Rashid Ibrahim Mansuri v. State of Gujarat that non-compliance with the requirements of Sections 42(1) and (2) would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings.'
5. It appears that the Supreme Court, while dealing with violation of Section 42 of the Act, has held that any violation thereof would certainly cause prejudice to the accused as would be caused in a violation under Section 50 of the Act, If that be so, although it could be argued that the trial is not vitiated, certainly the conviction on this score must suffer. The Supreme Court holds that the impact of non-compliance of Section 50 of the Act would affect the prosecution's case and vitiate the trial, non-compliance of Section 42 ipso facto may not vitiate the trial, but certainly would causeprejudice to the accused. Prejudice need not be pleaded nor proved. It is an in-builtconsequence of violation of the mandatory provision, thereforee, benefit of theprejudice must go to the accused. The foundation of the prosecution's case dependsupon recording of the information under Section 42(1) of the Act and sending a copythereof to the superior officer under Section 42(2). This is a check. Violation of thiswould necessarily mean that any action taken pursuant to the aforesaid information istainted and must be looked at with great care. In the present case, except for the ipsedixit of the Investigating Officer, there is nothing on record to show that the searchwas conducted in accordance with law.
6. In this view of the matter, I set aside the order and judgment under appeal andallow the Criminal Appeal No. 618/99. The appellant be set at liberty if not wanted inany other case.