The search and seizure conducted by a police officer who is not empowered under Section 42 or 43 of the NDPS Act is illegal and vitiates the trial.

Gopal Lal Gupta, J.-This appeal is directed against the Judgment dated 8-7-94 passed by the learned Sessions Judge. Sri Ganganagar convicting the appellant Gurdev Singh under Section 8 read with Section 15 of the NDPS Act and sentencing him to undergo R.I. for 10 years and pay a fine Of Rs. 1,000/ -: in default 6 months further R.I.

2. The prosecution case, in brief , is that on 18-5-93 PW 4 Kashi Ram, SI Police Station, Sadar, Sri Ganganagar received information from a ‘Mukhbir’ that a person was going towards Punjab taking powder of ‘Posta’ (Poppy). He therefore, went along with other police persons and two ‘motbirs’ on the Kachcha Rasta near Gunjal and there he found a Sikh Gentleman carrying one packet on his head and when accosted he disclosed his name as Gurdev Singh and told that he was having ‘Posta’. Shri Kashi Ram took out a sample from the dried crushed capsules of Poppy and sealed the same. The remaining article was also sealed. Thereafter, a report was lodged at the Police Station, Sadar, Sri Ganganagar where a case was registered. Sample was sent to the State Forensic Science Laboratory, Rajasthan, Jaipur and the Chemical Examiner reported that the sample gave positive test for the presence of chief constituent of opium and the sample is of dried crushed capsules of poppy. The police after completing the investigation, submitted a challan. The accused denied having committed any offence. The prosecution examined PW 1 Bhajanlal, PW 2 Badri Ram, PW 3 Jogendra Singh, PW 4 Kashi Ram, PW 5 Bhagwan Singh and PW 6 Makhan Singh. The learned Sessions Judge convicted and sentenced the appellant as above.

.3. Arguments of learned Counsel for the appellant and the learned P.P. appearing for the State respondent have been heard and record perused. The contention of the learned Counsel for the appellant is threefold:-

.(i) Shri Kashi Ram was not empowered to make seizure and arrest the accused;

.(ii) It is not proved on record that the sample remained intact till it reached the FSL;

.(iii) Themotbirs have not supported the recovery of contraband article from the accused and there are material contradictions in the statements of the two police officers.

4. Asagainst this, the learned P.P. contends that the learned trial Judge has dealt with the contentions raised on behalf of the accused and there is no case to interfere in the finding of the learned trial Court.

5. KashiRam PW 4 who has made search and seized the article, was Sub Inspector at the relevant time. It has come in the statement that Shri Ravi Prakash was the SHO of the Police Station but he had gone out and as such he was incharge of SHO. Section 42 of the NDPS Act provides that an officer of the police who is empowered in this behalf by general or special order of the State Govt. may detain and search and if thinks proper arrest any person to whom 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. The State Govt. in this connection has issued 50 115 on 16th of Oct., 1986 which has been read by the learned trial Judge in his Judgment . According to this Notification only Inspector of the Police or the Sub Inspectors of Police who are posted as SHOs are empowered to exercise the powers mentioned in Section 42 of the Act. It is, thus, clear that Shri Kashi Ram who was only Sub Inspector could exercise the powers under Section 42 or Section 43 of the Act only when he was posted as SHO. The learned trial Court itself has observed at paras 24 & 25 of the Judgment that Shri Kashi Ram was not the empowered Officer. Of course, Shri Kashi Ram has deposed that he was incharge SHO but no docume