Subhro Kamal Mukherjee, J.

Acting on specific information on August 4, 2013 at about 7 a.m., a batch of officers of Narcotics Control Bureau (hereinafter referred to as ‘NCB’) reached Netaji Subhas Chandra Bose International Airport at about 8.30 a.m.

The petitioners were located. The officers of NCB informed the petitioners about their intention to search them.

Two onlookers, namely, Ravi Das and Uttam Chowdhury, were requested to act as independent witnesses.

The petitioners were searched in presence of the Superintendent of Kolkata Zonal Unit, accompanying the NCB party. The petitioners and their luggage were searched. From the luggage of petitioner No. 1 five packets containing blue capsules were recovered. The capsules were found to contain "Dextropropoxyphene". Chemical analysis of the capsules indicate that they contain Dextropropoxyphene, Acetaminophen (Paracetamol), and Dicylomine. These are substances used as medicine for a long time. Dicyclomine and Acetaminophen are not Narcotic Drugs or Psychotropic Substances.

On May 23, 2013 the Government of India, by a notification issued under section 26A of the Drugs and Cosmetics Act, 1940, has prohibited the manufacture for sale, sale and distribution of Dextropropoxyphene. Possession of Dextropropoxyphene simplicitor has not been prohibited. It would appear from paragraph 1 of the complaint that the Superintendent, Kolkata Zonal Unit, led the team of NCB officers and staff. The complaint shows that the apprehended persons were informed that the team of officers of NCB consists of the Superintendent of Kolkata Zonal Unit. There was a body search of the apprehended persons and their respective baggage was, also, searched.

Sub-section (1) of Section 50 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’) contains that "When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.”

This shows that the Gazetted Officer of the departments mentioned in Section 42 or the nearest Magistrate can never be a member of the raiding party; the apprehended person has to be taken before such Gazetted Officer or Magistrate, if the person opts to be taken before such functionary, for a decision to be taken on whether search will be made or not. Moreover, Sections 41, 42 and 43 of the NDPS Act deal with different situations for search of a person and other things like building, conveyance, place etc. Sub-section (1) of Section 41 of the NDPS Act deals with magisterial order for arrest of a person or search of a building, conveyance or place. Sub-section (2) of Section 41 of the NDPS Act, enumerates law with regard to search of any building, conveyance, place by any officer authorised by the empowered officer. Section 42 of the NDPS Act delineates powers of officers empowered by the Central Government or by the State Government to enter into and search any building, conveyance or place, and to seize drugs or other substances.

Section 43 of the NDPS Act provides for power of search and seizure in public place or transit by any officer of the departments mentioned in Section 42 of the NDPS Act. Sub-section (4) of Section 43 of the NDPS Act authorises such officer to detain a person, to search the person and if such person has Narcotic Drug in his possession to arrest him. Section 43 of the NDPS Act, also, explains the word "public place" which includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public.

My reading of Section 50 (1) of NDPS Act and that of Sections 41, 42 and 43 of the NDPS Act is that search of the body of the person concerned can be followed by search of building, conveyance, place, etc. and in acting under the p