The main legal point established in the judgment is the requirement for an empowered officer to conduct the search and seizure under the NDPS Act, and the implications of non-compliance with the provisions of Section 50.

R.S. Garg, J.

1. The appellant being aggrieved by the judgment dated 29-2-200 passed in Special Case No. 86/99 by the learned Special Judge (NDPS) Raipur, convicting the appellant under Section 20(b) of the N.D.P.S. Act read with Section 8 of the said Act and sentencing him to undergo R.I. for two years and to pay fine of Rs. 2000/-, in default of payment of fine to further undergo R.I. for two months, has filed this appeal.

2. The prosecution case in brief is that on 11-9-99 Head Constable B.L. Sahu (P.W. 3) of Police Station Saraipali was on patrol for checking certain vehicles etc. At about 4.30 A.M. on 12-9-99 while seeing an on-coming bus No. O.R. 05/1765 the said head constable stopped the bus. Finding that the present appellant was sitting on the back seat and was engaged in suspicious activities, the said head constable issued him a notice under Section 50 of the N.D.P.S. Act and after taking the consent of the said person (accused) took his search. In the said search about 6 kgs. of Ganja was recovered from the possession of the appellant. The said contraband was weighed on the spot and was thereafter seized by the said head constable. The accused so also the contraband were brought to the police station. FIR was registered at the police station. The samples were drawn and were sent for the analysis. After obtaining the positive analytical report the Police armed with such report, the seizure memo and the statements of the witnesses filed the challan. As the accused denied commission of the offence, he was put to trial. The prosecution agency in support of its case examined as many as five witnesses, and produced number of documents. After hearing the parties the Trial Court was pleased to convict and sentence the appellant as referred to above.

3. Shri Ashish Shukla, learned counsel appearing for the appellant submits that the head constable is not an empowered officer either under Section 41,42 or 43 of the N.D.P.S. Act, 1985, therefore, the search and seizure effected by him are illegal and in view of the judgment of the Supreme Court in the matter of State of Punjab Vs. Balbir Singh, 1994 III SCC 299 and State of Punjab Vs. Baldev Singh, 1999 VI SCC 172, the appellant deserves to be acquitted. It is submitted by him that if a particular police official is not empowered under the Act by chance or accidentally finds some contraband, then he is not required to observe the provisions of Section 50 of the N.D.P.S. Act, but the moment he finds that there is breach of provisions of NDPS Act and he himself is not empowered then such officer should stop and should require an empowered officer to proceed further. According to him, the search was taken by the head constable and as the seizure was effected by him without any authority of law or without any authorisation under Sections 41, 42 and 43 of the NDPS Act, the articles seized by him can not be looked into nor can same be used as evidence against the accused.

4. Shri Deep Kesharwani learned counsel appearing for the State on the other hand submits that in the present case P.W. 3 accidentally found that the accused was carrying some narcotics with him and as he himself was not empowered under Sections 41, 42 and 43, necessity of compliance of Section 50 of the NDPS Act does not arise and as the search was taken by him, he was entitled to seize the articles. He further submits that seizure of the articles at best may be an irregularity and unless the prejudice is shown by the accused, the said irregularity shall not affect the prosecution case or the conviction.

5. I have heard the parties at length and perused the record.

6. Before coming to the core question regarding authorisation and authority of P.W. 3 B.L. Sahu, it is necessary to see his statement.

7. B.L. Sahu (P.W. 3) in Paragraph 2 of his statement has clearly stated that while checking Bus No. OR 05/1765 he found that a person was perplexed and was looking suspicious. He issued him a notice under Section 50