This appeal is directed against the judgment dated 25.2.97 passed by the learned Special Judge, Tinsukia in NDPS Case No.6 (T) of 1994 convicting the appellant under section 20 (B) (1) of the NDPS Act, 1985 and sentencing him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.2,000 in default, to undergo rigorous imprisonment for one year.

2. The appellant being highly aggrieved by the aforesaid judgment of conviction and sentence has preferred this appeal controverting the legality and validity of the judgment on various grounds. Shri Saha, learned counsel for the appellant, during the course of argument assailed the decision on the ground that the ingredients of offence under section 20 (B) (1) of the Act are lacking in the instant case inasmuch as there is no evidence to show that 'Ganja' was seized from the possession of the appellant. Besides, it has been argued that the learned Special Judge has failed to consider the evidence of the witnesses in proper perspective and also did not consider the validity of the investigation done by an officer not empowered under the Act to investigate an offence under the NDPS Act. In addition, the learned counsel also raised grievance on the ground that the provisions of section 41 of the NDPS Act have not been complied with.

3. A search was carried out in the residential premises of Ramayan Sahani and appellant-Kailash Chowdhury on 12.3.94 at about 10.30 AM by Shri Gauri & Kanta Lahkar, Sub Inspector of Police attached with Dhalla Police Station of Tinsukia District in presence of witnesses and seized 600 Gms of Ganja an the sample thereof was sent to expert, and the expert reported positive test of cannabis (Ganja). On completion of investigation, the police submitted charge sheet against the aforesaid persons. The trial proceeded against the appellant alone as the presence of other accused Ramayan Sahani could not be procured. The appellant was indicted for an offence under section 20 of NDPS Act to which he pleaded not guilty. Prosecution examined as many as 6 witnesses whereas the defence examined none. On conclusion of trial, the learned Special Judge awarded the verdict of guilt and imposed the sentence as stated above.

4. The prime question that affects the genesis of the prosecution case is whether the investigation by an officer not being an empowered officer or authorised officer under section 41 (2) of the NDPS Act is sustainable in law and the conviction recorded thereon could be upheld.

5. PW 6, Shri Gauri Kanta Lahkar, who had carried out the search and seizure and investigation in the instant case is a Sub Inspector of Police attached with Dhalla Police Station. According to him, the appellant and his accomplish were apprehended by Assistant Sub Inspector, Jatin Gogoi and after interrogation of the arrested persons their houses were searched. During search they found 600 Gms of Ganja which was seized by him by seizure list Ext 4. The witness further stated that he had arrested the accused persons and forwarded them to Court and after completion of investigation charge sheet was submitted by him. During the course of cross examination he stated that he did not take permission of any superior officer other than the Officer-in-Charge of the Police Station to investigate the case. He further proved Ext 5, the complaint petition addressed to the Officer-in-charge of the Police Station lodged by him.

6.1 have examined the record of the learned Court below. There is nothing on record to show that the officer concerned has been authorised to exercise the powers under sub-section (2) of section 41. No notification could be produced, even at the stage of argument before this Court, by the learned Public Prosecutor to show that the officer concerned has been empowered by the State Govt to exercise the powers under the Act. It, therefore, appears that the search, seizure, arrest of the appellant and even the investigation stand vitiated for lack of sanction of law. This

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