((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.361 OF 1997 The State of Maharashtra Appellant versus Ramchandra Dhokare Respondent Ms.A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 17th March 2009 JUDGEMENT : 1. Heard learned APP for the State. The respondent has been acquitted of the offence punishable under section 20(b)(i) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the said Act"). 2. According to the case of the prosecution one Prakash Daulatrao Kawade, a police officer attached to local Crime Branch, Nashik received an information that the person by the name Ramchandra Eknath Dhokare was possessing Ganja and he was selling Ganja in his residential house situated at Village Khedgaon, Tal. ((-2-)) Dindori. On receipt of the information, the said PW-5 brought two panch witnesses. The raiding party proceeded to the residence of the respondent. On search of the premises of the respondent it was found that there was Ganja of quantity of 4.5 kgs and cash of Rs.35,000/-. The Ganja and the cash amount was seized. Samples of Ganja were sent to the chemical analyser. The order of acquittal of the respondent is mainly on the ground of non compliance with section 42 as well as section 57 of the said Act. 3. The learned APP has taken me through the notes of evidence and other material on record. She submitted that possession of the respondent of contraband has been clearly established and there is no explanation by the respondent. She submitted that there is substantial compliance with the relevant provision of the said Act and therefore the learned Judge has committed an error by passing the order of acquittal. 4. I have carefully considered the submissions. I have perused the evidence of the prosecution witnesses. The requirement of sub sections 1 and 2 of section 42 of the said ((-3-)) Act has been held to be mandatory. A reference can be made to a decision of the Apex Court in case of Mohinder Kumar Vs. State, Panaji, Goa ([1998]8-SCC-655). There is another decision of the Apex Court in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat (2000[5]-Bom.C.R-442). In the latter decision in the case of Abdul Rashid Ibrahim Mansuri (supra) the Apex Court held that if officer receives information that any drug or psychotropic substance is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The Apex Court held that the action of the officer on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Further the Apex Court held that the resultant position will be one of causing prejudice to the accused and therefore in such a case the conviction of the accused cannot be sustained. 5. In the present case, a perusal of the examination-in-chief of PW-5 who allegedly ((-4-)) received the information shows that in the examination-in-chief he has not stated that he reduced the information allegedly received by him in writing and that he had sent a copy of the information to the superior officer. He stated that the note of the information was taken by him in the station diary. However, an extract of the station diary was not produced. Infact, no evidence was adduced to show compliance with sub section 2 of section 42 of the said Act. In view of the law laid down by the Apex Court, non compliance with the said provision caused prejudice to the accused. 6. Apart from this aspect, there is a finding recorded that no evidence was adduced to show that there was compliance with the requirement of section 57 of the said Act and that due to non compliance thereof, a prejudice was caused to the respondent-accused. 7. The view taken by the learned Judge regarding non compliance with the mandatory provisions appears to be a possible view. Hence, no interference is called for. The appeal is accordingly dismissed. ((-5-)) (A.S.OKA, J.) ((-6-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.361 OF 1997 The State of Maharashtra Appellant versus Ramchandra Dhokare Respondent Ms.A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 17th March 2009 JUDGEMENT : 1. For the reasons separately recorded the appeal is dismissed. (A.S.OKA, J.)