An officer below the rank of Inspector is not authorized under the NDPS Act to conduct searches and seizures, and any such search and seizure is illegal and vitiates the entire trial.

N.N.Singh, J.

1. This appeal is directed against the judgment of conviction and order of sentence dated 23.3.96 passed by 1st Additional Sessions Judge, Dumka in Sessions Trial No. 83 of 1995 by which all three appellants were convicted under section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as N.D.P.S. Act) and was sentenced to undergo rigorous imprisonment for two years.

2. The prosecution case, in short is that on 30th June, 1994 the house of these appellants was searched and 150 grams of green leaves of ganja was found kept in a bag in one of the rooms and behind the house of the appellants, 60 plants of ganja were found which was seized in presence of witnesses Sahru Rai (P.W. 1) and Sanichac Rai (P.W. 2) and seizure lists were prepared which were marked as Exts. 2 and 2/1. Sri K.P. Singh (P.W. 6) the Officer Incharge of Taljhari Police station submitted written report (Ext. 3) on the basis of which Jarmundi P.S. Case No. 76 of 1994 was registered against these appellants and the police, after due investigation, submitted chargesheet against these three appellants who belonged to same family and appellant no. 1 was the father and rest two appellants were sons of appellant no. 1 and after cognizance and commitment appellants were put on trial and were convicted as aforesaid.

3. The defence, as gathered from the suggestions put to P.Ws. and from the statement of appellants under section 313 of the Cr.P.C, was that these appellants were falsely implicated in this case and that seized ganja was much below the exemption limit as provided under Government Circular for treating that as, small quantity for persona! consumption.

4. The prosecution examined altogether six witnesses in support of its case out of whom P.W. 5 A.S.I. Kalimuddin was tendered for cross-examination. P.W. 1 Sahru Rai and P.W. 2 Sanichar Rai were seizure list witnesses who proved their signatures as Ext. 1 and Ext. 1/1 on the seizure lists Ext. 2 and 2/1. P.W. 3 is constable Om Prakash Singh and P.W. 4 is A.S.I. Krishna Singh. P.W. 6 S.I. Kamal Pd. Singh is the investigating officer in this case.

5. Miss Kamlesh Jain, the learned counsel for the appellants contended that only 150 grams of ganja leaves and 60 plants of ganja which had grown on the back side of the house were allegedly recovered from the possession of these appellants but the trial court in paragraph-16 of its judgment rightly held that those ganja plants were wild growth and that it did not constitute any separate offence itself. It was also pointed out that the trial court while discussing the point of sentence has clearly mentioned that this tribal area has no cultivation of any kind of narcotic drugs and psychotropic substances. Miss Jain further pointed out that in Circular No. S.O. 827(E) dated 14.11.85 it was provided that 500 grams of ganja was to be treated as "small quantity" for personal consumption, it was further contended that as the seized ganja leaves were below exemption limit provided under the above Circular, no offence is made out against these appellants and they are entitled to get acquittal in this case.

6. Miss Jain further argued that in this case both seizure list witnesses P.W. 1 Sahru Rai and P.W. 2 Sanichar Rai did not support the prosecution case of seizure of 150 grams of ganja leaves and ganja plants in their presence and the rest witnesses are all constables, A.S.I. and I. O. who were in the raiding party and as such cannot be treated as independent witnesses. It was also argued that in absence of any general or special order under section 42 of the Act, P.W. 6 was not empowered to make search and seizure under the Act.

7. Under S.O. No. 880 dated 5.9.1988, under section 41(1) of N.D.P.S. Act, only officers of and above the rank of Inspectors were specially empowered to make search and seizure. S.I. K.P. Singh (P.W. 6), thus, was not specially authorised under N.D.P.S. Act to make search or seize the material