JUDGMENT - M.B. SHAH, C.J. :---The Division Bench consisting of G.R. Majithia and Vishnu Sahai, JJ., by order dated June 16, 1995 differed with the view taken by the Division Bench consisting of V.H. Bhairavia P.S. Patankar, JJ., on 21st/24th October, 1994 in Criminal Appeal No. 416 of 1993 by observing that the view taken therein requires reconsideration in view of the law laid down by the Apex Court in (Mohinder Kumar v. The State of Panaji)1, A.I.R. 1995 S.C. 1157.

2. In Mohinder Kumar's case, the Investigation Officer was not an empowered officer and on coming to know about the accused person being in custody of offending articles, he was required to follow the procedure prescribed under section 42 of the Act before carrying out further search and seizure. The person of the accused was searched and two packets of charas were recovered and samples from the said packets were taken. In that context the Court observed that he did not adhere to the provisions of section 50 of the Act and in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory in Balbir Singh's case, was not followed. The Court further held that further procedure provided in sections 52 and 57 of the Act, which deals with the steps to be taken by the officer after making arrest and seizure, which are mandatory in character, were not followed and, therefore, the accused was acquitted. Paragraph 3 of the said judgment reads thus :

".....In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panchas and on their arrival drew up the panchanama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by section 42(2) of the Act because he had not made any record under the proviso to section 42(1). He also did not adhere to the provisions of section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case, it has been further stated that the provisions of sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted." (Underlining is ours)

3. On the basis of the aforesaid judgment it is contended that even in a case where the search had been carried out without prior information and the officer carrying out the search himself happens to be an empowered officer, then from the stage he had reason to believe that the ac

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