IMPORTANT POINT
Only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

ORDER

D.K. Sinha, J.—The present Criminal Revision Application is directed against the order impugned passed by the Special Judge, Bokaro in G.R. No. 398/05 arising out of Chas P.S. Case No. 66/05 registered under Sections 21, 22, 26 and 27, N.D.P.S. Act on 7.7.2006 whereby and whereunder the petition filed under Section 227 of the Code of Criminal Procedure for the discharge of the petitioners was rejected and a date was fixed for framing of charge against the petitioners for the offence under Section 22 of the NDPS Act for contravention of the provisions in relation to psychotropic substances.

2. The prosecution story lies in a narrow compass.

3. The Chas police intercepted six persons on tip off from a public lane on 16.4.2005 who were addicted in common habit of taking “Fortwin” injections with the help of disposable syringes having its popular brand name “'pentazocine.” On such arrest all the six, confessed having been habitual of taking such psychotropic drugs and further admitted having purchased the same without prescription of a registered doctor from the shop of the petitioners named and styled as Rajesh Medico, Gandhipath, Chas. Pursuant to such confessional statement the police conducted raid on the same day in the shop of the petitioners from where six packets, each containing 12 injections vial with separate 8 vials were seized in presence of the petitioners with the same and similar batch number as it were recovered from the possession of the accused. Seizure list was prepared in presence of the witnesses and the petitioners who were present in the “Rajesh Medico” were forwarded to judicial custody.

4. Mr. Rajesh Kumar, learned Counsel for the petitioners submitted that the real owner of the Rajesh Medical was Rohit Kumar and the licence in form 20B was issued by Licensing Authority in the name of Rohit Kumar Barnwal who is the son of the petitioner No.1 Basant Lal Barnwal and the bother of the petitioner No.2 Ranjit Kumar. Licence was issued on 14.8.2003 valid from 14.8.2002 to 13.8.2008 (Annexure-2) Mr. Kumar further submitted that the petitioners were not at all concerned with the business of Rohit Kumar either with his medicines or medicine shop “Rajesh Medico” and hence no offence is made out against the petitioners under Section 22 of the NDPS Act. It was a matter of chance that the petitioners were sitting in the shop since Rohit Kumar had gone out of the shop for some urgent piece of work asking the petitioners to stay in the shop till his arrival.

5. Advancing his argument Mr. Kumar submitted that the petitioner Basant Lal Barnwal aged about 72 years is suffering from multiple join pain as a result of which his legs have no proper functioning over and above a patient of Glaucoma, causing partial blindness. Both the petitioners were living in village Dhamna, District Jamui (Bihar) and the petitioner No.2 had taken his father to Bokaro for the treatment of his eyes and that he was under treatment of Dr. Randhir Kumar Singh. On the date of occurrence they had been to the medicine shop of Rohit Kumar with the prescription of Dr. Randhir Kumar Singh for taking the medicine where they were asked to wait. He further submitted that the petitioner No.1 was having his own business under Public Distribution System at village Dhamna and for that licence has been issued in his name. His son i.e. petitioner No.2 helps his father in the business of ration shop for the partial blindness of his father and neither of the petitioners had any concern with the business of medicine or the medicine shop of Rohit Kumar.

6. On the point of law Mr. Rajesh Kumar submitted that the search and seizure was conducted by a police officer of the rank in contravention to the provisions of Sections 42, 43, 53 and 54 of the NDPS Act, who was not empowered to conduct raid, search and seizure without authority.

7. Concluding his argument Mr. Kumar submitted that the search and seizure of the alleged psychotropic substance and arrest of t