JUDGMENT

A.S. Nehra, J. - This appeal is directed against the judgment dated 9.5.1988 passed by the Additional Sessions Judge, Bhatinda, by which the respondent was acquitted of the charge under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

2. The prosecution case, in brief, is as under:-

On 22.5.1987, a police party headed by Head Constable Gurdev Singh was going from village Dhan Singh Khana towards village Raikhana on patrol duty. When the police party reached near the turning to village Dhan Singh Khana, Gurjant Singh P.W. met them and he was associated with the police party. When the police party reached about one furlong from the tri junction towards village Raikhana, Thana Singh accused was seen coming from the opposite side. On seeing police party, the accused threw the gunny bag carried by him on his head and he ran away through the fields. Head Constable Gurdev Singh searched the gunny bag and found it to contain poppy heads. 100 grams out of it, was taken out as sample. The sample and the residue of poppy heads were separately sealed into parcels with the seal of Head Constable Gurdev Singh and taken into possession, vide memo Exhibit P.A. Head Constable Gurdev Singh sent ruqa Exhibit P .B. to Police Station, Kot Fattra, where on its basis, formal F.I.R. (Exhibit P.B.!I) was registered by S.I. Mohinder Singh. Head Constable Gurdev Singh prepared rough site plan and on return to the police station, he produced the case property before S.I. Mohinder Singh who re-sealed it with his seal "M.S." and deposited it with the Moharrir Head Constable. The sample was sent to the Chemical Examiner, Patiala, who vide his report Exhibit P.D., confirmed the same to be poppy heads.

3. In support of its case the prosecution examined P.W. 1 Head Constable Gian Singh and P.W. 2 Head Constable Gurdev Singh. The report (Exhibit P.D.) of the Chemical Examiner, and affidavits, Exhibits P.E., P.F. and P.G. of M.H.C. Bharpur Singh, Constable Bant Singh and H.C. Gian Singh respectively, were tendered in evidence.

4. When examined under section 313 of the Code of Criminal Procedure, the accused denied the allegations against him and pleaded innocence.

5. The learned counsel for the parties have been heard. On behalf of the State, it has been vehemently argued by the learned Deputy Advocate General, Punjab, that the testimony of P.W. 1 Head Constable Gian Singh and P.W. 2 Head Constable Gurdev Singh coupled with the recovery of 10 Kgs. of poppy heads is sufficient to prove the case of the prosecution against the respondent. The argument is devoid of any merit.

6. Notification No. S.O. 33/C.A. 61/85/Ss. 42 and 67/87 dated 3.9.1987 was issued by the Punjab State in pursuance of the provisions of subsection (1) of section 42 and section 67 of the Act, empowering the officers of and above the rank of Assistant Sub Inspector of Police to exercise the powers and perform the duties specified in sections 42 and 67 of the Act within the area of their respective jurisdiction. The State counsel has not been able to show that any such notification was issued prior to 3.9.1987, whereas the alleged recovery of 10 Kgs. of poppy heads was effected from the possession of the respondent on 22.5.1987. At that point of time, police officers of the rank of Assistant Sub Inspector or Sub Inspector had not been legally empowered to exercise the powers and perform the duties concerning seizure of drugs or substances and materials used in the manufacture there Of under section 42 or section 67 of the Act. This is a serious lacuna which goes to the root of the prosecution case. Under section 41 (2) of the Act, only a police officer empowered in this behalf by the State Government by general or special order or an officer subordinate to him but superior in rank of sepoy or a constable duly authorized by such an officer may arrest or search a person on having reason to believe that, that person has committed a