J.B. Koshy, J.

An important question of law was referred to the Division Bench by Justice M.R. Hariharan Nair disagreeing with the view taken by the Single Judge inSoumini v. State of Kerala (2001 (2) KLT 546 = 2001 (2) KLJ 37). According to the above decision, the notification empowering all the officers in the police department of and above the rank of S.I. etc. to exercise the power of entry, search-seizure and arrest without warrant or authorisation mentioned under S.42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 thereinafter referred to as NDPS Act) cannot be acted upon as the same is not placed before the Legislature and made it a Rule. S.42 of the NDPS Act (wrongly mentioned in the above judgment as rules) reads as follows:

"42. Power of entry, search, seizure and arrest without warrant or authorisation:

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of 'a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe any furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be Obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-s.(1) or records grounds for this belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior." (underlining done by us only for emphasis)

2. The above section is very clear that the State Government has got power to issue general or special order authorising any officer in Police and other department superior in rank to a peon, sepoy or constable with power of entry, search, seizure and arrest without warrant or authorisation under S.42 of the Act. For that a rule need not be framed or proceedings for framing rules need not be accepted with. In exercise of the powers conferred under sub-s.(1) of Ss.42 and 67.of the NDPS Act, the following notification G.O. (MS) No.146/90/TD dated 22.10.1990 was published, empowering all officers of the Police department of and above the rank of S.I. of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise t